
    Moses G. Cobb vs. David Wood.
    An administrator, having sold land of liis intestate under license from the probate court, in an action against a party who bids it off and signs the memorandum of sale, and then refuses to pay the price, so that the administrator is obliged to sell it again, may recover the full difference in price, if the land sells for less at the second sale than at the first; although the amount obtained at the second sale is sufficient to pay all debts of the testator and charges of administration.
    This was an action brought by the plaintiff, as administrator of the estate of Benjamin Muzzey, to recover damages for the non-fulfilment of a contract for the purchase of land.
    The plaintiff alleged in his declaration, and at the trial produced evidence tending to show, that he, being administrator of Muzzey’s estate, obtained a license from the judge of probate to sell so much of the real estate of his intestate, for the purpose of paying debts and charges of administration as would raise the sum of $42,611.54; that he took all the necessary legal steps and finally sold a portion of the said real estate at auction; that the defendant at said sale bid off, for the consideration of $7,280.32, certain tracts of land being those mentioned in the declaration, and signed an agreement in writing that he had purchased said tracts of land and would pay the consideration and take a deed thereof; and that he subsequently refused to pay the consideration and take the deed.
    The plaintiff also proved that subsequently to the refusal by the defendant, the plaintiff, as administrator as aforesaid and under the aforesaid license, again took the necessary legal formalities and again exposed to sale, “for the benefit of whom it may concern,” the said tracts of land by public auction at administrator’s sale, and that the parcels of land were sold for the sum of $5,303.91, being $1,976.41 less than the amount at which they had been bid off by the defendant.
    It also appeared that the appraised value of the real estate of the said Muzzey, according to the inventory returned by the plaintiff, was $51,650, being $9,038.46 more than the amount which the plaintiff was authorized to raise by sale under the license of the probate court.
    The plaintiff here rested his case. He produced no evidence of the amount of debts and costs of administration of the estate other than that contained in his petition on which the license of sale was granted; nor any evidence of the value of all of the real estate other than that contained in the inventory ; nor any evidence of any special damage to the plaintiff as administrator, or to the estate which he represented.
    The defendant, not controverting any of the facts, asked the judge to instruct the jury, that the plaintiff on this evidence was entitled to recover only nominal damages, or at most only an amount of damages equal to the costs of the second sale, because it appeared by the evidence that there was sufficient real estate to pay all debts and costs of administration notwithstanding the lesser price which the tracts of land in question brought at the second sale; and that therefore any injury or loss, caused by the non-compliance of the defendant with his agreement, was an injury to the heirs at law of Muzzey and not to the plaintiff as his administrator. But the presiding judge declined so to rule, and instructed the jury that the plaintiff was entitled to recover of the defendant the full difference between the amount of the first and second sale, with the costs of the second sale and interest. A verdict being returned accordingly, the defendant alleged exceptions.
    
      A. H. Nelson, for the defendant.
    
      J. Dana, for the plaintiff.
   Shaw, C. J.

This was a valid and binding contract entered into by the defendant with the plaintiff, and being made after the death of the intestate, the plaintiff might sue in his own name or as administrator. Mowry v. Adams, 14 Mass. 327. In either case, he is regarded as a trustee, for whom it may concern, creditors, widow or heirs, to be ascertained after-wards in a due course of legal proceeding. Consequently, whatever he recovers must be accounted for as assets. The administrator had a legal title and good cause of action, upon which no other person could maintain an action, and therefore in his representative capacity has a right to full damages sustained by the breach of the defendant’s contract. It is no defence, that others have a beneficial interest in the damages, which the plaintiff has a right to recover. The directions were right, and the plaintiff is entitled to judgment.  