dissenting:
I agree with the majority that § 14-105 of the Real Property Article does not apply to auctioneers. I disagree, however, that, under the circumstances of this case, an auctioneer is an agent who is not entitled to a commission when the purchaser fails to carry out the contract of sale. I, therefore, respectfully dissent.
An auctioneer is an agent who is authorized to sell goods or real estate at a public sale. City of Chicago v. Ornstein, *141323 Ill. 258, 154 N.E. 100 (1926). When an auctioneer’s authority is based upon an express contract the terms of the contract govern. Wilcher v. Mcquire, 537 S.W.2d 844 (Mo. App. 1976). The seller may set the manner and terms of the auction and the auctioneer is required to adhere to such terms in good faith and in the interest of the vendor. F. Tiffany, Handbook of the Law of Principal and Agency, 77 (R. Powell, 2nd edition 1924); Becker v. Crabb, 223 Ky. 549, 4 S.W.2d 370, 371 (1928).
Although the employment agreement may specifically provide that an auctioneer’s duties are to extend beyond the sale and to the settlement, when there is an exclusive contract which confines the duties of the auctioneer to a certain time period and within such period those duties are discharged, the auctioneer is entitled to his commission.1 At a public auction the sale is completed when the auctioneer announces it by the fall of his hammer or another customary manner.2
*142As I see it, in the instant case, the contract between the auctioneer and the owner of the property is clear and unambiguous. Billig was given an exclusive employment contract for 30 days within which it was to sell the owner’s property and receive a 5 percent commission. If the owner or another agency had sold the property during this 30 day period, Billig would have been entitled to a commission of 5% of the sale price. If the owners had withdrawn the property from sale at the auction Billig would have been entitled to a commission on $246,000 plus advertising costs. Only if no sale occurred because of inadequate bids would Billig be entitled to less than its full commission, i.e., the nominal fee of $750.00 plus advertising costs.
I find no ground to read into the contract a condition limiting the auctioneer’s entitlement to a commission based on .whether or not the purchaser consummated the sale, as that term is interpreted in cases dealing with real estate brokers. The contract did not condition Billig’s commission on the transfer of title and it seems clear that when the parties used the word "sell” they were using it in the context of auctioneering, i.e., that the auctioneer would conduct the auction so as to effect a contract to sell when the bidding was concluded. The owners could have provided otherwise, i.e., that payment of the commission would come from the total proceeds of sale or that the full commission would be contingent on the transfer of title. They did not do so. And, as we stated in DeFranceaux Realty Group v. Leeth, 283 Md. 611, 618, 391 A.2d 1209 (1978), "Absent [a showing of fraud or duress] we [should] not rewrite a contract now to suit parties which would have been more favorable to their interests.”
Accordingly, Billig is entitled to its commission under the terms of the contract and the judgment of the Court of Special Appeals should be affirmed.
. It is clear that the seller in this case did not intend to condition Billig’s commission upon the purchaser’s full compliance with the terms of the sale contract because Billig’s contract expired 30 days after its execution while the purchaser had 60 days after the auction to consummate the sale.
. As to personalty, see Maryland Code (1975), § 2-328 (2) of the Commercial Law Article, Feaster Trucking Service, Inc. v. Parks-Davis Auctioneers, Inc., 211 Kan. 78, 505 P.2d 612 (1973); Employers Liability Assur. Corporation v. Sweatt, 95 N.H. 31, 57 A.2d 157 (1948); Lott v. Delmar, 2 N.J. 229, 66 A.2d 25 (1949). As to realty see Blossom v. Railroad Company, 70 U.S. (3 Wall.) 196, 18 L.Ed. 43 (1865) (as soon as the hammer is struck down the bargain is considered as concluded); Tillman v. Dunman, 114 Ga. 406, 40 S.E. 244 (1901) (bidder at judicial sale of property has no right to compel conveyance until property has been knocked off to him); State v. Kahua Ranch Ltd., 47 Hawaii 28 384 P.2d 581 (1963) (contract between parties for the sale of public lands made upon the fall of the hammer at auction); Forbes v. Wells Beach Casino, 307 A.2d 210 (Me. 1973) (principles of Uniform Commercial Code relating to auctioning of goods apply to real property); Anderson v. Wisconsin Cent. Ry. Co., 107 Minn. 296, 120 N.W. 39 (1909) (bid at auction for building not binding until hammer falls); Lyche v. Steele County, 72 N.D. 238, 6 N.W.2d 92 (1942) (rules governing sale of property acquired by county through tax deed are analogous to rules governing auctions — contract becomes complete when bid is accepted); Freeman v. Poole, 37 R.I. 489, 93 A. 786 (1915) (same rules apply in the auctioning of real or personal property); Matthews v. Linn, 78 S.D. 203, 99 N.W.2d 885 (1959) (when auctioneer accepts bid the auction is complete).