Lot #2 and Lot #184 are mistakenly the same lot. Lot #2 sells and we have a buyer and seller in contract. Lot #184 comes up and a different buyer [thinks he] buys this lot — but he doesn’t. There is no Lot #184 to sell, as it’s Lot #2 which is already sold.
How do we solve this? Let me offer, there’s no second auction. There’s no seeing which buyer offered the most. There’s certainly no tie bid here. There’s no other answer than the first buyer owns Lot #2 and the second auction did not result in a sale because Lot #184 was already sold.
Even if the terms say that title doesn’t transfer until payment — the first buyer is “in contract” and the second “bidder” is not. Secondly, this aforementioned contract stipulates that title will be forthcoming if not provided for at “Sold!”
Indeed, bid calling (or online “bid calling”) creates contracts with “Sold!” forming a non-contingent contract, as we’ve discussed numerous times including here: https://mikebrandlyauctioneer.wordpress.com/2023/03/28/yes-auction-bid-calling-or-online-creates-contracts/.
Some think this is a tie bid. So both the high bids were the same amount? Even if they were, there are no tied bids in Kansas, Ohio, New York, Indiana, Tennessee, South Carolina, California, Florida … 49 states. The UCC 2-328 says you can reopen the bid with a higher bid that comes in “at the moment” the hammer is falling … and certainly not any discretion to reopen with items 182 lots apart.
Kentucky does more or less define a “tie bid” but offers no resolution, therefore it’s always a terrible idea to reopen the bid when two (or more) bidders think they are the high bidder. One is in, and the other(s) are out. https://mikebrandlyauctioneer.wordpress.com/2023/07/03/ucc-%c2%a7-2-328-kentucky-tie-bids/.
As Steve Proffitt famously said “Once the hammer falls, the sale is “complete.” https://mikebrandlyauctioneer.wordpress.com/2019/12/30/john-stephen-proffitt-iii-and-your-right-to-reopen-the-bid/. Steve also noted often that the auctioneer is not a party to the buyer/seller contract.
Auctioneers are wondering how to fix this “mistake?” Indeed, there was a mistake, but Lot #2 isn’t a mistake, rather Lot #184 is the mistake. How do we fix this? Tell the high bidder on the non-existent Lot #184 that he’s unfortunately out of luck.
Those auctioneer who believe they can do “anything” should know auctioneers actually can’t do anything they want. I’ve been witness to this bad advice several times in courtrooms all over the United States, with less than desirable results. https://mikebrandlyauctioneer.wordpress.com/2021/12/26/auctioneer-has-the-right-to-do-whatever/.
Lastly, could your auctioneer’s terms and conditions address such a situation? Possibly, but likely not as your obligations of good faith, diligence, reasonableness, and care can’t be disclaimed in your terms and conditions: https://mikebrandlyauctioneer.wordpress.com/2021/04/22/good-faith-diligence-reasonableness-and-care/.
Let me say it again … Lot #2 is sold. Lot #184 belongs to the buyer of Lot #2 (since it’s the same item) and there’s nothing to do other than congratulate your Lot #2 buyer regarding his purchase, and wish the high bidder on the non-existent Lot #184 better luck next time.
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, Brandly Real Estate & Auction, and formerly at Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auction Association’s Designation Academy and Western College of Auctioneering. He has served as faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.
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