
    Allen, administrator, v. Curry et al.
    
    December 12, 1916.
   Atkinson, J.

In an action by an administrator cum testamento annexo, the petition alleged the following in substance: A and B conspired to suppress bidding at a public sale of the testator’s land, for the purpose of becoming the purchasers at a non-competitive price; and in pursuance of the scheme A pretended that he represented a third person who had purchased the interest of one of the legatees, falsely announced to prospective buyers, when the property was being cried off by the auctioneer, that his client would not confirm the sale unless the property should bring such a price that his fractional interest in the proceeds of the sale would be a stated amount (which was so great that the purchase-price would have to exceed the value of the property), that the title to the land in whole or in fee could not be sold by petitioner without the concurrence of A’s client, and that the purchaser at the sale must take subject to the notice thereby given. The sale proceeded; B made a bid at less than the value of the property; and other persons were deterred from bidding, by the action of A. The property was knocked off to B, but before making a deed the plaintiff discovered the conspiracy and refused to carry out the sale. Thereupon an action was instituted by B to compel specific performance, which was successfully resisted on the ground of. the fraud of A and B. Afterward the petitioner again advertised and sold the property at public sale at the highest bid obtainable, which was slightly less than the bid at which it was cried off on the first sale, The only measure of damages sought for recovery was the difference between the bid by B at the first sale and the market value of the property at that time. Eeld, that, upon the allegations of the petition, there was no right to recover the damages sought; and there was no error in dismissing the action.

Judgment affirmed.

All the Justices concur.

Action for damages. Before Judge Park. Jasper superior court. August 19, 1915.

A. S. Thurman, for plaintiff.

Creen F. Johnson and Doyle Campbell, for defendants.  