An Auctioneer Can Conduct an Auction in Maine Only if there is a Written contract with the Consignor of the Property to be Sold

The Supreme Judicial Court of Maine in Street v. Bd. of Licensing of Auctioneers, 889 A.2d 319 (Me. 2006), held that the express language of 32 M.R.S.A. § 298 plainly compels, without exception, an auctioneer to provide a written contract between the consignor of the property to be sold and the auctioneer before conducting an auction in Maine. The statute also specifies the details to be included in the contract. An auctioneer who does not comply with the section 298 requirement can be sanctioned.  

In this case, Plaintiff Street (“Plaintiff”), a licensed auctioneer in Maine, and Wood (“Wood”), an auctioneer not licensed in Maine, agreed to hold a joint auction. Id. at 321. Shortly before the auction took place, Plaintiff received information that led her to question Wood's credibility. Id. Based on that information, Plaintiff decided not to offer any of her own goods for sale at the auction, and not to have her own auctioneer "call" the auction. Id.

However, the auction took place as scheduled. Plaintiff’s auctioneer did not call the auction. Id . But Plaintiff was present at the auction and she and her staff recorded, inventoried, and collected the money for every item sold. Id. Following the auction, Plaintiff reviewed the sales records with Wood's wife, deducted from the proceeds the applicable State sales tax, and then paid Wood's wife their portion of the remaining amount. Id. However, Wood never received a written accounting of the auction proceeds. Id. 

In September of 2002, Wood filed a complaint with the Board alleging that the Plaintiff conducted the auction but refused to provide an accounting or a written contract. Id. After hearing, the Board concluded that: the Plaintiff violated 32 M.R.S.A. § 291(1)(B) in failing to provide a written accounting to Wood within a reasonable time; and also concluded that the plaintiff violated 32 M.R.S.A. § 298 in conducting the auction without providing a written contract to Wood. Id. The Board sanctioned the Plaintiff with a letter of warning, imposed a fine of $ 300, and ordered her to pay costs in the amount of $ 959.29. Id. 

Subsequently, Plaintiff moved to the Superior court, which affirmed the Board’s decision.  This appeal followed. Id.

On appeal, the Plaintiff contended that the Board erred in finding that the Plaintiff violated 32 M.R.S.A. § 298 in failing to provide a written contract to Wood. Id at 324. Section 298 of the Maine Revised Statutes mandates a written contract with the consignor of goods prior to auction sale. Id. The section more specifically reads as below:

§ 298.  Contract required

   1. CONTRACT REQUIRED. An auctioneer may not conduct an auction in this State without first having a written contract with the consignor of any property to be sold. The contract must contain the date of the contract and the name and license number of the auctioneer. The contract must contain the terms and conditions of the auction, including but not limited to: 
     A. The description of all items to be sold; 
     B. Whether the auction is with reserve or without reserve; 
     C. The payment schedule; 
     D. The commission rate; and
 
     E. The statement of other charges, including a buyer's premium.

32 M.R.S.A. § 298. Id.

The Plaintiff argued that Wood waived this written contract provision by moving forward with the sale with the knowledge that no such written contract existed. Id.

The Appellate Court stated that the statute mandates a written contract. Id. Further there is nothing in the statute, and the Plaintiff has not cited to any authority to support her contention that a consignor may waive the written contract requirement of section 298, or that if a consignor purports to do so, such waiver can take the place of the auctioneer's professional duty imposed by statute to provide a written contract. Id. The Court found that, in the instant case, the Plaintiff did not provide Wood with a written contract. Id.  Therefore, the Appellate Court affirmed the Board's finding that the plaintiff violated the written contract mandate of section 298. Id.