I concur in the result, but upon other grounds than those assigned.
I do not think that the conditional sales contract in issue is subject to the provisions of the uniform sales law. It was a "transaction in the form of a contract to sell or a sale which is intended to operate by way of . . . . charge or other security," specifically exempt from the acts under C. S., see. 5747. (Mark Means Transfer Co. v. Mackinzie, 9 Idaho 165,73 Pac. 135.) *Page 146
I think, however, that the principles of C. S., sec. 5693, sought to be applied were applicable under the common law and the rules of law applicable without or before or after the adoption of the uniform sales law. Puffing and bybidding have been condemned without such a statute. (2 R. C. L., p. 1129, see. 15; 6 C. J., p. 833, sec. 34.) Further, there was no sale because there was neither agreement that the vendor could buy, nor notice that he would bid if, by giving notice, he could be a buyer. The appellant could not be both seller and buyer. (Freeman v. Poole, 37 R. L. 489, Ann. Cas. 1918A, 841,93 Atl. 786, L.R.A. 1917A, 63; Warlow v. Harrison, 1 El. El. 295, 120 Eng. Reprint, 920; s. c., 1 El. El. 309, 120 Eng. Reprint, 925; Bexwell v. Christie, 1 Cowp. 396, 98 Eng. Reprint, 1150.).