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Corbin on Contracts

Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

CHAPTER 4 INDEFINITENESS AND MISTAKE IN EXPRESSION

1-4 Corbin on Contracts § 4.14

§ 4.14 Auction Sales-Offers to Sell and to Buy

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The public auction sale has long been an established institution with customs and usages generally well known in the community. These customs and usages vary in different regions. They vary also in relation to the subject matter of the sale. The customs of a regularly established auction mart must be considered in determining the effect of a transaction there.n1 The customs of a horse market may differ from those of auction sales of cotton, tobacco, or household goods. Also, statutory provisions are not infrequently found, as for example in the Uniform Commercial Code.n2 Except when otherwise provided by statute,n3 one who puts up goods at auction can by proper notice determine the legal effect of the auction,n4 and one who makes a bid can do the same. General rules stated in this section, therefore, must be understood as widely prevailing but not necessarily universal.

When an auctioneer presents an article for sale at auction and asks for bids, the auctioneer is ordinarily not making an operative offer and creates no power of acceptance. Such an auction is often called an auction ''with reserve;'' that is, the seller reserves the right not to sell. The auctioneer is asking for offers. The bids made in response thereto are themselves offers that can be revoked by the bidders prior to an acceptance by the auctioneer.n5 This is true even though the seller or the seller's agent has issued advertisements or made other statements that the article will be sold to the highest bidder, or is offered for sale to the highest bidder. Such statements are usuallyn6 merely preliminary negotiation, not intended and not reasonably understood to be intended to affect legal relations. When such is the case, the seller or seller's agent is as free to reject the bids, highest to lowest, as are the bidders to withdraw them.n7 The seller may at any time withdraw the article from sale, if a bid has not already been accepted. The seller need give no reasons; indeed, all bids are rejected by merely failing to accept them-by doing nothing at all. It is not necessary for the seller to say that ''the privilege is reserved to reject any and all bids.''n8 Such a statement is merely evidence that the goods are not being offered ''without reserve.''

Some auctions are ''without reserve'' or ''absolute.'' Before these are discussed some unusual possibilities will be considered. It is quite possible, of course, for the seller to make an operative offer to sell goods, either singly or in gross. If the seller offers to sell an article at a specified price, this is not an auction sale. This is true whether the offer is made to a single person, or to a group of persons then present, or by a published notice to many persons not identified. Any offeree has power to accept such an offer, as long as the offeree has no reason to know that the offer has been withdrawn. The circumstances may be such that the first effective acceptance terminates the power of all other offerees. It is equally possible for a seller to make an operative offer to sell goods without specifying a price, although such offers are not very common. The seller can empower the offeree to fix the price as part of the acceptance. By such an acceptance the sale is consummated, but it is not an auction sale.

An auction sale is one in which the price is determined by the competition of bidders. Even at such a sale as this, it is possible for the seller to make an operative offer to sell and thus cause each bid to be an acceptance of the offer. All that is necessary is that the seller shall express such an intention clearly and bring it sufficiently to the attention of the bidders. One mode of expression has been in such common use as to have received judicial interpretation. If the seller states in advertising of the auction, or states openly at the place of the auction,n9 that the sale will be ''without reserve'', the seller thereby promises to sell the goods to the bidder who makes the highest bid in the competition at that time and place. Before any bid has been made in response to such an offer, the seller has power to revoke and to withdraw the goods from sale,n10 but, after one bid has been made, the seller's offer is held to be irrevocable. The seller is under a legal duty to sell the goods to the bidder at the price bid, conditional only on the absence of any higher bid at that time and place.n11

It might be supposed that the bidder too would be irrevocably bound by bid when bidding in response to an offer to sell ''without reserve'', but it seems that such is not the case. Although the seller's offer has become irrevocable, it has been held that the bidder still has power to revoke the bid as long as it has not been accepted by the fall of the hammer or otherwise.n12

It is obvious that after a bid has been made, at a sale ''without reserve'', there is a contract by which one party (the auctioneer or the principal) is bound and the others (the pool of potential bidders) are not. In spite of frequent statements to the contrary, there is nothing unusual in this. It is merely one instance of a unilateral contract. The making of the bid, empowering the auctioneer to close the deal at once by letting the hammer fall, is a sufficient consideration for the seller's promise that the sale shall be ''without reserve.''

The acceptance of a bid at auction is commonly signified by the fall of the hammer or by the auctioneer's announcement ''Sold.'' All that is necessary is that the auctioneer shall express an intention to accept the bid, in any mode that the bidder has reason to know and understand. After such an acceptance, the sale is consummated.n13 Neither party can withdraw and the auctioneer has no power to accept a higher or different bid.n14 This is not affected by a reservation of the ''right to reject any and all bids,''n15 but it is otherwise if there is an express reservation of the power to ''rescind the sale'' within a stated time after the auction.n16 This is the power to terminate a contract, not to reject an offer.

Subdivision 4 of U.C.C. § 2-328 makes reference to the practice of by-bidding. As stated in one case ''a 'by-bidder' is one employed by the seller or his agent to bid on the property with no purpose to become the purchaser, so that the bidding thereon may be stimulated in others who are bidding in good faith, while he is safe from risk because of a secret understanding that he shall not be bound by his bids... A person fitting the description of a by-bidder has been referred to as a 'puffer,' 'sham bidder,' 'copper,' 'decoy duck,' or a 'white bonnet.' ''n17 Thus, the U.C.C. and the common law permits a buyer to avoid the sale upon discovering the infection created by by-bidding.n18 Alternatively, the buyer can insist on reforming the contract to the price of the last good faith bid. Although the meaning of the phrase ''last good faith bid'' is obscure, it has been held that the buyer can take at the price of the buyer's last bid prior to the first sham bid.n19 If, however, the by-bidder is the highest bidder, there is no actionable fraud if the auction is with reserve; what has taken place is the lawful removal of property from the auction by subterfuge.n20

The rule applied to bids at auction is equally applicable to competitive bids for the construction of buildings made in response to a request for such bids even though the request includes a statement that the contract will be awarded to the lowest bidder. No such bidder can maintain an action for damages against the owner who rejects a bid and accepts a higher one.n21

Legal Topics:

For related research and practice materials, see the following legal topics:

Contracts LawSales of GoodsAuction SalesCommercial Law (UCC)Sales (Article 2)Contract TermsSale by AuctionContracts LawFormationOffersGeneral OverviewContracts LawFormationAcceptanceGeneral Overview

FOOTNOTES:

(n1)Footnote 1. In re Gil-Bern Indus., Inc., 526 F.2d 627 (1st Cir.1975) involved the question of whether a higher bid may be made and entertained at a confirmation hearing following a judicial bankruptcy sale. The case was remanded to determine whether there was a custom concerning such bidding. Cf. In re Muscongus Bay Co., 597 F.2d 11 (1st Cir.1979) which held that under all the circumstances the court below had discretion to accept a higher bid made during a confirmation hearing.

(n2)Footnote 2. The Uniform Commercial Code § 2-328, provides:

''(1) In a sale by auction if goods are put up in lots each lot is the subject of a separate sale.

''(2) A sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner. Where a bid is made while the hammer is falling in acceptance of a prior bid the auctioneer may in his discretion reopen the bidding or declare the goods sold under the bid on which the hammer was falling.

''(3) Such a sale is with reserve unless the goods are in explicit terms put up without reserve. In an auction with reserve the auctioneer may withdraw the goods at any time until he announces completion of the sale. In an auction without reserve, after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time. In either case a bidder may retract his bid until the auctioneer's announcement of completion of the sale, but a bidder's retraction does not revive any previous bid.

''(4) If the auctioneer knowingly receives a bid on the seller's behalf or the seller makes or procures such a bid, and notice has not been given that liberty for such bidding is reserved, the buyer may at his option avoid the sale or take the goods at the price of the last good faith bid prior to completion of the sale. This subsection shall not apply to any bid at a forced sale.''

Although this provision applies to the sale of goods, it has been invoked in land sale auctions. E.g., Hoffman v. Horton, 212 Va. 565, 186 S.E.2d 79 (1972) .

(n3)Footnote 3. A statute making bids irrevocable at certain foreclosure sales is reported in Commercial Federal Sav. & Loan Asso. v. ABA Corp., 230 Neb. 317, 431 N.W.2d 613 (1988) . The court then extended the rule of the statute to all judicial sales, but not retroactively.

(n4)Footnote 4. The seller has power by proper notice to fix a minimum price below which no sale at the auction shall be made. Such a notice limits the power of the auctioneer to bind the seller. McManus v. Fortescue, [1907] 2 K.B. 1 . Such a limitation is generally known as a ''reserve price.''

(n5)Footnote 5. Payne v. Cave, 3 Term R. 148 (1789), is the leading English case on this subject. A ''worm-tub and a pewter worm in the same'' were advertised for sale at auction to the highest bidder. ''At the trial, the plaintiff's counsel opened the case thus:-The goods were put up in one lot at an auction; there were several bidders, of whom the defendant was the last, who bid Ј40; the auctioneer dwelt on the bidding, on which the defendant said 'why do you dwell, you will not get more;' the auctioneer said that he was informed the worm weighed at least 1,300 cwt., and was worth more than Ј40; the defendant then asked him whether he would warrant it to weigh so much, and receiving an answer in the negative, he then declared that he would not take it, and refused to pay for it. It was re-sold on a subsequent day's sale for Ј30 to the defendant, against whom the action was brought for the difference. Lord Kenyon, being of opinion on this statement of the case, that the defendant was at liberty to withdraw his bidding any time before the hammer was knocked down, nonsuited the plaintiff.

The Court thought the nonsuit very proper. The auctioneer is the agent of the vendor, and the assent of both parties is necessary to make the contract binding; that is signified on the part of the seller, by knocking down the hammer, which was not done here till the defendant had retracted. An auction is not unaptly called locus poenitentiae. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to. But according to what is now contended for, one party would be bound by the offer, and the other not, which can never be allowed.''

Compare, however, the provisions of the Uniform Commercial Code, quoted above, with respect to auctions without reserve.

In accord:

Cal. - Hibernia Sav. & Loan Soc. v. Behnke, 121 Cal. 339, 53 P. 812 (1898) .

Ky. - Grotenkemper v. Achtermeyer & Co., 74 Ky. (11 Bush) 222 (1875) .

Mass. - Conway Sav. Bank v. Vinick, 287 Mass. 448, 192 N.E. 81 (1934) .

Minn. - Anderson v. Wisconsin C.R. Co., 107 Minn. 296, 120 N.W. 39 (1909) .

Neb. - Nebraska Loan & Trust Co. v. Hamer, 40 Neb. 281, 58 N.W. 695 (1894) . Cf. Commercial Federal Sav. & Loan Asso. v. ABA Corp., 230 Neb. 317, 431 N.W.2d 613 (1988) .

Pa. - Fisher v. Seltzer, 23 Pa. 308 (1854) , even though seller announced that bids should not be revocable.

(n6)Footnote 6. The exact wording of the announcement must be interpreted in the light of the circumstances. A written invitation to bid stating: ''Contract will definitely be awarded on Friday, May 30, 1986 to the highest responsible bidder,'' was held to be a commitment. The auction became ''without reserve.'' Golfinopoulos v. Padula, 218 N.J.Super. 38, 526 A.2d 1107 (App.Div.1987) .

An invitation for bids stating: ''Minimum selling price is $25,000,'' was held not to be a commitment to sell to the highest bidder over that minimum. The auction was ''with reserve.'' Weidel Sand & Gravel, Inc. v. Middletown, 19 Ohio App.3d 311, 484 N.E.2d 724, 19 Ohio B.R. 483 (1984) .

Merely stating that goods will be sold to the highest bidder is not the same as saying that the sale is without reserve. Drew v. John Deere Co., 19 A.D.2d 308, 241 N.Y.S.2d 267 (1963) .

The term ''absolute auction'' is synonymous with ''without reserve.'' Holston v. Pennington, 225 Va. 551, 304 S.E.2d 287 (1983) . Cf. Pillsbury v. McNabb, 37 D. & C.2d 283 (Pa.Cty.1965) , where the case was remanded for a factual finding as to whether an announcement of an ''absolute'' sale meant an auction without reserve.

Close attention to an invitation for bids to ascertain the meaning of the invitation was given in Forbes v. Wells Beach Casino, Inc., 307 A.2d 210 (Me.1973) , later proceeding 525 A.2d 1034 .

(n7)Footnote 7.

U.S. - Blossom v. Milwaukee & C. Railroad Co., 70 U.S. (3 Wall.) 196, 18 L.Ed. 43 (1866) ; United States ex rel. Goldberg v. Meyer, 37 App.D.C. 282 (1911) , aff'd, 231 U.S. 218 .

Ga. - Tillman v. Dunman, 114 Ga. 406, 40 S.E. 244 (1901) .

Md. - Warehime v. Graf, 83 Md. 98, 34 A. 364 (1896) .

Mass. - Weinstein v. Green, 347 Mass. 580, 199 N.E.2d 310 (1964) ; Hunt v. Rice, 25 Mass.App.Ct. 622, 521 N.E.2d 751 (1988) .

Minn. - Anderson v. Wisconsin C.R. Co., 107 Minn. 296, 120 N.W. 39 (1909) .

N.J. - Kingston Bituminous Products Co. v. New Jersey Turnpike Authority, 80 N.J.Super. 25, 192 A.2d 836 (1963) .

N.Y. - Taylor v. Harnett, 26 Misc. 362, 55 N.Y.S. 988 (1899) .

Ohio -Newman v. Vonderheide, 11 Wkly.L.Bull. 123 (1884).

R.I. - Freeman v. Poole, 37 R.I. 489, 93 A. 786 (1915) , reh'g denied, 94 A. 152 .

Va. - Hoffman v. Horton, 212 Va. 565, 186 S.E.2d 79 (1972) . In a land foreclosure sale the auctioneer announced that he accepted a bid despite the fact that a higher bid was made prior to or simultaneously with the falling of the auctioneer's fist. When apprised of this fact, the auctioneer declared the bidding to be reopened. This was held to be within the discretion of the auctioneer, by analogy to U.C.C. § 2-238(2).

Wash. - McPherson Bros. Co. v. Okanogan County, 45 Wash. 285, 88 P. 199 (1907) , here the plaintiff was the sole bidder.

Canada -Holder v. Jackson, 11 U.C.C.P. 543 (1862).

(n8)Footnote 8. Such a reservation as this creates no power to withdraw after fall of the hammer. New York v. Union News Co., 169 A.D. 278, 154 N.Y.S. 638 (1915) , aff'd, 222 N.Y. 263, 118 N.E. 635 ; but a power of cancellation can be expressly reserved. Erie Coal & Coke Corp. v. United States, 266 U.S. 518, 45 S.Ct. 181, 69 L.Ed. 417 (1925) .

Even though a seller at auction reserves the power of rejecting any or all bids, the power is at an end as soon as a bid has been accepted by the auctioneer. The rights of such a bidder are superior to those of a subsequent purchaser with notice. Collins v. Heitman, 225 Ark. 666, 284 S.W.2d 628 (1955) .

Compare Jenkins Towel Service, Inc. v. Fidelity-Philadelphia Trust Co., 400 Pa. 98, 161 A.2d 334 (1960) , holding that an owner's letter requesting bids was so worded that the recipient was justified in interpreting it as an offer to sell creating a power of acceptance by submitting the highest bid that complied with all stated requirements. This case is noted at length under § 2.2. In Eastern Electric Sales Co. v. Provident Tradesmens Bank & Trust Co., 400 Pa. 429, 162 A.2d 215 (1960) , the alleged offeror was held justified in interpreting the bidder's letter as a conditional acceptance.

(n9)Footnote 9. If the terms of sale are clearly stated at the opening of the auction, it is generally held that this is sufficient notice of those terms to any subsequent bidder, even though he came late or for some other reason did not hear them. See:

Iowa - Kennell v. Boyer, 144 Iowa 303, 122 N.W. 941 (1909) .

Mo. - Coleman v. Duncan, 540 S.W.2d 935 (Mo.App.1976) .

N.Y. - Burling v. Brinn, 116 Misc. 130, 189 N.Y.S. 707 (1921) ; Josephy v. Golden, 113 Misc. 284, 184 N.Y.S. 549 (1920) .

Tenn. - Vanleer v. Fain, 25 Tenn. 104 (1845).

Wis. - Clarke v. Maisch, 171 Wis. 225, 177 N.W. 11 (1920) ; Keske v. Boeder, 168 Wis. 369, 170 N.W. 247 (1919) .

Restatement (Second) of Contracts § 28 comment e.

It is generally held that the auctioneer may make oral modifications and additions to the advertised terms of sale. See Holston v. Pennington, 225 Va. 551, 304 S.E.2d 287 (1983) .

In Well v. Schoeneweis, 101 Ill.App.3d 254, 56 Ill.Dec. 797, 427 N.E.2d 1343 (1981) , an advertised term was: ''Buyer to enter into written real estate contract.'' This term did not mean that there was no contract between the parties until a written memorial had been executed.

In Zuhak v. Rose, 264 Wis. 286, 58 N.W.2d 693, 37 A.L.R.2d 1041 (1953) , where an auction sale was advertised as ''without reserve,'' the owner was held to have no power to withdraw the land from sale after bids were made, and the highest bidder was entitled to specific performance.

If the seller instructs the auctioneer to set reserve prices and the latter fails to do this, a buyer takes good title when the goods are knocked down at a lower price. Carrera v. Sandman, 65 Ohio App.3d 422, 584 N.E.2d 753 (1989) .

(n10)Footnote 10.

Ala. - Kinmon v. J.P. King Auction Co., 290 Ala. 323, 276 So.2d 569 (1973) .

N.Y. - Benjamin v. First Citizens Bank & Trust Co., 248 App.Div. 610, 287 N.Y.S. 947 (1936) . Plaintiff's assignor came from South Africa to attend an auction announced to be without reserve which was canceled on his arrival. He had no cause of action.

Wis. - Milwaukee Stove & Furnace Supply Co. v. Apex Heating & Cooling, Inc., 142 Wis.2d 151, 418 N.W.2d 4 (App.1987) .

(n11)Footnote 11.

Ill. - Forbes v. Hunter, 223 Ill.App. 400 (1921) .

Wyo. -In Pitchfork Ranch Co. v. The Bar TL, 615 P.2d 541 (Wyo.1980) , there was an advertised ''no-reserves'' auction of a ranch. At the auction, the auctioneer announced a policy of not recognizing bids that were not at least $25,000 more than the prior bid. This policy had not been authorized by the seller. The property was knocked down to a bidder for $1,600,000 who seeks specific performance. A bid for $1,610,000 by a non-party to the action was not recognized. It was held that there was no sale, the auctioneer did not comply with the rule that the property be sold to the highest bidder.

Eng. - Johnston v. Boyes, [1899] 2 Ch. 75 ; Warlow v. Harrison, 1 El. & El. 316 (1856) .

(n12)Footnote 12. Restatement (Second) of Contracts § 26: ''Auctions''

(1) At an auction, unless a contrary intention is manifested,

(a) the auctioneer invites offers from successive bidders which he may accept or reject;

(b) when goods are put up without reserve, the auctioneer makes an offer to sell at any price bid by the highest bidder, and after the auctioneer calls for bids the goods cannot be withdrawn unless no bid is made within a reasonable time;

(c) whether or not the auction is without reserve, a bidder may withdraw his bid until the auctioneer's announcement of completion of the sale, but a bidder's retraction does not revive any previous bid.

(2) Unless a contrary intention is manifested, bids at an auction embody terms made known by advertisement, posting or other publication of which bidders are or should be aware, as modified by any announcement made by the auctioneer when the goods are put up.

(n13)Footnote 13. The making of the memorandum that may satisfy the statute of frauds is discussed in John D. Calamari & Joseph M. Perillo, The Law of Contracts § 19-32 (3d ed. 1987). See also Holston v. Pennington, 225 Va. 551, 304 S.E.2d 287 (1983) .

(n14)Footnote 14.

Fla. - Coker v. Dawkins, 20 Fla. 141 (1883) .

Ill. - Russell v. Sammons, 217 Ill.App. 607 (1920) .

Minn. - Johnson v. City of Jordan, 352 N.W.2d 500 (Minn.App.1984) .

Wyo. - State ex rel. Fitch v. State Board School Land Com'rs, 27 Wyo. 54, 191 P. 1073, 11 A.L.R. 539 (1920) , here the highest bid was submitted in writing.

In Head v. Clark, 88 Ky. 362, 11 S.W. 203 (1889) , it was held that where two bidders simultaneously bid the same amount and the auctioneer accepted one of them without hearing the other, the auctioneer could correct the mistake and accept a still higher bid by the second bidder. This has been codified in the Uniform Commercial Code.

Acceptance of a bid consummates a contract, even though the terms have not yet been reduced to writing. State ex rel. Robins v. Clinger, 72 Idaho 222, 238 P.2d 1145 (1951) .

(n15)Footnote 15. Coleman v. Duncan, 540 S.W.2d 935 (Mo.App.1976) . Auction notice indicated that some items had a reserve price, but did not indicate which items. A tractor was knocked down to plaintiff with the declaration, ''sold.'' Owner could not refuse to sell on the grounds that the reserve price had not been met. The implicit premise in the court's decision is that the auctioneer has apparent authority to sell. This is undoubtedly a correct inference in the overwhelming number of auctions.

Trans World Airlines, Inc. v. Skyline Air Parts, Inc., 193 A.2d 72 (D.C.App.1963) .

Where the auctioneer is not empowered to contract, the owner may reject the high bid even after the bidding is concluded by the auctioneer. Eugene Stud & Veneer, Inc. v. State Bd. of Forestry, 3 Or.App. 20, 469 P.2d 635 (1970) .

(n16)Footnote 16.

U.S. - Erie Coal & Coke Corp. v. United States, 266 U.S. 518, 45 S.Ct. 181, 69 L.Ed. 417 (1925) .

(n17)Footnote 17. Nicholson v. Clark, 802 S.W.2d 934 (Ky.App.1990) , rehearing denied, review denied, quoting other sources.

The history of this practice is colorfully traced in McMillan v. Harris, 110 Ga. 72, 35 S.E. 334 (1900) .

(n18)Footnote 18. As in other cases of fraud, the buyer must act to avoid the sale within a reasonable time after ascertaining the facts. Berg v. Hogan, 322 N.W.2d 448 (N.D.1982) .

(n19)Footnote 19. Nevada National Leasing Co. v. Hereford, 36 Cal.3d 146, 203 Cal.Rptr. 118, 680 P.2d 1077, 44 A.L.R.4th 101 (1984) . The plaintiff was also held to be entitled to punitive damages.

(n20)Footnote 20. Drew v. John Deere Co., 19 A.D.2d 308, 241 N.Y.S.2d 267 (1963) ; Freeman v. Poole, 37 R.I. 489, 93 A. 786 (1915) , reh'g denied, 94 A. 152 .

Nicholson v. Clark, supra. In this curious case the owner unsuccessfully sought specific performance against the by-bidder who had been asked by the owner's real estate broker to put in a bid on behalf of the owner at the reserve price. No one else bid.

Feaster Trucking Service, Inc. v. Parks--Davis Auctioneers, Inc., 211 Kan. 78, 505 P.2d 612 (1973) . The auctioneer's contract made it responsible for the collection of checks received for the auctioned goods. Feaster, the seller, persuaded Hobbs to bid on a truck to bring the price up. After Hobbs' bid was accepted, it was agreed among Feaster, Hobbs, and Neff that the sale would be made to Neff. The truck broke down and Neff stopped payment on his check. Feaster brought action against the auctioneer on its guaranty of the collection of checks. It was held that the auctioneer was not liable. The sale to Neff was not by auction. It was sold by private treaty and the check did not come within the scope of the auctioneer's guaranty.

See also § 2.3 above.

It is a matter of course that the seller is privileged not to put goods up for sale, even though they have been advertised as included in the sale. There is no liability to those who attend in reliance on the advertising. Scales v. Chambers, 113 Ga. 920, 39 S.E. 396 (1901) ; Harris v. Nickerson, L.R. 8 Q.B. 286 (1873) .

See L.C.B. Gower, 68 Law Q.Rev. 457 (1952). He thinks that the seller is bound by his promise by reason of the action of each bidder in attending the auction in reliance on the promise. This is in harmony with Restatement (Second) of Contracts § 90. This article by Gower is criticized by C.J. Slade, in a note 69 L.Q.Rev. 21 (1953).

(n21)Footnote 21. Joseph Rugo, Inc. v. Henson, 190 F.Supp. 281 (D.Conn.1960) . It is a common practice, although not necessary, for the advertiser to ''reserve the right to reject any and all bids.'' Gannett Outdoor Co., Inc. v. Atlantic City, 249 N.J.Super. 217, 592 A.2d 276 (1991) .