Webster v. Hoban

Livingston, J. delivered the opinion of the Court as follows .- If there ever existed a valid agreement between these parties in relation to the house in question, on which the Court gives no opinion, the terms of it must be sought for in the articles exhibited by the auctioneer, at the thne of sale. Of these, two only bear on this case. These were, « that the purchaser should secure the pur- ** chase money with interest by his promissory notes, « with two approved indorsers, payable in 6 and 12 “ months” — and “ that the purchaser should be allowed “ thirty days to comply with these terms,_ at which « time, in case of compliance^ he was to recejye a good « and complete title to the property, and on failing to « comply within the. thirty days, the property was then * to here-sold on account of the first purchaser.” The Plaintiffs offered no evidence of any re-sale, or of any deficiency arising thereon, but contended, that the retfiedy by a re-sale was merely cumulative, and did not take away the right of action against the Defendant, for his violation of the contract. — Such is not the. opinion of this Court. The vendee, by the terms of sale, had an option of taking the estate after it was bid off to kirn, and in case of refusal, of having it sold again *402 on Ms accaunt — It might have produceu more than o?i the first sale, in which case the surplus wóuld have belonged to.him; or the same price, might have been obtairied, And then he would have lost nothing — or it might have sold for less, and then by paying the difference which would have formed his whole loss, he would not have been exposed, as he must be, if this action proceeds to ••have damages assessed against him, by some uncertain and arbitrary or unsatisfactory rule, which might be adopted by a jury. Of these advanvantages which were reserved to him by the terms of the auction, the Plaintiff had no right to deprive him. The Court is further of opinion, that nothing which was done after the sale, at ail varied the right of the parties. The judgment below is affirmed with costs.