9 Port. 104 | Ala. | 1839
-That the seller of property may resort to his action against the purchaser, for the recovery of such damages as he shall sustain, by the failure' of the latter to complete his purchase, is a proposition too plain to require illustration. In such a case, the recovery must be graduated by the injury which the seller sustains; unless, perhaps, where that injury is increased by his own imprudent course of conduct, in regard to the thing sold. If a purchaser refuses to comply with his contract, he absolves the seller from the obligation to continue in a situation which will enable him to deliver the article sold: whenever he shall, thereafter, change his mind, he may sell it if he think proper. In fact, a
In that case, the declaration disclosed the fact of a resale, and stated the difference between the first and second sale, and this was the sum sought to be recovered. The court say, further — “A re-sale was not necessary to fix the liability of the defendant for a breach of contract, and the action, in another form, could have been maintained, without showing a re-sale: it might be one mode of ascertaining the amount of damages, perhaps the best, but certainly not the only way of ascertaining the same.”
To the same effect is Adams vs. M’Mtllan — (7 Porter’s Rep. 73.) If a re-sale was not essential to the plain
The second instruction of the judge of the County court, is entirely opposite to the course of judicial decision at common law — and though it may be defensible in ethics, or sustained by a well settled rule of the civil law, we do not feel called on to examine it further; but will content ourselves with saying, that it is adverse to the previous decisions of this court — (See Ricks vs. Dilla-hunty, 8 Porter, 000, and cases there cited.)
It was objected at the argument, by the defendant’s counsel, that under the pleadings, the plaintiff could not have been injured by the charge to the jury, however erroneous it may be in itself. We think otherwise: the first count in the declaration is well adapted to the facts disclosed in the bill of exceptions, and the instructions to the jury calculated to prevent a recovery,
The defendant’s counsel, upon the supposition that the opinion of the court might be against him, upon the .questions of law raised by the plaintiff, insists that the
In the first place, it may be remarked, that the record does not inform us for what cause the motion for a new trial was submitted to the County court, so that, for any thing appearing to the contrary, it may have been founded on causes entirely different from those embraced by the bill of exceptions. If such be the true state of fact, —and if necessary, we would intend it, — it was the duty of the County court to have entertained the motion for a new trial, without putting the plaintiff to elect the motion at the expense of waiving his exception.
But for the purpose of settling a question of practice, we will suppose that the grounds of exception, and motion for a new trial, were identical. It is said, that if a party is dissatisfied with a decision of a subordinate court, upon a point of law, he may ordinarily cause it to be reviewed in either one of two modes. 1st. He may move the court for a new trial; 2d. He may tender his bill of
exceptions, and thus put the question on record, in order that it may be examined on appeal or writ of error. But he should not, tinder ordinary circumstances, be allowed by the subordinate court to pursue both courses. If he relies on his motion for a new trial, then his objection does not appear on the record, and of course an appeal or writ of error would be of no avail. But if he have his bill of exceptions sealed, the court should not grant a new trial, on the ground stated in the bill of exceptions, for the question is then on the record, and the error, if any, may be corrected by an appellate court — (Fabrigas vs. Mastyn, 2 Wm, Bla. R. 929.) It has more recently been
A motion for a new trial addresses itself to the discretion of the court trying the cause, and is governed by the circumstances of the case, and those rules which have, from time to time, been adopted, as applicable to the subject. Following what we conceive to be the best established practice, we are of opinion, that the court trying the cause ought not to grant a new trial for the causes embraced by a bill of exceptions, unless the party submitting a motion distinctly waives the exception. If, however, the primary court make no such requisition of a party moving for a new trial, but allows his exception, and considers and overrules his motion for a new trial, the appellate court cannot refuse to consider the exceptions. This would be to interfere with the discretion of
The judgment of the County court must be reversed,, and the case remanded.