138 Ga. 399 | Ga. | 1912
An administrator sold property, the terms being cash. The successful bidder failed to comply with his bid. The
The words indicating full settlement were stricken from the check before its indorsement. There was no written contract of settlement excluding parol evidence, within what is commonly known as the parol-evidence rule, so as to bring the case within the ruling in Southern Bell Telephone & Telegraph Co. v. Smith, 129 Ga. 558 (59 S. E. 215), and Pennsylvania Casualty Company v. Thompson, 130 Ga. 766 (61 S. E. 829). See also Copeland v. Montgomery, 8 Ga. App. 633 (70 S. E. 30). Whether the cheek was in fact delivered and received as a partial,payment or as full payment, and the circumstances under which the words were erased, were open to parol evidence. The check as drawn stated
The plaintiff testified that, upon the failure of the defendant to comply with his bid, he gave notice to the defendant of- his intention to resell the property at the risk of the latter. The defendant was unable to remember this, and thought that the plaintiff said that if he did not comply with the bid there would be a resale, but said nothing about this being, at his risk. The jury evidently believed the evidence on behalf of the plaintiff, as they had a right to do. A request was made to charge to the effect that tfyere must not only be a notice of an intention to resell, but also that the resale would be at the risk of the defendant as the original bidder, and that the advertisement of the second sale would not suffice for that purpose. Beliance was had upon the cases of Green v. Ansley, 92 Ga. 647, 650 (19 S. E. 53, 44 Am. St. R. 110), and Davis Sulphur Ore Co. v. Atlanta Guano Co., 109 Ga. 607 (34 S. E. 1011). The distinction between those cases and the present one is that in them there was a sale by a private individual. Upon the failure of a bidder at an auction sale by an individual, if the seller desires to sue the defaulting bidder for damages, the question is, how much is he hurt? A private owner of land is not obliged to resell it at all. He may sell at private sale. According to some authorities, he may sue the bidder for the difference between the bid and the market value of the property; or he may notify the bidder that he will resell the property, and hold the bidder liable for the difference between his bid and what the property brings at the second sale. In such event, the decisions above cited hold that there must be notice to the bidder of the intention to pursue the latter course, in order to establish the difference in the bids as the measure of damages, at least where there has been no tender and refusal of the property. But in a public sale under legal process, such as by a sheriff under an execution, or an administrator under an order of court, if the bidder fails or refuses to comply with his bid, the statute gives to the officer the right to sue him for the purchase-money, or to resell the property and hold the bidder liable for the difference between his bid and what the property brings at the second sale, if a less amount. The officer does not
None of the other grounds of the motion for a new trial require a reversal. Judgment affirmed.