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AGO 1958 No. 212 - July 30, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington




The director of game or his representative may withhold from auction beaver pelts or may withdraw beaver pelts from sale before the hammer of the auctioneer falls.  The director or his representative may not sell beaver pelts at a private sale.

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                                                                    July 30, 1958

Honorable John Biggs, Director
Department of Game
Olympia, Washington                                                                                               Cite as:  AGO 57-58 No. 212

Dear Sir:

            By letter previously acknowledged you have asked the advice of this office on three questions, as follows:

            (1) May beaver pelts be withdrawn from sale during the course of an auction by the Director or his representatives?

            (2) May the Director of Game or his representatives withhold from sale at auction, beaver pelts that are on hand?

            (3) May the Director or his representatives offer to sell, or sell, beaver pelts to licensed fur buyers in a private sale?

            We answer question (1) in the affirmative, as modified in the analysis.  We answer question (2) in the affirmative.  We answer question (3) in the negative.


            1. The sale of beaver pelts by the director or his representative is specifically provided for in section 77.20.030, chapter 36, Laws of 1955:

             [[Orig. Op. Page 2]]

            "All beaver skins obtained by the director or his representatives under any cooperative agreement made with any landowner, under this title,shall be sold to licensed fur buyers only at auction to the highest bidder.  The time of any sale shall be within the discretion of the director. . . ."  (Emphasis supplied)

            Regarding your first question, we should observe at the first instance that the announcement of an auction sale does not constitute an offer to sell, but rather is an invitation for others to offer to buy.  An auction sale is generally described in 5 Am.Jur., Auctions, § 17, as follows:

            "A sale at auction, like every other sale, must have the assent, express or implied, of both seller and buyer.  An announcement of an auction or the act of putting property up for sale thereat does not constitute an offer to sell capable of acceptance by the making of a bid.  It is rather a mere invitation to those attending the sale to make offers by bids.  The contract becomes complete only when the bid is accepted, this being ordinarily denoted by the fall of the hammer.  The bidder may withdraw his bid at any time before its acceptance.  His right to do so can not be curtailed by rules or conditions, prescribed by the auctioneer, forbidding the retraction of a bid once it is made.  On the other hand, the auctioneer, unless he has announced that the sale shall be 'without reserve,' may withdraw the goods from sale at any time before the fall of the hammer, in which case even the highest bidder has no claim to the property.  If the sale is expressly announced to be 'without reserve,' however, the owner may be held liable for a withdrawal of the property from the sale after a bid.  In that case after a bid has been made the auctioneer cannot withdraw.  These common-law principles are adopted by the Uniform Sales Act."  (Emphasis supplied)

            See, also, 1 Corbin on Contracts 337 § 108; Restatement, Contracts, § 27.

            InMcPherson Bros. Co. v. Okanogan County, 45 Wash. 285, 88 Pac. 199 (1907), our court quoted with approval the foregoing common-law rule that goods may be withdrawn any time before the fall of the hammer or some similar indication of acceptance of a bid.  The Uniform Sales Act, referred to above, adopting this common-law principle was enacted by the Washington legislature as chapter 142, Laws of 1925.  Section 21 (2) (RCW 63.04.220) of that act provides:

            "(2) A sale by auctioneer is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary  [[Orig. Op. Page 3]] manner.  Until such announcement is made, any bidder may retract his bid, and the auctioneer may withdraw the goods from sale unless the auction has been announced to be without reserve."

            It is unnecessary to decide whether the instant sale is governed by the sales act as common-law for the result is the same.

            It is our opinion therefore, that the pelts in question may be withdrawn from sale at any time before the auctioneer indicates acceptance of a bid.

            2. Section 77.20.030, quoted above, provides, in part, that

            ". . . The time ofany sale shall be within the discretion of the director. . . ."  (Emphasis supplied.)

            Discretion is the freedom to act in a manner which is just and reasonable, according to one's judgment.  State v. Foren, 78 Kan. 654, 97 Pac. 791 (1908); Gunson v. Williams, 242 Iowa 916, 48 N.W. (2d) 809 (1951);Caras v. Delaware Liquor Commission, Del. Super., 90 A. (2d) 492 (1952).

            We deem this grant of power sufficiently broad so as to permit the director to exercise his judgment as to the time of sale for any or all pelts.  Thus, the director may select certain pelts for sale and withhold others if his action in so doing is reasonable and not arbitrary or capricious.

            3. Section 77.20.030 [[RCW 77.20.030]], above, expressly provides that the beaver skins shall be soldonly at auction.  By definition, an auction is a public sale.  7 C.J.S. 1239 § 1.

            We conclude, therefore, that the pelts in question may not be sold at a private sale.

Very truly yours,

Attorney General

Assistant Attorney General

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