Lamkin v. Crawford

8 Ala. 153 | Ala. | 1845

GOLDTHWAITE, J.

1. The general question as to the right of a sheriff to maintain an action against a purchaser refusing to comply with the contract of sale, arising out of his bid, at sheriff’s sale, was settled in Robinson v. Garth, 6 Ala. Rep. 204; but in that case there was no objection taken to the mode of declaring. The objection to the first count of this declaration, as insisted here, is, that if the slave remains unsold, in the marshal’s hands, no injury has been sustained by any one, as it cannot be known but more money will be produced by a resale. This may be answered by a reference to the peculiar liabilities which the law imposes on this officer, if, omitting to re-sell, and confiding in the expectation that the purchaser will pay, he returns, that by the sale of the slave, he has made the money which w'as bid. By this, he would become personally responsible to the extent of the sale returned, and his right to recover the full price, we think, cannot be controverted, if the ability to deliver the slave continues at the time of the trial; or if it has been placed at the disposal of the bidder, by a proper tender. The seller of goods which are not in themselves perishable, has the right, either to re-sell, and look to the former purchaser for damages, upon his contract, or he may make a tender and keep it good, and recover the whole original price. Such was the decision in Bement v. Smith, 15 Wend. 493. It is obvious however, that no recovery to that extent could be had, when the seller had, subsequently to the tender, appropriated the goods to his own use, or again sold them. In genera], the true rule by which to ascertain the damages resulting to the seller, from the refusal of the purchaser to go on with the sale, will be the loss actually sustained. [Gerard v. Taggart, 5 S. & R. 19; Mussen v. Price, 4 East, 147.] We think'these reasons are conclusive to show, that there is no valid objection tp the mode pursued in the first count.

2. The second and third counts assume, that the defendant is liable for the precise difference between the sum bid at the first sale, and that produced at the last; and the only difference between them is, that in the one the legal liability is supposed to grow out of the fact of purchasing at such a sale, and in the other, that it was one of the conditions of the sale. In the School Commissioners v. Aikin, 5 Porter. 169, the declaration was the same as the second count here, and would have been sustained, but for the fact, that the plaintiff had no authority to dispose of the school lands under a minimum price; and consequently no implication could arise of a right to re-sell, unless that price could be obtained. We put the decision upon the demurrer there, expressly on these grounds, and say, if upon the second sale, the lands had brought the minimum price, the declaration would have been good. That, it will be seen, was an official sale, and we think the same consequences grow out of every sale of this kind, and that there is always an implied contract to pay the difference, which is ascertained between the bid, and the subsequent sale. This is peculiarly the case with sheriffs’ sales, because the officer is bound to make the money at his peril, and the only means which the law gives him, is by a re-sale.

3. In the case of sales which are not made by official persons, this rule has no application, because the sale is not a forced one, and to let in the recovery of the difference of price, it must appear that the subsequent sale was made under such circumstances, as will indicate that a fair price has been obtained. This is the effect of our decision in Adams v. McMillan, 7 Porter, 74. We there say, where the l'ight to re-sell lands, for a failure to comply with the contract is one of the conditions, the difference between the two sales is the measure of damages agreed on by the parties, and is in the nature of stipulated damages ; but if no such condition is entered into, as one of the terms of sale, the vendor, upon a breach of the contract, would certainly bo entitled to recover such damages as he had sustained by its violation; and the difference between the first and second sale would be a good criterion of the damages sustained by the vendor; not, however, as binding on the jury, but as fit testimony to be received by them, as a means of coming to a correct conclusion. As a general rule, therefore, we think it is implied as a condition in all sheriffs’ sales, that the officer may re-sell, if the contract of sale is not complied with by the purchaser, and that the difference is generally recoverable, as in the nature of liquidated damages.

4. We say generally recoverable, because there is one condition of the property, which may exist, in which the purchaser would clearly only be liable to the extent of the money to be collected by the sheriff, and perhaps also such damages as he might be amenable for, from a failure to return the money. This condition is, where the purchaser is in reality the owner of the property sold, as the defendant in execution, or from having purchased it from the defendant in execution, after the lien of the judgment or execution had attached. In such a condition of things, the surplus arising from the sale, would clearly belong to the purchaser. [Wheeler v. Kennedy, 1 Ala. Rep. N. S. 292.] But this is considered by us, merely an exception to the general rule, which does not require a change in the form of pleading.

5. The demurrer to the second plea, we think, was properly sustained, as the plea presents no ground of defence to the action. The rule certainly is, that the sheriff is not understood as guaranteeing the property of the defendant in the thing sold. That is a matter to be ascertained by the purchaser previous to bidding, and cannot be urged against an action for the price. Whether, upon a proper application, the Court from which the execution is-ued, might not have the power to relieve a purchaser, under peculiar circumstances, is not the question here, and calls for no expression of opinion.

Having now examined all the points raised in argument, we have only to announce the conclusion, that the judgment must be affirmed.