
    J. Frederick Ackerman, Appellant, v. R. Fulton Rubens, Respondent.
    
      ■Contract of .sale of a chattel— damages for its breach are not fitted by the price realized on a resale where the vendor purchases.
    
    In an action to recover damages for the breach of an executory contract of sale, which provided that the title to the chattel should remain in the vendor until the purchase price had been fully paid, it appeared that upon the refusal of thé vendee to complete the purchase, the vendor notified him that he would resell the chattel'at public auction for his account and charge him with any deficiency arising thereon, and that at the auction sale the vendor bid in the property after a previous bid had been made by an outside party.
    
      Meld, that the amount bid by the vendor on the auction sale could not be used as a basis on which to measure the damages arising from the breach, and that, in the absence of any other proof of the value of the chattel or the damage .suffered, the vendor was only entitled to recover nominal damages.
    
      JSemble, that in order to entitle the vendor in such a case to recover the difference ' between the auction price and the contract price, the auction sale must be made to some one other than the vendor.
    Appeal by the plaintiff, J. Frederick Ackerman, from a judgment of the Supreme Court in his favor, entered in the office of the clerk of the county of New York on the 6th day of April, 1899, upon the verdict of a jury for six cents, rendered by direction of the court.
    
      Charles D. Ridgway, for the appellant.
    
      Henry J. McCormick, for the respondent.
   O’Brien, J.:

The action was brought to recover $1,240, alleged to be damages sustained by the plaintiff by defendant’s breach of contract for'the purchase of a sloop yacht. The complaint states that on July 28* 1897, the defendant agreed to purchase his sloop yacht Iola for the sum of $2,350, first payment to be made in July and the rest subsequently ; that on August 2, 1897, the defendant sent notice that he would not carry out the contract.; that the plaintiff notified the defendant on August sixth that. the yacht would be sold, and h@ would be held for any deficiency, and that on October sixth the boat was sold at a public auction to the highest bidder, bringing $1,100. The answer denies that the yacht was sold at auction for the benefit of the defendant, and alleges that it was sold on the plaintiff’s own account.

The plaintiff testified that after futile attempts to sell at private sale he notified the defendant that the yacht would be sold at auction on October 6, 1897. Accordingly the boat was sold for $1,100.' It was admitted that this last bid was made by a Mr. Tower as agent for the plaintiff, and that a previous bid was made by an outside party.

The plaintiff claims that the measure of damages is the difference between the contract price and the auction price, and to recover this specific amount this action. is brought. The plaintiff, upon the breach being conceded, is entitled to damages, and he may resort to either one of the three remedies mentioned in Moore v. Potter (infra) to obtain.them. Here, however, without other proof of till® value of the.boat or the damages suffered, the plaintiff insists that h® is entitled to the difference between the contract price and the prie§ bid at auction, though admittedly he bid himself, and never, as th® yesult of the auction, accomplished more, so far as title and possession of the boat áre concerned, than to go through the form of a sale,

It is agreed by counsel that the only question to be decided oil this appeal is the legality or relevancy of the sum bid at the auction sale of October sixth for the purpose of ascertaining the amount of damages to be recovered by the plaintiff for the defendant^ breach. The court said: In my opinion there was no valid sale here, and, hence, no proof of the plaintiff’s damage, and in that event plaintiff .will not be entitled to recover more than nominal damages, he having possession of the boat. * * * The view I take of the matter is that the action was brought to recover the difference, not between the contract price and the reasonable value of the boat, but the difference between the contract price and the proceeds of an alleged resale. The evidence shows no sale because there could not be a sale by the plaintiff to.himself. * * * Undoubtedly you could recover the difference between what the defendant agreed to pay for the boat and what the boat was actually worth,”

This view we think is right, for, as correctly contended by respondent, the executory contract vested no title in the defendant as vendee, the plaintiff not intending to part with title till the last payment on account; that, as the title was in the plaintiff, there was no title passed by the auction sale, and that what then happened was not a sale but the prevention of a sale; and that, if it be urged that the plaintiff held as trustee, then he was barred from purchasing at his own sale. The appellant relies on a dictum in Moore v. Potter (155 N. Y. 481, 490) where, in speaking of damages, it was said, (< one of the methods of ascertaining their amount was a resale of the property.”

The question, however, we are discussing was not directly passed Upon, viz., whether, upon such a sale, where the property is bid in by the vendor himself, the measure of damages is the difference between such bid and the contract price. That case (Moore v. Potter) id authority for the proposition that, in selling, the vendor is not the agent of the vendee. To say, then, that the vendor becomes the agent.of the vendee in making the sale is not quite correct, and is to be regarded at most as a mere fiction of law, and the beneficial title does not pass to the vendee.”

It is a strain on reason, then, to conclude that a man can sell to himself and thus establish a basis of value by which to measure damages, for after, just as before the’ sale, title and possession remain in the same person. We think that it is necessary, in order to recover the difference between the auction price and the contract price, that there must be an actual sale made in good faith resulting in the passing of title out of the vendor.

We think the judgment should be affirmed, with costs.

Van.Brunt, P. J., Rumsey and Patterson, JJ., concurred.

Judgment affirmed, with costs.  