Banes v. Gordon

Rogers, J. Had the court below undertaken to annul the sale, as the plaintiff in error erroneously supposes, the plaintiff would have had no right of action, for that would clearly be a rescisión of the contract at his instance; but the order of the court is confined to annulling the confirmation of sale, and this was necessary before a re-sale could be had. The order was on notice to the defendants, and without objection on their part. Had they appeared at the hearing, and complied or offered to comply with the conditions of sale, the rule would without doubt have been discharged by the court. After confirmation of sale, and failure on the part of the purchaser to comply with the condition, the administrator had two courses to pursue; either to compel the payment of the purchase-money by action, or to have the confirmation of sale set aside, and proceed to a re-sale of the property. Having adopted the latter method, as they unquestionably had a right to do, the only question is, whether the plaintiff had a right of action against the purchaser at the first sale, the plaintiff having undertaken to vary and alter the terms of sale essentially at the re-sale. [His honour here stated the two conditions.] In Paul v. Shallcross, 2 Raw. 326, it is ruled, that to charge the purchaser at the first sale, the second sale must not be clogged with terms likely to lower its price. The objection is not to the measure of damages, but to the action itself. To apply that principle to this case, the terms of the second sale would be likely to lower the price, because it [428] might, and doubtless would, exclude a class of purchasers, who would otherwise be bidders at the sale. There is a great difference between paying one-half or the whole of the purchase-money, at the time the deed is delivered and possession taken. To refer the whole case to the decision of the jury would introduce an uncertain and ever variable measure of damages, whereas the only measure of damages is the difference between the price of the first and second sale. Here it will be remarked the terms of the second sale are fixed by the plaintiffs themselves, without the sanction of the court. What will be the rule when the court, under a view of all the circumstances, with proper notice to the purchasers, prescribes the conditions of the second sale, it is unnecessary to decide. This view of the case renders it unnecessary to notice the other objections, except merely to observe they have not been sustained. Judgment reversed.