Continental Can Co. v. Commercial Waterway District No. 1

Hunter, J.

— This is an action instituted by the plaintiff corporation against the defendant Commercial Waterway District No. 1 and its commissioners, to compel the defendants to issue a deed and title insurance to the plaintiff for certain property which the plaintiff alleges it purchased at public auction. The facts are not in dispute.

In pursuance of Laws of 1911, chapter 11, § 8, p. 21, RCW 91.04.200; Laws of 1945, chapter 254, § 7, p. 762, RCW 36.34-.080; Laws of 1945, chapter 254, § 8, p. 762, RCW 36.34.090; and Laws of 1945, chapter 254, § 9, p. 762, RCW 36.34.100, certain real property belonging to the defendant district was advertised for sale at public auction. The property consisted of a small strip of real estate which was a part of the abandoned bed of the Duwamish river. The auction was conducted in the regular manner and the notice of sale was posted and published as required by statute. The following language appears in the notice of sale:

“. . . The commissioners reserve the right to reject any and all bids received. ...”

*458On the day of sale, June 4, 1958, the auctioneer read the notice of sale prior to the call for bids, omitting only the description of the property. Plaintiff was the sole bidder. The auctioneer accepted the bid and announced the property was “knocked down” to the plaintiff who promptly paid ten per cent ($76) of the cash bid of $760 to the King county treasurer. On August 1, 1958, plaintiff tendered the balance of the bid in the sum of $684, which was refused. On the same day, at a regular meeting of the commissioners of the water district, the bid was rejected by resolution on the ground that it was insufficient in amount. On August 4, 1958, by letter, the King county treasurer tendered the $76 deposit to the plaintiff, which was refused and this action was begun.

After the issues were joined by the filing of defendants’ answer and plaintiff’s reply, plaintiff filed affidavits supporting the allegations in the complaint, which were not controverted. Both parties moved for a summary judgment, there being no genuine issue of material fact. Rule of Pleading, Practice, and Procedure 19, 34A Wn. (2d) 29, as amended, effective November 1, 1955. The motion of the plaintiff was granted and judgment was entered accordingly on the pleadings, compelling the issuance of a deed on the said property to the plaintiff by the defendant water district, and the procuring and furnishing of a title insurance policy as provided in the terms of sale. The defendants appeal.

Appellants’ assignments of error raise one issue. Could the commissioners for the water district exercise the reservation in the notice of sale “ . . . the right to reject any and all bids received,” after the auctioneer had accepted the bid. of the respondent, being the highest and best bid, and announcing that the property was “knocked down” to the respondent?

The cases upon which the respondent relies, McPherson Bros. Co. v. Okanogan County, 45 Wash. 285, 88 Pac. 199 (1907); State ex rel. Friedlander v. Dunning, 132 Wash. 622, 233 Pac. 8 (1925); Farrell v. Neilson, 43 Wn. (2d) 647, 263 P. (2d) 264 (1953), do not reláte to an auction salé where a *459reservation was contained in the notice of sale. We find only-one Washington case, Phillips v. Welts, 40 Wash. 501, 82 Pac. 737 (1905), which is factually similar to the instant case, but that case is of no assistance here because the decision there was based upon an express provision of a statute, not now before us.

The law, however, seems to be well settled, as related to the particular facts of this case, that the reservation may be exercised after sale, both in the texts and decisions of other states. 5 Am. Jur. 454, Auctions, § 15, reads in part as follows:

“It is the right of the owner of property sold at auction to prescribe, within reasonable limits, the manner, conditions, and terms of sale. Usually the auctioneer, at the time and place appointed for the auction, announces these terms and conditions. . . . Terms and conditions so announced generally are deemed to supersede all others and to bind the purchaser even though he did not hear or understand the announcement or was not present at the time of the announcement and such terms were not brought to his actual attention. The conditions of sale may be incorporated in an advertisement of the auction; in such case, a reference thereto at the time and place of sale is a sufficient announcement of the terms and conditions of the sale. ...” (Italics ours.)

In Moore v. Berry, 40 Tenn. App. 1, 288 S. W. (2d) 465 (1955), a notice of sale at public auction contained, among others, the following reservation:

“ ‘. . . We reserve the right to group any two or more lots or tracts any way we see fit to get the owners the most money. All this property is sold subject to the owners confirmation.'' ” (Italics ours.)

In holding that the owners had the right to exercise the above reservation after sale, the court stated:

“It seems to be a settled rule in this state as well as elsewhere that conditions prescribed by the seller or owner and announced at the time and place of the auction are binding on the purchaser whether or not he knew or heard them. Whitfield v. May, 19 Tenn. App. 431, 89 S. W. (2d) 764; American Nat. Bank of Nashville v. West, 31 Tenn. App. 85, 212 S. W. (2d) 683, 4 A. L. R. (2d) 314; Vanleer v. Fain, 25 *460Term. 104; United States v. Blair, 10 Cir., 193 F. (2d) 557; Erie Coal & Coke Corp. v. United States, 266 U. S. 518, 45 S. Ct. 181, 69 L. Ed. 417.”

The-, court further stated:

“The general rule is stated in 5 Am. Jur., as follows:
“ ‘. . . ’ Sec. 15, p. 454.”

See, also, Erie Coal & Coke Corp. v. United States, supra.

In the instant case the condition was prescribed by the seller in the notice of sale. It was announced by the auctioneer when he read the notice of sale just prior to the sale, in the presence of the respondent. This express reservation of the appellants “to reject any and all bids received” became a condition and term of the sale, which was binding upon the respondent purchaser.

The respondent argues there is no statutory authority for tbe insertion of such a condition. We believe the legislature, in giving the water commissioners the authority to sell property at public auction, necessarily gave them the implied authority to fix the terms and conditions of the sale.

The respondent also argues that the reservation must be exercised by the auctioneer prior to the sale; that he was the agent of the owner (seller), and by accepting the bid he exercised the reservation in the owner’s behalf. This contention is untenable in light of the above rule of law. The announcement by the auctioneer of the owner’s reservation “to reject any and all bids received” constituted notice given by the agent of the owner of a right to be exercised by the owner after the sale.

The respondent further argues the rejection was untimely. There being no limitation on the time for rejection of the bid, the owner was entitled to a reasonable time to exercise this right of rejection. We cannot say that the period from June 4 to August 1, 1958 was an unreasonable time since there has been no showing of damage or prejudice to the respondent.

The trial court committed error in compelling the appellants to consummate the sale. The judgment is reversed.

Weaver, C. J., Mallery, Finley, and' Ott, JJ., concur.