Sly v. First Nat. Bank of Scottsboro, 387 So. 2d 198 (Ala. 1980). · Go Syfert
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Sly v. First Nat. Bank of Scottsboro, 387 So. 2d 198 (Ala. 1980). Cases Citing This Book View Copy Cite
16 citation events (3 in the last 25 years) across 11 distinct courts.
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Williams v. Janson
Va. · 2022 · confidence medium
Bank of Scottsboro, 387 So. 2d 198, 200 (Ala. 1980) (statement that property would be sold to “the ‘highest, best and last bidder’ . . . cannot reasonably be construed to mean the defendant was obligated to sell under any circumstance”). “[S]uch statements are usually merely preliminary negotiation, not intended and not reasonably, understood to be intended to affect legal relations.” 1 Timothy Murray, Corbin on Contracts § 4.14 (rev. ed. 2017).6 Furthermore, the Court cannot overlook the fact that Williams’ statement was virtually identical to the language included in the Adver…
cited Cited as authority (rule) Frank Crain Auctioneers, Inc. v. Delchamps
Ala. Civ. App. · 2000 · confidence medium
"There is no breach of contract unless there was previously an offer and acceptance." Sly v. First Nat'l Bank of Scottsboro, 387 So.2d 198, 200 (Ala.1980) (emphasis added).
discussed Cited as authority (rule) Cuba v. Resolution Trust Corp.
N.D. Ga. · 1994 · confidence medium
Bank of Scottsboro, 387 So.2d 198, 200 (Ala.1980) (finding that the parties had not established a contract because the defendant had pre-’ sented the item for sale with reserve — thereby allowing the defendant “to withdraw the goods or to accept or reject any bid”- — and was thus entitled to reject the plaintiffs high bid even after the auction was completed).
discussed Cited "see" Thompson Fine Art, Ltd v. Union League Club of Chicago
Ill. App. Ct. · 2022 · signal: see · confidence high
See Sly v. First National Bank of Scottsboro, 387 So. 2d 198, 200 (Ala. 1980) (holding that a potential buyer unreasonably relied on the seller’s declaration that the property would sell to the “highest, best and last bidder”). ¶ 40 Further lessening any potential reliance Thompson could have had is Tunney’s subsequent email, which spoke in much less concrete language, and contemporaneous statements made by Tunney that were reported in a news article.
cited Cited "see" Roney v. Ray
Ala. · 1983 · signal: see · confidence high
See Sly v. First National Bank of Scottsboro , 387 So.2d 198 (Ala. 1980).
cited Cited "see" William S. Kaye, as Receiver for Barterline, Ltd. v. Pawnee Construction Company, Inc., Birmingham Trust National Bank
11th Cir. · 1982 · signal: see · confidence high
See Sly v. First National Bank, 387 So.2d 198 (Ala. 1980); Nobility Homes, Inc. v. Ballentine, 386 So.2d 727, 730 (Ala. 1980); Marshall v. Crocker, 387 So.2d 176 (Ala.1980).
discussed Cited "see, e.g." Restaurant Supply, LLC v. Giardi Ltd. Partnership
Conn. · 2019 · signal: see also · confidence low
Appx. 124 , 126 (2d Cir. 2018) ; id., at 125 (applying New York's sale by auction statute that contains language identical to § 42a-2-328 ); see also, e.g., Sly v. First National Bank of Scottsboro , 387 So.2d 198 , 200 (Ala. 1980) (applying identical language and concluding that seller's use of phrase " 'highest, best and last bidder' " did not transform auction into auction without reserve).
cited Cited "see, e.g." Specialty Maintenance & Construction, Inc. v. Rosen Systems, Inc.
Tex. App. · 1990 · signal: see also · confidence medium
See Drew v. John Deere Co. of Syracuse, 19 A.D.2d 308 , 241 N.Y.S.2d 267, 270 (1963); see also Sly v. First Nat’l Bank of Scottsboro, 387 So.2d 198, 200 (Ala.1980).
Retrieving the full opinion text from the archive…
Dona Sly and Bobby Jones
v.
First National Bank of Scottsboro.
79-361.
Supreme Court of Alabama.
Aug 29, 1980.
387 So. 2d 198
Myron K. Allenstein, Gadsden, for appellants. Joe M. Dawson of Dawson McGinty, Scottsboro, for appellee.
Torbert.
Cited by 13 opinions  |  Published

The First National Bank of Scottsboro posted public notice of its intention to sell certain repossessed collateral. Sale was to be "at public outcry to the highest, best and last bidder." Dona Sly attended the auction at the advertised time and location and, on behalf of himself and Bobby Jones, successfully bid on several automobiles. Mr. Sly also bid highest on a 1973 Chevrolet Monte Carlo, but the auctioneer, a bank employee, told Mr. Sly the bank might not accept the bid.

After the auction, Mr. Sly offered payment for the Monte Carlo, but was told the sale had to be approved by a bank superior. Dona Sly left the bank, and, when he returned to pick up the vehicles he purchased, the bank refused to sell the Monte Carlo.

Interrogatories answered by the defendant bank indicated the bank withdrew the Monte Carlo from the auction. In contrast, testimony at trial revealed the bank itself bid five dollars higher than Mr. Sly's bid. According to the testimony, the bank bid occurred after Mr. Sly left and the public auction was completed.

Dona Sly and Bobby Jones brought suit against the First National Bank alleging fraud and breach of contract. From a directed verdict for defendant, plaintiffs appeal.

Plaintiffs charge defendant misrepresented the bank's position by stating the bank would not participate in the auction. The *Page 200 complaint alleges: "Dona Sly specifically asked, `Is the bank making bids?', to which defendant [auctioneer] replied, `I don't know.'"

We have ruled consistently that an actionable misrepresentation must be of present fact. See, e.g., ScholzHomes, Inc. v. Hooper, 287 Ala. 628, 254 So.2d 328 (1971),Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (1953), Shepherd v. Kendrick, 236 Ala. 289, 181 So. 782 (1938). We find no evidence plaintiffs attempted to show, let alone proved, the auctioneer knew (or should have known) the bank would bid. Plaintiffs cannot recover under Code 1975, §§6-5-101, -103, or -104, because they failed to prove misrepresentation of an existing material fact.

Likewise, defendant is not liable under Code 1975, § 6-5-102, because no special relationship created on the part of the bank a duty to disclose its intent to bid. Code 1975, § 7-2-328 (4), impliedly gives a foreclosing creditor the right to bid without notice at sale of its collateral. Since no affirmative duty to disclose exists, defendant is not liable under § 6-5-102.

Plaintiffs also complain that defendant misrepresented it would sell to the "highest, best and last bidder." The phrase, however, cannot reasonably be construed to mean the defendant was obligated to sell under any circumstance. If plaintiffs relied on the notice and believed even unacceptable bids would be binding, their reliance was unreasonable.

Code 1975, § 7-2-328 (3) states that all auctions are with reserve unless goods are explicitly put up without reserve. The rule reflects the logic that an auctioneer is not the offeror; instead, it is presumed the bidder is the offeror. A seller is not normally bound by bids unsatisfactory to him — a bidder may not impose a contract on the seller. The seller may reasonably be expected to withdraw the goods or to accept or reject any bid, unless he explicitly undertakes the auction without reserve.

The foregoing also disposes of plaintiffs' claim for breach of contract. Because under § 7-2-328 (3), plaintiffs' bid was the offer, defendant was free to accept or reject plaintiffs' bid. No contract existed until defendant accepted, and at no time did the bank accept Dona Sly's bid. There is no breach of contract unless there was previously an offer and acceptance.

Finally, plaintiffs argue that defendant is estopped to deny a contract with plaintiffs because defendant's conduct of the sale was in bad faith and was prejudicial to the defaulting debtor. Certainly if defendant bank is always required to accept the last bid made, the debtor is prejudiced. Application of Code 1975, § 7-2-328 (3), however, allows the bank to withdraw the goods or place a higher bid where the last bidder's offer was inadequate, and by that procedure the debtor's interest is advanced rather than prejudiced.

Code 1975, § 7-9-504 (3), allows sale of repossessed collateral at public or private sale, and we will not restrict operation of the statute, especially at plaintiffs' instance. When Mr. Sly realized the bank would not accept his bid, he had the opportunity to make a higher offer. An unsuccessful bidder will not be heard to complain, but, instead, if the debtor is prejudiced by the conduct of the sale, he may complain.

AFFIRMED.

MADDOX, JONES, SHORES and BEATTY, JJ., concur. *Page 201