#### UNITED STATES EX REL. GOLDBERG *v.*VON L. MEYER.*

Auction Sales; Sales oe Government Property; Contracts.

*?1.*An auction sale, whether made by private owner or by an officer in execution of a decree, is not complete until a bid has been accepted, and the property struck off and declared sold to the bidder. The seller may decline to accept the bid, and may withdraw the property from sale; and until acceptance of his bid, the bidder acquires no title to the property.

-2. Property in a condemned United States vessel offered for sale by the Secretary of the Navy, under see. 5, act of Congress of March 3, 1883 (22 Stat. at L. 599, chap. 141 U. S. Comp. Stat. 1901, p. 1059), pro*283viding *for*sales of such vessels by means of advertisements for proposáis to purchase, does not pass to the highest bidder under acceptance of his bid by the Secretary; and the Secretary has the power to withdraw a vessel from sale after the opening of the bids therefor, although all the terms and conditions of sale have been complied with by the bidder up to the time of the withdrawal.

No. 2284.

Submitted May 1, 1911.

Decided May 24, 1911.

Hearing on an appeal by the relator from a judgment of -the Supreme Court of the District of Columbia dismissing a petition for the writ of mandamus to compel the Secretary of the Navy to accept payment for and deliver possession of a -condemned United States vessel for which the relator was the highest bidder.

*Affirmed.*

The Court in the opinion stated the facts as follows:

This is an appeal from a judgment dismissing a petition for *i&*writ of mandamus.

The following facts are alleged in the petition. The United States cruiser, Boston, after survey, condemnation, and apprais.al, was stricken from the Naval Register in compliance with .an act of Congress approved August 5th, 1882 (22 Stat. at L. 296, chap. 391, U. S. Comp. Stat. 1901, p. 1058). Said •cruiser was then advertised for sale under the provisions of the act approved March 3d, 1883 (22 Stat. at L. 599, chap. 141, U. S. Comp. Stat. 1901, p. 1059). The public advertisement for proposals to purchase said cruiser announced that .sealed proposals would be received at the Navy Department until 12 o’clock noon, December 7, I9l0, when they would be •publicly opened, for the purchase of the Boston, appraised value $13,000; forms of proposal and bond, and information concerning the vessel, terms and conditions of sale, to be obtained on application to the Department; vessel may be examined at the Navy Yard, Puget Sound, Washington. Relator, A. Goldberg, seeing the advertisement, applied for and received from -the Department the necessary information aforesaid. A print*284ed statement was famished him on his said application. This,, omitting some matters relating to the other ship advertised at. the same time, and some unimportant details, reads as follows

In accordance with the provisions of sec. 5 of the act of Congress approved March 3, 1883, sealed proposals will be-received at the Navy Department until 12 o’clock noon, December 7, 1910, when they will be publicly opened, for the-purchase of the United States vessels Boston and Concord, now lying at the Navy Yard, Puget Sound, Washington, these-vessels having been stricken from the Navy Register after survey, condemnation, and appraisal, under authority of the act. of August 5, 1882.

As appraised by the board of survey and appraisal, the value-of the Boston as she lies, with certain articles of equipage and. outfit suitable for further use by the government removed, but with her boilers, main engines, dynamo engines, miscellaneous-auxiliary machinery, spars, masts, standing rigging, boat davits, stanchions, deck winches, steering gear, main ventilating; fans, and one anchor, and a sufficient amount of chain for mooring purposes, left on board, is $13,000. * * *

These vessels will be sold for cash to the bidders offering, the highest prices above the appraisal values.

Separate proposals for each vessel must be submitted in a-sealed envelop addressed to the Secretary of the Navy, Washington, District of Columbia, and indorsed “Proposal for the-purchase of the United States S -” (insert the name of' vessel for which offer is made), so as to distinguish it from other communications, and prevent the opening thereof before-the time fixed by the Department’s advertisement of October 22d, 1910.

Each proposal must be accompanied by a deposit in cash (or satisfactory certified check) of not less than 10 per cent of the amount of the offer or proposal, and also a .bond in a penal sum equal to the whole amount of the offer, with two or more individual sureties, or with a corporate surety authorized to do business under the act of August 13, 1894, as amended by *285
      *the*act of March *23,*1910, to be approved by the Secretary of the Navy, conditioned for payment of the remaining 90 per •cent of the amount of such offer or proposal within thirty days from the date of its acceptance. In case default is made in the payment, of the remaining 90 per cent or any part thereof within that time, said cash deposit (or check) of 10 per cent shall be considered as forfeited to the government, and shall be .applied as directed in the act of March 3d, 1883.

Where a cash deposit or certified check covering the amount •offered accompanies the proposal, no bond need be furnished. Tie bids will be decided by the Secretary of the Navy by lots. All deposits by bidders whose proposals shall not be accepted will be returned to them within seven days after the opening •of the proposals.

The vessels may be examined upon applying to the commandant of the Navy Yard, Puget Sound, Washington. They must be removed from the limits of the yard by the purchasers at their own expense, within such reasonable time as may be fixed by the department.

The Department will not be responsible for errors or inaccuracies in the foregoing descriptions, as the vessels can be examined by parties interested, or for articles on board after the ■sale.

*R. F. Nicholson.*

Acting Secreary of the Navy. Navy Department, Washington, D. 0., October 22d, 1910.

Having received the aforesaid statement of the time and the conditions of sale, the relator submitted a bid of $20,000, accompanied by a certified check for the full amount thereof. When the bids were opened in due course, it appeared that relator’s bid was the highest offer made for said vessel. The papers on file show that relator had complied with all the terms and conditions of said sale. The respondent notified relator that he would not deliver the vessel for the reason that it had been determined to lend the same to the State of Oregon for use by the Naval Militia of said State. Early in Janu*286ary, 1911, respondent notified relator that lie would not deliver the vessel and was returning his said check. Relator replied, at once that he would not accept the return of said check, and demanded the delivery of the vessel. The respondent did return the cheek to relator, who holds it subject to the order and disposition of the former, and is ready and willing to produce and surrender the same. Claiming that he is the purchaser and true owner of the vessel, and entitled to its possession, he prays for a writ of mandamus to issue, commanding the respondent to receive the check and deliver the possession of the vessel. The return of the Secretary to the rule to show cause-why the writ should not issue admits the foregoing facts. The grounds of defense are: (1) That the matter of accepting or-re jecting offers to purchase said vessel rests in the discretion ■of the Secretary, who rejected relator’s offer. (2) That the-vessel is the property of the United States, not subject to any claim of relator. (3) That relator has a full and complete remedy in the court of claims.

Relator demurred to the return. The demurrer was overruled, the rule to show cause discharged, and the petition dismissed.

*Mr. Charles Poe*for the appellant.

*Mr. Clarence R. Wilson,*United States District Attorney,, and *Mr. R. 8. Huidekoper,*Assistant, for the appellee.

*Auction*Sales.—On the question of the right to. withdraw property -from an auction sale after it has been offered, see notes to *Tillman*v. *Gunman,*57 L.R.A. 784, and *Anderson*v. *Wisconsin Cent. R. Co.*20 L.R.A. (N.S.) 1133.

Mr. Chief Justice Shepard

delivered the opinion of the-Court:

The case turns upon the construction to be given to sec. *&*of the act of March 3d, 1883 (22 Stat. at L. 599, U. S. Comp. Stat. 1901, p. 1059), which reads as follows: “It shall be the duty of the Secretary of the Navy to cause to be appraised in such a manner as may seem best all vessels of the Navy which have been stricken from the Navy Register under the provisions of the act making appropriations for the naval service; *287for the fiscal year ending June thirtieth, eighteen hundred and eighty-three, and for other purposes, approved August fifth, eighteen hundred and eighty-two. And if the said Secretary shall deem it for the best interest of the United States to sell any such vessel or vessels, he shall, after such appraisal, advertise for sealed proposals for the purchase of the same, for a period not less than three months, in such newspapers as other naval advertisements are published, setting forth the name and location and the appraised value of such vessel, and that the same will be sold, for cash, to the person or persons or corporation or corporations offering the highest price therefor above the appraised valne thereof, and such proposals shall be opened on a day and hour and at a place named in said advertisement, and record thereof shall be made. The Secretary of the Navy shall require to accompany each bid or proposal a deposit in cash of not less than ten per centum of the amount of the offer or proposal, and also a bond with two or more sureties to be-approved by him, conditioned for the payment of the remaining ninety per centum of the amount of such offer or proposal within the time fixed in the advertisement. And in case default is made in the payment of the remaining ninety per cent-um, or any part thereof, the Secretary within the prescribed time thereof shall advertise and resell said vessel under the provisions of this act. And in that event said cash deposit of ten per centum shall be considered as forfeited to the government, and shall be applied, first, to the payment of all costs and expenditures attending the advertisement and resale of said vessel; second, to the payment of the difference, if any, between the first and last sale of said vessel, and the balance, if any, shall be covered into the Treasury: Provided, however, that nothing herein contained shall be construed to prevent a suit upon said bond for breach of any of its conditions. Any vessel sold under the foregoing provisions shall be delivered to the purchaser upon the full payment to the Secretary of the Navy of the amount of such proposal or offer; and the net proceeds of such sale shall be covered into the Treasury. But no vessel of the Navy shall hereafter be sold in any other man*288ner than, herein provided, or for less than such appraised value, ■unless the President of the United States shall otherwise’ direct in writing.” *- * *

The Relator contends that the only discretion committed to ■the respondent by the statute was completely exercised when ■he decided to offer the condemned vessel for sale, and advertised it therefor; and that upon relator’s compliance with the conditions of sale, namely, making the highest bid for the vessel above the appraised value, and accompanying the same with 'the purchase money, the right to the possession of the vessel ■became vested immediately in him, and it became the plain •duty of the respondent to deliver the same. We are unable to concur in this contention. It is reasonably practicable for Congress to. provide on broad lines only for the control and disposition of vessels belonging to the United States, and wide •discretion in respect of the many details thereof has necessarily been committed to the discretion of the executive department. ‘The statute under consideration does not, in terms, declare that a vessel when offered for sale shall not be withdrawn, but shall be declared sold to the highest bidder, regardless of conditions that may arise after advertisement rendering it important to reconsider the decision to sell, and to retain the vessel for the •uses of the government; nor can we interpret it so to mean. All that .it commands is that the vessel shall be offered for sale in a particular manner, and that “any vessel sold,” shall be -delivered to the purchaser. Congress might have directed the ■sale to be made at public auction to the highest bidder, instead •of through written bids to be opened upon the advertised date. Had this been done, it could not be successfully contended that the sale at such auction would be complete until the acceptance -of the highest bid. It is settled law that an auction sale, whether made by a private owner or by an officer under execution ■of a decree, is not complete until the bid shall have been accepted, and the property struck off and declared sold to the bidder. The seller may decline to accept the bid, and may withdraw the property from sale. Until acceptance of his bid, ■the bidder acquires no title to the property. *Blossom*v. *Mil*
      *289
      *waukee & C. R. Co.*3 Wall. 196-206, 18 L. ed. 43-46. We perceive no difference between a sale made at public outcry, and one made in the manner prescribed by statute. In each case it is an offer for sale to the highest bidder, and no sale is made until the bid is accepted. Here, notwithstanding the relator’s bid was the highest, and its acceptance might have been advisable, the representative of the government charged with the conduct of the sale decided not to accept it, and therefore no sale was actually made. In view of this conclusion, other questions that have been argued need not be considered.

There was no error in dismissing the petition, and the judgment will be affirmed, with costs. *Affirmed.*

A writ of error to the Supreme Court of the United States was allowed on application of the appellant.