167 N.Y. 405 | NY | 1901
Lead Opinion
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When the vendee of personal property, under an executory contract of sale, refuses to complete his purchase, the vendor may keep the article for him and sue for the entire purchase price; or he may keep the property as his own and sue for the difference between the market value and the contract price; or he may sell the property for the highest sum he can get, and after crediting the net amount received, sue for the balance of the purchase money. (Moore v. Potter,
While the courts below recognized this rule they did not apply it, for they held that the sale at auction was no sale at all, because a man cannot sell to himself. This would be true of an attempt to make a private sale to one's self, but it is not true of a sale at public auction, fairly conducted by a licensed auctioneer, and made at a reasonable time and place, after adequate opportunity to see the property, due advertisement to the public and personal notice to the vendee, when the real purpose is to ascertain the value of the property. The law is satisfied with a fair sale, made in good faith, according to established business methods, with no attempt to take advantage of the vendee. Such, as the jury might have found, was the sale under consideration. The primary object of the sale was not to pass title from the vendor, but to lessen the loss of the vendee. The subject of the sale had no market value, and the amount for which it could be sold depended largely upon taste and fancy. A public competitive sale by outcry to the highest bidder, duly advertised and made upon *409
notice to the vendee, is a safer method of measuring the damages than a sale by private negotiation, which has been held sufficient. (Van Brocklen v. Smeallie,
We forbear further discussion, because the question is no longer open in this court, as it was involved in a case recently decided by us upon careful consideration after full discussion by counsel. (Moore v. Potter,
Dissenting Opinion
The rule of damages for a breach by the buyer of a contract for the sale of personal property is well settled. The seller may store the property for the buyer and sue for the purchase price; or may sell the property as agent for the vendee and recover any deficiency resulting; or may keep the property as his own and recover the difference between the contract price and the market value at the time and place of delivery. If he sells as agent he may sell either at public or private sale, but it must be a sale made in good faith and in such manner as to produce most nearly the full value of the property. Selling as agent he cannot sell to himself. Selling involves contracting and a person cannot contract with himself and bind others thereby. If he could sell to himself publicly he could privately, and thus be able to perpetrate a fraud or an injustice which might be difficult to detect or prove. (Van Brocklen v. Smeallie,
I fully concur in all that was said in the opinion in the case of Moore v. Potter (
In this case the sale was made by the seller to himself. It was made through the agency of an auctioneer it is true, but the auctioneer was his agent and represented him in the transaction.
I think the judgment should be affirmed.
PARKER, Ch. J., BARTLETT and MARTIN, JJ., concur with VANN, J.; GRAY and WERNER, JJ., concur with HAIGHT, J.
Judgment reversed, etc.