
    Lorenzo Guli, Resp’t, v. Joseph I. West, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 29, 1892.)
    
    1. Contract—Breach—Measure oe damage.
    In the absence of a provision in the terms of sale authorizing such a proceeding for the purpose of determining the damage, the purchaser of land at auction cannot be held liable on failure to complete for the difference between the price at which he bought and that which the land brought on a re-sale. The true measure of damage is the difference between the price paid by the purchaser and the value of the property.
    3. .Same.
    To authorize a re-sale to be used in ascertaining the measure of damage it must have been made under the same conditions as the first sale.
    3. Same—Bights of vendor.
    Defendant, who purchased land at auction subject to mortgage, refused to complete the purchase because there were monthly tenants on the premises. Plaintiff made no effert to remove them, but re-sold the premises subject to such monthly tenancies and sought to hold defendant for the z difference in what they brought. Reid,' that plaintiff’s proper course was to procure the vacation of the premises and re-tender the deed or sue for specific performance, and that he was not entitled to recover the damages claimed.
    
      Appeal from judgment entered upon verdict and from order denying motion for new trial.
    
      J. H. Henshaw, for app’lt; D. Tim, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover damages for an. alleged breach of contract for the purchase of real estate. The plaintiff, who was the owner of certain premises in the city of Brooklyn, sold the same at public auction in the city of New York to the defendant,who thereupon paid ten per cent on account of said sale, and executed a contract for the purchase. The terms of sale were that the premises were sold subject to a certain mortgage thereon and also subject to an agreement relating to property on the east. At the time the title was to be closed the appellant refused to take the same for the reason that the premises were actually occupied by tenants. It was admitted upon the part of the plaintiff that the premises were occupied by tenants, but claimed they were allowed to remain because the defendant had. told him not to remove the tenants, but to keep them on the premises. On the 16th of July, 1890, the plaintiff resold the premises at auction, but upon different terms of sale, the same being then sold subject to monthly tenants. At this sale the premises brought $1,300 less; whereupon this action was brought to recover damages in the amount of $2,000; and upon the trial, the foregoing facts being established, the jury rendered a verdict in favor of the plaintiff for $1,433.

Upon what theory the jury arrived at this amount it is impossible to determine; but it is, perhaps, unnecessary to inquire, in view of the conclusion we have come to in respect to the rights of the parties in the case. The action seems to have been brought, and the case substantially tried, upon the theory that the plaintiff was entitled to recover as damages the difference between the price at which the property sold when bought by the defendant, and that which it brought at the resale. It is true that the court did charge to the jury the correct rule of damages, but the general tenor of the charge was as stated. We are not aware of any such rule of damage unless there is a provision in the terms of sale (which is not the case here) authorizing such a proceeding for the purpose of determining the damage. The true measure of damage is the difference between the price paid by the purchaser and the value of the property; and the only evidence offered upon the part of the plaintiff to show the value of the property tended to show that the defendant had paid no more than its value at the time when he purchased, and consequently the plaintiff suffered no damage. It is true that on the resale the property was sold at a loss ; and perhaps if the resale bad been upon the same terms, it might have been some evidence to go to the jury as to what the real value was. But clearly, it was not necessarily the measure of damages as it seems to have been claimed upon the trial below.

The court was requested to charge that in order that the second. sale might be used in ascertaining the measure of damage it should have been made under equally favorable circumstances with the first sale. This the court declined to charge, leaving it with the jury to say how far the second sale, and the price obtained at the second sale, was evidence of the value of the property.

We think the defendant was-entitled to the charge as requested. If the resale was to be resorted to at all, it could only be because the conditions of the resale were the same. rl'he jury could not be permitted to speculate without any evidence to guide them as to the effect which occupancy by tenants might have.

But apart, from this the sale to- the defendant was without encumbrances except such as have been mentioned. The property was occupied by monthly tenants. At the time of the closing objection was made upon this ground. Not the slightest effort was made to remove the objection; but it is claimed that the tenants were allowed to remain because of some vague request upon the part of the defendant.

Upon examination, the plaintiff testified: “I had a conversation with Mr. West in which he stated that if the tenants were good he would like to have them remain. I don’t know whether the statements made on this subject were what prevented me from putting the tenants out. If Mr. West had told me to send the tenants away I would do so, otherwise I would keep them with me.” Then follows the statement “ I would have had the tenants, move out but for the statement of Mr. West that they were all ready to go.”

It is therefore apparent that the plaintiff was actuated by no statement of- Mr. West in respect to allowing .the tenants to remain. It was because Mr. West did not require that the tenants should be moved out in his conversation with the plaintiff that the latter concluded that they should be allowed to remain. A party cannot be held to the waiver of a condition of a contract because of loose talk of this character. There is no ground for an estoppel, as the plaintiff himself admitted that his action was not caused by any statement of the defendant in reference to the tenants. It seems to be clear that the plaintiff was acting under a misapprehension; that he had an idea that he could re-sell the premises and compel the defendant to pay the difference and the expenses of the re-sale. In this he was clearly mistaken, as no such rule of damages obtains upon public sales unless there is some such provision in the terms of sale.

The proper course for the plaintiff to have pursued would have been, if the tenants were so ready to move out as he claims them "to have been, to have procured the vacation of .thepremises when the defendant refused to take the deed upon that ground, and to have retendered the deed or brought his action for specific performance. But he seems to have assumed that the defendant was bound to take this title encumbered by the tenancies as it was, although the contract contained no such provision. It is a significant circumstance as to the willingness of the tenants to move out, that upon the resale the premises were sold subject to the monthly tenancies. r.

It is clear that the action was commenced upon a wrong theory and was tried upon a wrong theory, and that an erroneous measure of damages was adopted by the jury.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event

O’Brien and Patterson, JJ., concur.  