60 N.Y.S. 750 | N.Y. App. Div. | 1899
The action was brought to recover $1,240, alleged to be damages sustained by the plaintiff by defendant’s breach of contract for'the purchase of a sloop yacht. The complaint states that on July 28* 1897, the defendant agreed to purchase his sloop yacht Iola for the sum of $2,350, first payment to be made in July and the rest subsequently ; that on August 2, 1897, the defendant sent notice that he would not carry out the contract.; that the plaintiff notified the defendant on August sixth that. the yacht would be sold, and h@ would be held for any deficiency, and that on October sixth the boat was sold at a public auction to the highest bidder, bringing $1,100. The answer denies that the yacht was sold at auction for the benefit of the defendant, and alleges that it was sold on the plaintiff’s own account.
The plaintiff testified that after futile attempts to sell at private sale he notified the defendant that the yacht would be sold at auction on October 6, 1897. Accordingly the boat was sold for $1,100.' It was admitted that this last bid was made by a Mr. Tower as agent for the plaintiff, and that a previous bid was made by an outside party.
The plaintiff claims that the measure of damages is the difference between the contract price and the auction price, and to recover this specific amount this action. is brought. The plaintiff, upon the breach being conceded, is entitled to damages, and he may resort to either one of the three remedies mentioned in Moore v. Potter (infra) to obtain.them. Here, however, without other proof of till® value of the.boat or the damages suffered, the plaintiff insists that h® is entitled to the difference between the contract price and the prie§ bid at auction, though admittedly he bid himself, and never, as th® yesult of the auction, accomplished more, so far as title and possession of the boat áre concerned, than to go through the form of a sale,
This view we think is right, for, as correctly contended by respondent, the executory contract vested no title in the defendant as vendee, the plaintiff not intending to part with title till the last payment on account; that, as the title was in the plaintiff, there was no title passed by the auction sale, and that what then happened was not a sale but the prevention of a sale; and that, if it be urged that the plaintiff held as trustee, then he was barred from purchasing at his own sale. The appellant relies on a dictum in Moore v. Potter (155 N. Y. 481, 490) where, in speaking of damages, it was said, (< one of the methods of ascertaining their amount was a resale of the property.”
The question, however, we are discussing was not directly passed Upon, viz., whether, upon such a sale, where the property is bid in by the vendor himself, the measure of damages is the difference between such bid and the contract price. That case (Moore v. Potter) id authority for the proposition that, in selling, the vendor is not the agent of the vendee. “ To say, then, that the vendor becomes the agent.of the vendee in making the sale is not quite correct, and is to be regarded at most as a mere fiction of law, and the beneficial title does not pass to the vendee.”
It is a strain on reason, then, to conclude that a man can sell to himself and thus establish a basis of value by which to measure
We think the judgment should be affirmed, with costs.
Van.Brunt, P. J., Rumsey and Patterson, JJ., concurred.
Judgment affirmed, with costs.