J. G. White & Co., Limited (Auctioneers) of London, England was contracted to sell property held by the United States in a depot in Slough, England — in particular to our analysis, some Garlock packing.
The auctioneer’s catalog (advertising) noted a total of 278,432 pounds of Garlock packing selling “as-is” and “where-is.” Mr. Mottram was interested in bidding on this lot but was unable to attend the auction nor inspect prior.
Mr. Mottram contacted the auctioneer to inquire if he could inspect the packing prior to the auction — and was told he could not. Nevertheless, he told the auctioneer he wished to place an absentee bid of $900,000 on the 278,432 pounds of Garlock packing.
The auction took place on June 24, 1919, and Mr. Mottram was deemed the high bidder. Soon thereafter Mr. Mottram arrived at the depo to secure and remove is 278,432 pounds of Garlock packing.
However, there is in fact not 278,432 pounds of Garlock packing there, and rather only 2,784 pounds of Garlock packing. Mr. Mottram inquires if he still has to take 1/100 of the Garlock packing advertised for his bid of $900,000 and is told he does as the property was sold “as-is” and “where-is.”
Of course, this didn’t happen. Yes, the catalog did note 278,432 pounds of Garlock packing but Mr. Mottram did preview the lot and was able to ascertain there were only $2,784 pounds of Garlock packing — and he only bid $9,000 and not $900,000.
Today, we’re simply asking “what if” our aforementioned story was true? Would the Supreme Court of the United States (or any court) have ruled that despite no opportunity to preview, Mr. Mottram could not rescind the deal where he was told there were 278,432 pounds of Garlock packing and there wasn’t?
Contemporary law suggests to me that expressed warranties constitute a guarantee that cannot be waived by an “as-is” disclaimer. However, since Mr. Mottram did preview and have knowledge of the catalog error and the Court noted the expressed amount was in error (therefore not expressed,) he could be held to an “as-is” and “where-is” standard?
I talked to a trial attorney friend (who I won’t be identifying here for obvious reasons) who thought any case of selling “as-is” and “where-is” without any preview opportunity was presenting him an excellent case of buyer recission given the slightest misrepresentation regardless of any disclaimers.
As we parted, he remarked, “You’re going to sell me something as-it-is, but not let me check to verify what-it-is and then hold me to the contract regardless? When you have a case like that, have that buyer contact me.” Here’s hoping no auction buyer needs this attorney.
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.