The defendants sent out a circular, as follows:- “We are instructed to offer to the wholesale trade for sale by tender the stock in trade of A., amounting, &c., and which will be sold at a discount in one lot: payment to be made in cash: the tenders will be received and opened at our offices,” &c.:-
Held, that this did not amount to a contract or promise to sell to the person who made the highest tender.
THE second count of the declaration stated that the defendants by their agents issued to the plaintiffs and other persons engaged in the wholesale trade, a circular in the words and figures following, that is to say, “28, King Street, Cheapside, May 17th, 1869. We are instructed to offer to the wholesale trade for sale by tender the stock in trade of Messrs. G. Eilbeck & Co., of No. 1, Milk Street, amounting as per stock-book to 2503l. 13s. 1d., and which will be sold at a discount in one lot. Payment to be made in cash. The stock may be viewed on the premises, No. 1, Milk Street, up to Thursday, the 20th instant, on which day, at 12 o’clock at noon precisely, the tenders will be received and opened at our offices. Should you tender and not attend the sale, please address to us sealed and inclosed, ‘Tender for Eilbeck’s stock.’ Stock-books
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may be had at our offices on Tuesday morning. Honey, Humphreys, & Co.:” And the defendants offered and undertook to sell the said stock to the highest bidder for cash, and to receive and open the tenders delivered to them or their agents in that behalf, according to the true intent and meaning of the said circular: And the plaintiffs thereupon sent to the said agents of the defendants a tender for the said goods, in accordance with the said circular, and also attended the said sale at the time and place named in the said circular: And the said tender of the plaintiffs was the highest tender received by the defendants or their agents in that behalf: And the plaintiffs were ready and willing to pay for the said goods according to the true intent and meaning of the said circular: And all conditions were performed, &c., to entitle the plaintiffs to have their said tender accepted by the defendants, and to be declared the purchasers of the said goods according to the true intent and meaning of the said circular; yet the defendants refused to accept the said tender of the plaintiffs, and refused to sell the said goods to the plaintiffs, and refused to open the said tender or proceed with the sale of the said goods, in accordance with their said offer and undertaking in that behalf, whereby the plaintiffs had been deprived of profit, &c.
Demurrer, on the ground that the count shewed no promise to accept the plaintiffs’ tender or sell them the goods. Joinder.
Holl, in support of the demurrer. Although the declaration is somewhat ambiguous, it is evidently intended to raise the question whether one who advertises for tenders for the purchase of goods thereby engages to sell them to the highest bidder. The nearest analogous case is that of an advertisement for tenders for building. it has never been held or suggested that the advertiser is bound to accept the lowest tender. Suppose here there had been only one tender, would the defendants have been bound to accept that? The advertisement clearly does not amount to a contract; it only invites offers.
Morgan Lloyd, contrà. The words of the circular and the averments in the declaration taken together, disclose a contract on the part of the defendants to sell the goods to whoever should make the highest tender. This is not like the case of tenders for a
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building. There, the acceptance of the lowest tender is always subject to the architect’s judgment as to the character and capacity of the builder. Here, the offer is to sell for cash. The allegation in the count may be sustained either by evidence of a direct promise, or by evidence of the custom of the trade.
[WILLES, J. All the averments are governed by the words, “according to the true intent and meaning of the said circular.” It therefore comes round to the question, what is the true meaning of that document.]
The nearest analogy is that of advertisements offering rewards for the discovery and conviction of an offender, of which one of the leading instances is the case of Williams v. Cawardine (1), where Littledale, J., says: “The advertisement amounts to a general promise to give a sum of money to any person who shall give information which might lead to the discovery of the offender.”
WILLES, J. I am of opinion that the defendants are entitled to judgment. The action is brought against persons who issued a circular offering a stock for sale by tender, to be sold at a discount in one lot. The plaintiffs sent in a tender which turned out to be the highest, but which was not accepted. They now insist that the circular amounts to a contract or promise to sell the goods to the highest bidder, that is, in this case, to the person who should tender for them at the smallest rate of discount; and reliance is placed on the cases as to rewards offered for the discovery of an offender. In those cases, however, there never was any doubt that the advertisement amounted to a promise to pay the money to the person who first gave information. The difficulty suggested was that it was a contract with all the world. But that, of course, was soon overruled. It was an offer to become liable to any person who before the offer should be retracted should happen to be the person to fulfil the contract of which the advertisement was an offer or tender. That is not the sort of difficulty which presents itself here. If the circular had gone on, “and we undertake to sell to the highest bidder,” the reward cases would have applied, and there would have been a good contract in respect of the persons.But the question is, whether there is here any offer to enter
(1) 4 B. & Ad. 621, 623. And see Thatcher v. England, 3 C. B. 254.
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into a contract at all, or whether the circular amounts to anything more than a mere proclamation that the defendants are ready to chaffer for the sale of the goods, and to receive offers for the purchase of them.In advertisements for tenders for buildings it is not usual to say that the contract will be given to the lowest bidder, and it is not always that the contract is made with the lowest bidder. Here there is a total absence of any words to intimate that the highest bidder is to be the purchaser. It is a mere attempt to ascertain whether an offer can be obtained within such a margin as the sellers are willing to adopt.
KEATING and MONTAGUE SMITH, JJ. , concurred.
Attorneys for plaintiffs: Herbert, Lloyd, & Lane.
Attorneys for defendants: Reed, Phelps, & Sidgwick.