The jury is bound by a measure of damages *240where there is one, but not always by a particular means for its ascertainment. Now the measure, in a case like the present, is the difference between the price contracted to have been paid and the value of the thing when it ought to have been accepted-, and though a resale is a convenient, and often a satisfactory means, it does not follow that it is, nor was it said, in Girard v. Taggert, to be the only one; on the1 contrary, the propriety of the direction there, that the jury were not bound by it if they could find another more in accordance with the justice of the case, seems to have been admitted—the very thing complained of here. Now, whatever be the 'fairness of a public sale as a test of value, it is obvious that a private one for account of a prior vendee is less so, inasmuch as the vendor has no motive to press for the highest price. Still, however, if the direction were wrong, the plaintiff, instead of being injured, was benefitted by it; for if the price of the sale had been taken for the value, the plaintiff would have recovered much more. It is said that, if the defendant’s rule had been laid down, the jury might have given nothing; but there is at least a legal presumption that they would have done their duty by obeying the direction, and as we sit here only to redress actual injury, the plaintiff, on his own showing, has no ground o,f complaint.
