
    Girard against Taggart and another administrators of Taggart.
    Monday, December 28.
    Where goods are sold at public auction on a credit, and the vendee afterwards refuses to take them, the owner may, before the expiration of the credit, maintain an action in his own name against the vendee for a breach of the contract; in which the measure of damages generally is, the difference between the price agreed to be paid for the goods, and their value when the vendee refused to take them. This may be ascertained by a re-sale, at the risk of the vendee; but the jury are not bound by this mode of estimation, if they can find another more agreeable to truth.
    An action for the price of the goods, cannot be maintained before the term of credit has expired.
    THIS cause was tried before the Chief Justice in November last, and the case proved by the plaintiff was as follows: — The plaintiff employed Messrs. Montmollin and Moses, licensed auctioneers in this city, to sell a large quantity of goods for him, consisting principally of teas, which . T. , r r , r „ were m his own warehouse. 1 he terms of sale were, for all purchases not exceeding 1000 dollars, payment to be made in cash ; if above 1000 dollars, and not more than 2000 dollars, payment to be in approved indorsed paper, payable in 60 days, to be given and approved previous to the delivery of the goods; for all purchases above 2000 dollars, and not above 10,000 dollars, payment to be made in paper of the same kind, at 60 and 90 days ; and for all above 10,000 dollars m paper of the same kind, payable in 60, 90, and 120 days. John Taggart, the defendants’ intestate, purchased teas to the amount of 15,088 dollars, 81 cents. The sale was made on Thursday, the 23d ^December, 1813. On the Wednesday following, notice was given to Taggart, that the teas were ready for delivery, but he refused to take them, alleging, that they ought to have been ready sooner, and that in consequence of unwarrantable delay, he should be a great
    
      loser, if he took them, by the fall of the market. The plain* tiff gave him notice, that unless he took the teas, and gave approved paper, according to the terms of sale, he should have them re-sold at auction, and demand of him the difference between the price they should bring, and that which he had agreed to give. Taggart returned no answer to this communication, and the plaintiff had the teas re-sold on the 10th January following, by the same auctioneers. The terms were, payment in approved paper, as on the original sale. The loss on the re-sale was 5284 dollars 88 cehts. The plaintiff paid the duties to the Commonwealth, and the auctioneer’s commissions on the first sale. On the re-sale, the teas were bought by a third person for the use of the plaintiff, and the books of the plaintiff being produced at the call'of the defendants it appeared, that he sold them afterwards at a loss of 2250 dollars 62 cents. This suit, which was a special action on the case for damages occasioned by the defendants’ breach of contract, was commenced in less than sixty days from the time of the original sale. The Chief Justice submitted to the jury the decision of the question respecting the time when the teas were ready for delivery, instructing them to find for the defendants if they should think there had been unreasonable delay. Whether an action could be supported in the name of the plaintiff was a point which his Honour reserved for the consideration of the Court in bank; and as to damages, he gave his opinion to the jury, that the .plaintiff was entitled to recover the difference between the price agreed to be paid by Taggart, and that which the teas would bring when he broke his contract, by refusing to take them; leaving it to the jury to decide, what that difference was. The jury found for the plaintiff, taking for the standard of damages the difference between the original sale and the re-sale. The defendants obtained a rule to shew cause, why there should not be a new trial, and in support of the rule relied on two points.
    1. That an action could not be maintained in the name of • the plaintiff.
    2. That the jury were mis-directed on the subject of damages.
    Meredith, for the plaintiff.
    Had the sale in the present instance been made by a common factor instead of an auctioneer, the owner’s right to sue, would not have been called in question. A sale by a factor, creates a contract between his principal and the buyer, which gives a right of action to the principal as well as to the buyer; and if a bond even be taken by a factor in his own name, without describing his representative capacity, the principal may give notice to the buyer, not to pay to the factor but to himself; and if the proceeds of his goods have been invested in land or in stock, he may follow them. Scrimshire v. Alderton.
      
       Burdet v. Willet.
      Price v. Ralston.
      
       Whitcomb v. Jacobs.
      Taylor v. Plumer.
      
       These cases shew how far the interests of the principal are guarded, who may not only have recourse to the agent in whom he has confided, but may interfere between him and third persons. The only question then is, whether there is any thing in the character of an auctioneer which alters the ordinary relations of principal and factor ? In what respect does he differ from a common agent ? It is true, he receives his commission from the Governor, is liable for the payment of duties, and is compelled to give bond, but as regards those for whom he does business, he stands in the same situation as other agents, invested with the same powers and bound by the same responsibilities. An auctioneer is the agent in the first instance of the seller, and after the sale is effected of both parties. Simon v. Motivos.
      
       Hinde v. Whitehouse.
      
       The contract is made for the benefit of his employer, and in all such cases, the person beneficially interested is entitled to maintain an action. Note to Pigott v. Thompson.
      
       Note to The Company of Feltmakers v. Davis, 
      
       So far from any doubt being entertained in England., whether the owner possesses a right to sue, it was seriously questioned in the case of Williams v. Millington,
      
       whether an auctioneer could maintain a suit even for the price of goods sold and delivered. If an auctioneer in Philadelphia differs in any respect from a common factor, it is merely in relation to the sale; after that is accomplished, his public character ceases, and as to the collection of the money, he is certainly no more than the agent of the party. By giving the right of action to him instead of the auctioneer exclusively, and thus forcing the owner to resort to the auctioneer, circuity of action, which is always odious to the law, is avoided.
    2. As to the plaintiff’s right to bring the suit at the time it was instituted, we contend* that, the moment the contract was broken, the party injured had a right of action against him by whom it was violated. Taggart knew to whom the goods belonged, and agreed to give his notes for them; they were ready for delivery in due time, and the plaintiff sustained an immediate injury by the defendants’ refusing to accept them, and thus an immediate cause of action accrued, in which the damages were as easily ascertained at that time as they would have been after the expiration of the term of credit. Those damages were obviously the difference between the amount of the first sale and that of the re-sale. This the jury adopted as the standard, and that it was the true one is proved by the case of Adams v. Minick, decided by this Court in March, 1814, where the defendant refused to accept the goods, and the plaintiff sold them at auction and recovered the difference of price; and by Mertensv. Adcock.
      Sands v. Taylor.
      Hazard v. Van Amringe. If this action had been for the price of the goods, instead of damages for a breach of contract, the plaintiff would have stood on very different ground; for there would then, perhaps have been some force in the argument, that the suit was brought before the credit had expired.
    
      Tilghman and Binney, for the defendants.
    The first point may be subdivided into two questions, though perhaps there is no very essential difference between them. 1. Whether the owner of goods sold at auction can maintain an action in his own name for the price. 2. Whether he can maintain an action for damages, for not accepting the goods.
    1. The decision of this question depends on our own acts of assembly, and cannot be affected by adjudications on the English law, between which and our own there are radical differences. Prior to stat. 17 Geo. III. ch. 50, which was repealed and supplied bystat.19 Geo. III. ch.56,there appear to have been in England, no legislative regulations on the subject of auctions. The auction business there is open to every body who will take out a license, and give bond for the payment of the duties. The law provides no commission on selling, and imposes no obligation on the auctioneer to collect and pay over to his employer. It has an exclusive reference to revenue ; the only object so far as the government is concerned, being to secure a duty. In Philadelphia, auctions are placed on a very different footing. Auctioneers are public officers, who receive their appointment from the Governor ; their number is limited, and their duties are regulated by law. To the regularly commissioned auctioneers alone, all those who have goods to dispose of in that way are compelled to resort, and the interests of the owners are secured by the bonds into which the auctioneers are obliged to enter, for the faithful discharge of their office, as well as for the payment of duties to the state. The compensation to which they are entitled is single and indivisible for all their services. The commission is not upon the sale only, but upon selling, collecting, and paying over combined, and it is evident, that the legislature intended by thus compounding the services and the compensation, by making the auctioneer liable for the duties to the Commonwealth, and by requiring of him a bond co-extensive, with all these objects, to give him the sole controul over the contract. Acts of 14th February, 1729, 26th November, 1779, 23d September, 1780, 13th April, 1782, 9th December, 1783, 19th March, 1789,
      
       27th March, 1790. The duties and powers of an auctioneer are like those of a sheriff. The moment the goods come into his hands, he has authority to carry the business to a conclusion, and like a sheriff he has a joint commission, on selling, collecting, - and paying over. The amount of the commission may be regulated between the auctioneer and his principal, but the nature of the services to be performed cannot, because those services are regulated by the legislature. In England, none of these powers and none of these duties attach to auctioneers, who are governed in their intercourse with their employer, by the general principles relating to principal and factor. In favour of the position, that the right of action belongs to the auctioneer alone, we have the authority of several decisions which have for a long time been unquestioned, and of a usage growing out of those decisions. In the case of Willing v. Rowland,
      
       the Court, taking the view of the subject that is now taken, and deciding upon our own acts oí assembly as different from the English law on the subject, were unanimously of opinion, that the owner of the goods had no action against the vendee, but must look to the auctioneer. The manuscript notes of this case of the late Chief Justice M‘Kean shew, that this was the single point before the Court, and that the question of set-off did not enter into their contemplation, in coming to the decision. It admits, indeed, of very great doubt at least, whether a purchaser at auction can set-off a private debt due from the auctioneer who is always known to be selling the goods of others. This decision, which is entitled to great respect, was relied upon in Yard v. Lea’s executors,
      
       in which Judges Smith and Brackenridge, then composing, in the absence of their brethren, the whole Court, and whose judgment was afterwards affirmed by the high court of errors and appeals, emphatically deny the right of the owner to maintain an action against the vendee, and declare, that this right belongs exclusively to the auctioneer.
    2. On the second branch of the first point, little need be said; for if the plaintiff cannot support an action for the price of goods sold and delivered, it seems to follow as a necessary consequence, that he cannot recover in his own name for non-acceptance of the articles; because both suits would be founded in the same contract.
    
      Second. The conditions of sale were, a credit of 60, 90, and 120 days. Before'the expiration of the credit, the plaintiff could recover only such damages as arose from the non-delivery of the notes. It is perfectly clear, that no part of the price of goods sold on credit, can be recovered in an action brought before the credit has expired, except in case pf fraud. Mussen v. Price, 
      
       De Symonds v. Minchwich.
      
       Dutton v. Solomonson.
      
       Brooke v. White.
      
       2 Com. on Cont. 221. 223. 230. Slade’s case.
      
       And it is equally clear, that this is substantially an action for the price. The loss on the re-sale is only the measure of damages ; it is that part of the price which was not received from the proceeds of the re-sale, and for this part of the price the present action is brought. If there had been no re-sale the plaintiff might have proved the difference of value, by pi-oving what goods of a similar quality sold for at the time, and that difference, which would have been an equally good standard of damages, would surely have been part of the price. The plaintiff might maintain this action if no subsequent one would lie ; but as he might have sued for the price when the proper time arrived, he can now recover no more than the damages which accrued, in consequence of the defendant’s failure to deliver the notes, and these damages are merely nominal. If this action is maintainable, Girard might, by an execution on an award of arbitrators, have had the whole price of the goods in his pocket, before the notes were to become due, which would have been unjust, and in direct opposition to the contract.
    
      Ingersoll, in reply.
    1. When this'suit was brought, neither the Commonwealth nor the auctioneer had any interest in the . business; the duties and commissions having been paid, it became a matter wholly between the plaintiff and the defendant. An indisputable rule of law is, that wherever the strict legal right is in A., and the equitable right in B., an action may be sustained by A. for the use of B. What difference in substance is there between an action brought as this was, by the principal in his own name, and one brought in the name of the auctioneer for the use of the principal ? But the argument will be met on strictly legal grounds. It is of vast importance to merchants, that the owner of goods sold at auction, should, if he pleases, have the privilege of paying the duties and commissions, and collecting the money himself. Immense sums pass through the hands of auctioneers, and in case of their insolvency, their official bonds furnish a very inadequate security against loss to their employers. The chief difference between the law of England and Pennsylvania on the subject of auctioneers is, that by our law the interests of the owner are more carefully guarded. It is conceded, that in England an auctioneer stands in the same relation to his employer as a common factor, and that by the law of principal and factor, the former may maintain an attion on a contract made by the latter, subject, however, to certain liens of the factor. Why should not the same rule apply to auctioneers in the city of Philadelphia ? They sell for their principals, and in our acts of assembly there is no 1 1 ’ _ - intimation whatever, that the principal, who has paid the commissions and duties, may not support an action ; and the circumstance of the owner’s being compelled to make use of a commissioned auctioneer instead of an agent of his own choice, is a strong additional reason why he should collect the money himself. It is said, that an auctioneer has a lien for his commissions ; so has a factor, even for a general balance of account; — .that the usage is for an auctioneer to collect and pay over to his employer; the usage is the same with respect to a factor; — that an auctioneer gives security ; security is often given by a factor; but whether it be given or not can make no difference, where the duties and commissions ai*e paid. The great reliance of the defendant is on the case of Willing v. Rowland, which is supposed to have decided the very point. An analysis of that case, however, will shew, that even if it be law, it is essentially different from this. The purchaser had a set-off, as appears from the notes of the present Judge McKean, who was counsel in the cause, which was equal to the debt claimed by the plaintiff, and it was not known to him, that the plaintiff was the owner of the goods. This formed a leading feature in the case, and the counsel in arguing it, did not put it on our acts of assembly, but on its own special circumstances, which they contended gave the action to the auctioneer under the law of England. But the case of Willing v. Rowland is not entitled to much weight, for although it was decided by three Judges, their opinion was pronounced without deliberation, in the hurry of a trial, and in a cause in which the matter in controversy was trifling. It therefore has much more the character of a Nisi Prius decision, than that of a solemn adjudication, and if it was decided on the ground of set-off, it certainly cannot be supported; for there is no authority to be found for a set-off against one known to be a factor, as all auctioneers are. Another feature of that case, and one which essentially distinguishes it from the present, is, that it was an action for the price of the goods, not an action for a non-compliance with the contract, to recover damages for which the auc - tioneer has no authority by the acts of assembly, and to which his official bonds do not extend.
    2. The second point, involves the questions, whether the plaintiff has brought his action prematurely ; and whether he is entitled to more than nominal damages. When the defendant refused to deliver the notes, it was a violation of the contract on his part; in consequence of which, the plaintiff sustained an immediate injury, and the true measure of that injury was, the fall in the price of teas ; or, in other words, the difference between the price at the time of the sale, and at the time of bringing the suit. The action therefore being for the damage, which was immediate, and not for the price, which had not become due, was well brought as soon as the damage arose. The course adopted by the plaintiff was not only legal and equitable, but far more beneficial to the defendant, than if he had waited until the expiration of the credit; for the books of the plaintiff shew, that after the re-sale, he sustained a loss on them, of more than g 2250. Analogous to this case, is that of a sale of land. If I covenant in a conveyance, that I am seised of an indefeasible estate in fee, the grantee may maintain an action immediately, if my title is not good; but if I warrant, no action will lie, until eviction. The cases cited on the opposite side, all go to shew the plaintiff’s right of action in the present form. In Mussen v. Price, though it was decided, that assumpsit for goods sold and delivered, would not lie until the expiration of the credit; yet the Judges expressly say, that one might have been brought immediately, for a breach of the contract. Dutton v. Solomonson, is to the same effect. De Symonds v. Minchwich, is in harmony with the other two. That, likewise, was an action for the price of goods sold, and Chief Justice Eyre declares, that even in such a case, an action might be brought before the credit had expired, if the vendee intended to impose on or defraud the vendor.
    
      
       2 Sir. 1182.
    
    
      
       2 Vern. 386.
    
    
      
      
        2 Dall. 60.
    
    
      
       l Salk. 160.
    
    
      
       3 Maule & Selw. 562.
    
    
      
       3 Burr. 1921.
    
    
      
      
         7 East, 558. 571.
      
    
    
      
       3 Bos. & Pull. 149.
    
    
      
       1 Bos. & Pull. 101.
    
    
      
      
         1 H. Bl. 81.
    
    
      
      
        а) 4 Esp. Rep. 251.
    
    
      
       5 Johns. 395.
    
    
      
       4 Binn. 293.
    
    
      
      
         Gall. L. 154.
    
    
      
      
        M‘Kean's L. 245,
    
    
      
      
         1 Sm. L. 509.
    
    
      
       2 Dall. L. 56.
    
    
      
       2 Dall. L. 166.
    
    
      
       2 Dall. L. 680.
    
    
      
       2 Dall. L. 777.
      
    
    
      
       4 Dall. 106. note.
      
    
    
      
       3 Yea,es, 335.
      
    
    
      
       4 Dall. 95.
    
    
      
       4 East, 147.
    
    
      
       1 Esp. Rep. 430.
    
    
      
       3 Bos. & Pull. 582.
    
    
      
       4 Bos, & Pull. 330.
    
    
      
       4 Co. 93.
      
    
   Tilghman C. J.

(After stating the principal facts.) 1. By the principles of the common law, the sale of the factor is the sale of the principal, the factor being no more than the instrument by whom the principal acts. An action may indeed be supported by the factor, and a payment made to him is good, unless forbidden by the principal. But the principal may take the collection into his own hands, and maintain an action in his own name. This power of collection, however, is subject to certain restrictions. The factor has a lien to the amount of his account against the principal; ancl ^ goods have been sold by the factor in his own name, without any notice of their belonging to another, the nur- , 00 ’ 1 chaser who took them on an understanding that they were the property of the factor, may set off a debt due from the factor to himself. Subject to these and some other exceptions, not necessary to be enumerated, the money for which the goods are sold, is considered so entirely the property of the principal, that - wherever it can be traced and identified, though it has changed its form, by an investment in other goods, or even in lands, the principal shall retain it. And if the factor takes notes or lands in his own name, he is no more than a trustee for the principal. This was recognised' as the law of Pennnsyhernia, by the late Chief Justice Shippen, in the case of Price v. Ralston assignee of Pollard, a bankrupt. 2 Dall. 60. In that case, Pollard, the agent of Price, had taken a bond in his own name, yet held, that it was the property of Price. Indeed, this law has not been denied by the defendant’s counsel, but they distinguish the case of a licenced auctioneer, from the common case of principal and factor, and contend that by virtue of our acts of assembly, the sole power of collection, including the . right of action, is vested in the auctioneer. If it be so, it ought to be made out by express words,- or unquestionable inference, because the consequences are of extreme importance to this city. Let us examine then, the reasons assigned for this construction of the acts of assembly. I say construction, for it is not pretended, that there is any express proviso on the subject. The auctioneers are appointed by the governor, and have the exclusive right of selling by public auction; they give bond for the payment of duties due to the Commonwealth, and for the performance of their official duty in-general ; and are entitled to a commission for selling, collecting, and paying over to the person whose goods they sell. These, I think, are the principal features, in which an auctioneer is supposed to differ from a common agent. ■ As for the appointment by the governor, and the exclusive right of selling, I cannot perceive, why they should change the general principles of law ; indeed the circumstance of exclusive privilege of sale, renders it necessary, that -the owners of the goods should retain every right which they possessed before the making of these acts of assembly, because they are deprived of the choice of agents. The object of those acts, is twofold; — to obtain a revenue for the state; and to prevent the mischiefs arising from unlicenced auctioneers, which afforded a facility to the sale of stolen goods. If these objects can be attained, without breaking in upon important principles, previously established, it is our duty to preserve those principles. It is evident, that the legislature, far from intending to injure those persons whose goods are sold, has been anxious to protect them. This appears from the second distinguishing circumstance relied on by the defendants ; the bond which is given by the auctioneers with security, before they are permitted to discharge the functions of their office ; which bond was decided in the case of Yard v. Lea’s executors, to be,'in fact, for the benefit of their principals. But this security, though of use, affords no just ground for depriving the principal of all controul over his property; because it is altogether inadequate to the immense amount of goods sold at auction. Indeed, so trifling is it, compared to that amount, that it will operate as an excessive grievance, if it is made a pretext for vesting the auctioneers with the exclusive right of collection. But what is there in this security, which should divest the principal of his usual rights ? Suppose a private factor should give security; would that make any change in the rights of his principal? Surely not; and why then, should it make any alteration, in the case of an auctioneer ? The next circumstance relied on, is, that the law gives a commission to the auctioneer, for selling, collecting, and paying over ; and therefore it is argued, that by implication, it gives him the right of collecting; otherwise he would be entitled to no commission. This objection, is easily answered. If the principal prevents the auctioneer from collecting, he must pay the full commission, because he himself is the cause of the non-collection. But, it is said, the law makes the auctioneer liable for the duties dn all goods sold by him, and therefore it must have been intended to give him the collection. I grant that he must be understood to have the power of receiving, so far as concerns those duties, and his commissions. And for this purpose, he may retain the necessary sums, from all monies which come to his hands; and he has, moreover, a lien on all sums uncollected. He may forbid payment to the principal, so far as concerns duties and commissions ; and even without express notice, I apprehend, that all persons are bound to know, that duties and commissions are due on all sales at auction, and if paid t0 any person but the auctioneer, it is at the peril of the pay- - r . 7 , : , er. In the present instance, there is no conflict between the plaintiff and the auctioneers. All duties and commissions have been paid; and on full consideration of the subject, I could not entertain a particle of doubt, were it not for the case of Willing & Co. v. Rowland & Co., which has been pressed upon us by the counsel for the defendant. This case is to be found in 4 Dall. 106, in a note to the case of Lea's executors (in error) v. Yard. From the short report of Mr. Dallas, it appears that the auctioneer was insolvent, and the defendant claimed the right of set-off of a debt due to him from the auctioneer. It does not appear, that the Court decided on the right of set-off; but they were of opinion, that the defendant could not support the action, because the act of assembly vested the right of action in the auctioneer. With all the respect which I sincerely feel for the Judges who made that decision, I may remark, that there appears to have been not much argument, and in the hurry of a jury-trial, there is very little time for deliberation. It is worthy of remark too, that from two manuscript notes which have been shewn to us, it would seem, that the Court ruled the case upon a point not made by the counsel. Mr. Bradford, on behalf of the plaintiff, relied, not on the act of assembly, but upon the common law, which, he contended, under the particular circumstances of that case, barred the plaintiff’s action. We know not how long before the commencement of the suit, the goods were sold; possibly the time might have been considerable, and the purchaser might have settled with the auctioneer, not knowing the plaintiff in the transaction. I might distinguish the case before us, from Willing v. Rowland, by observing, that the present action is not for the price of the goods, but for damages for not taking, and paying for them. But as that would leave a very important question undetermined, I think it best to decide now, upon the very point which is supposed to have been decided in Willing v. Rowland. I know the danger of departing from precedent, but it would be too much to say, that in no case is it to be departed from. Where former decisions have passed into a rule of property, no authority inferior to the legislature, should attempt to shake them. But where that is not the case, and it is evident, that a judgment has been given without time for deliberation, it may be proper to do what the same Judges would have done, had they , „ , ,, been allowed an opportunity. It is said, however, that the case of Willing v. Rowland, has been sanctioned by the High Court of Errors, in Lea’s executors v. Yard. Had that been the case, my mouth should never have been opened in opposition to it. But it is not so. The only point decided by the Court of Errors, was, “ that the auctioneer’s bond was intended by law, for the benefit of his private customers, as well as for securing the duties payable to the government.” These are the very words of the Court, in the only report which we have of that case. 4 Dall. 106. Indeed, it is evident, that there was no other point in contest; and therefore, any other decision would have been extra-judicial. This observation may apply to the opinions delivered by Judges Smith and Brackenridge, when the same case was before this Court, before it went to the Court of Errors; so that I understand the case of Lea’s executors v. Yard, as affording no support to Willing v. Rowland. Upon the whole, when I consider the prodigious amount of sales at auction, and the consequences of establishing it as a principle, that the vendors lose all controul over their propertyj when I consider too, that the act of assembly, neither by express words, nor according to my apprehension, by intendment, establishes any such principles; and that it rests upon a single decision made in the hurry of a jury trial; I cannot hesitate in declaring my opinion, that the plaintiff may support this action in .his own name.

2. The second point relates to damages. It is objected, that the plaintiff has recovered the full price of his teas, contrary to the terms of sale, by which Taggart was allowed a credit of 60, 90, and 120 days. But it is not so; he has neither recovered nor demanded from the defendant the full price of the teas. It is confessed, that the agreement was broken by Taggart, before the commencement of this action. No case was, or could be cited, to shew that the plaintiff had not cause of action. If he had cause of action, he had a right to recover the full amount of his damages. What was that damage ? It arose from Taggart’s throwing upon him a quantity of tea, which he had promised to take at a certain price, and its amount was the difference between the price agreed on, and its value, when Taggart refused to take it. The defendants’ counsel rely principally on the cases of Mussen v. Price, 4 East, 147. Dutton v. Solomonson, 3 Bos. & Pull. 582, and Brooke v. White, 4 Bos. & Pull. 330. But those cases differ essentially from the present. The goods were sold and actually delivered upon agreements, that the purchasers should make payment in bills payable at a future day. The purchasers failed in delivering the bills, and the plaintiffs, before the expiration of the time which the bills would have had to run brought suit, not for damages for the breach of contract in not delivering the bills, but for the price of the goods; they declared on a general indebitatus assumpsit. This kind of action is founded on an implied assumption, and the Court decided, that the law would not imply an assumption against an express agreement. If the plaintiffs in those cases had waited till the expiration of the time allowed for the payment of the bills, indebitatus assumpsit would have lain; but not before. Now how do those decisions bear upon the case before us, in which the action is not indebitatus assumpsit but special, on the breach of contract ? The defendants’ have done all in their power to rescind the contract. On that ground the plaintiff meets them; he consents that they shall not take the goods, but insists on immediate satisfaction for the injury he has sustained. And in so doing he has favoured the defendants. It would have been worse for them, if at the end of 120 days they had had to pay the full price. When Taggart refused to accept the goods, the plaintiff might have kept them without a re-sale, and brought suit for the damage. But without a re-sale, it would have been difficult to ascertain the amount of damage. For this purpose, a re-sale has been the usual practice, and it was sanctioned by this Court, in the case of Adams, &c. v. Minick. The jury, however, were told, that-they were not bound by this mode of estimation, if they could find another more agreeable to the truth. Upon the whole, not perceiving that the verdict was against law or justice, I am. of opinion, that the rule to shew cause should be discharged.

Gibson J.

Since the argument, I have reflected much on tae decision in Willing v. Rowland, which, I am Well satisfied, ought not to stand. It was, in effect, a Nisi Prius decisión, with this difference, that all the Judges were present, and concurred: but that it was a hasty opinion, appears, not only from its having been delivered while a jury were in waiting at the bar, but also from the manuscript note of Chief Justice M‘Kean ; from which it seems the point was decided on ground, different from that on which it was argued by the counsel. Lea v. Yard, affords but little additional authority, as the point did not necessarily arise : for, although the auctioneer may not have an exclusive authority to collect, he has an undoubted authority to receive the price of the goods as the agent of the vendor; and hence, the same necessity, that his official bond be considered a security for whatever may pass through his hands in the usual course of his business. This case was affirmed in the high court of errors and appeals ; but on what ground, we know not: in all probability, the present point was not considered. Then, authority being out of the way, there is nothing on which an argument can be rested. It never was the object of the legislature to create a monopoly of this sort of business, or vary the common law relation of buyer and seller; but only to collect a duty, and, at the ^ime time, secure the seller from the misconduct of an agent, whom he is, in some measure, compelled to employ. What else can be inferred from the commission and bond of the auctioneer? An exclusive right to collect is not necessary to secure the duties to the state, or his commissions to the officer: the lien which he has by the common law, is amply sufficient for that. In the actual state of the auction business, a contrary construction would lead to the most intolerable evils. Goods to the value of twenty times the amount of the auctioneer’s bond, as was the case in this very instance, are put into his hands to be sold: can it be believed that the legislature ever intended the seller should trust to the auctioneer’s solvency ? We must first believe they intended to put an end to the auction business altogether. The extension of this mode of Selling, unprecedented in former times, and the frequent instances of failure of those officers, to an amount that renders their bond unworthy of consideration as a security, would forbid any one of reasonable discretion, to trust to a responsibility so precarious. Had the decision of Willing v. Rowland, even been the deliberate opinion of the Court, I would overrule it without hesitating; for, however comparatively harmless the principle it contains might be, when applied to the state of things which existed when that case was decided, to apply it to the present °f things, would be certain ruin to every one compelled by necessity, or induced by indiscretion, to send his goods to the auction room. Had the present prodigious extension of the auction business, presented itself to the mind of the Court, as a thing likely to take place; it cannot be doubted, but the decision would have been different.

On the other point, I have no doubt. Where goods arc sold and delivered on a credit, and the vendee has violated •the contract only in one particular, the damages will be commensurate only with the actual breach. But the present is a very different case from that of á contract partly executed by the vehdee, and broken only as to a condition incidental, or collateral, to the principal thing he was bound to perform. Here, the defendant rejected the contract in toto, and therefore, violated it in every part. The damages recovered, are not the price of the goods sold, but a compensation for the disaffirmance of the contract; and the difference on the resale, is merely the measure of the damages actually suffered. Properly speaking, the seller cannot recover the priqg, where he has retained the goods in consequence of the buyer’s refusal to comply with any part of the contract: he recovers damages for the breach of a contract which was entirely executory when it was broken; and the breach, having put an end to every idea of further performance by either, is a violation of the contract in all its parts, for which the seller may recover whatever damages he can prove he has sustained. The buyer, after having disaffirmed the sale, as far as he could by acts of his own, must not be permitted to treat the contract as still existing for the purpose of being performed by him, specifically ; but the seller may, if he please, consider it as existing only for the purpose of giving a remedy for its breach; and this he has here done, by retaining the goods, and going merely for the loss actually suffered, as ascertained by the difference of price on the re-sale. It is for the same reason that the vendee, when the purchase has been fraudulent on his part, is precluded from insisting on the terms of the credit: the law will not suffer him to avail himself of conditions dishonestly obtained; but the contract,- for the purpose of compelling him to answer in damages, remains in full force. I am of opinion the plaintiff should have j udgment.

Duncan J.

delivered an opinion to the same effect, which has been mislaid'.

Motion for a new trial refused.  