
    Eli Van Brocklen, App’lt, v. George B. Smeallie, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1892.)
    
    Vendor and purchaser—Breach oe contract—Damages.
    Defendant having refused to perform a contract for the purchase of real estate, plaintiff notified him that the best price he could obtain for it was an amount less than the contract price, and that if he did not perform he should sell for the best price he could get and hold him for the balance. He then sold at private sale, and sued for the difference. It appeared that the property was worth the contract price at the time of the breach. Held, that the court properly held that the proper rule of damages was the difference between the contract price and the actual value.
    Appeal from judgment in favor of plaintiff for six cents-damages and from order denying motion for a new trial.
    
      C. S. Nisbet, for app’lt; L. A. Serviss, for resp’t.
   Putnam, J.

There is but a single question involved in this case. The appellant, or vendor, brings the action against the defendant* or vendee, for damages for breach of contract to purchase land. The contract price was $10,000. The plaintiff testified on the trial that the property was worth that sum when the contract was made and at the time of the breach of the contract. There was no conflicting evidence in this regard. After notice plaintiff sold the property at private sale for $7,500, and claims to recover the difference between the contract price and the amount for which he sold the property of defendant. When the trial was concluded the plaintiff claimed to recover as above stated, but the court held that the rule of damages was the difference between the contract price and the actual value of the property ; the notice given by plaintiff to defendant did not bind the defendant so that the plaintiff could recover the difference between the contract price and the amount for which he sold the premises, and the court directed judgment in favor of the plaintiff for nominal damages. The plaintiff did not aslc to go to the jury on the question of value, or claim that the amount received on the resale was evidence of value to be submitted to the jury.

I think the rule of damages adopted by the court was correct. Wilson v. Holden, 16 Abb. Prac., 133; Congregation Beth Elohim v. Cent. Presbyterian Church, 10 Abb., N. S., 494; Timby v. Kinsey, 18 Hun, 255; Pumpelly v. Phelps, 40 N. Y., 66; Griswold v. Sabin, 51 N. H., 171.

The cases cited by appellant decided by courts of this state are not similar.

Pollen v. Le Roy, 30 N. Y., 549, was a case of the sale of personal property, but in that case the rule of damages was stated to be the difference between the contract price and the real value of the property. It was held that a fair public sale, in the absence of other evidence, was competent evidence of value. But in this case, as we have seen, the plaintiff did not claim that the price for which he sold the property was evidence of its value, or ask to go to the jury on that question.

The case of Miller v. Collyer, 36 Barb., 250, was that of a judicial sale under a decree in equity, and the court held that the purchaser could by order of the court be compelled to complete the sale, or that the court could upon his failure order a resale, and compel him to pay the deficiency, he having by signing the memoranda of sale submitted himself to the jurisdiction of the courts.

I doubt whether the doctrine stated in Bowser v. Cessna, 62 Penn., 148, is in all regards sustained by the decisions of the courts of this state. But in that case the rule of damages is stated to be the difference between the contract price and the market value of the property at the time of the breach. That case assumes that the price brought on the re-sale is evidence of the market value, but it holds that the sale must be a public one.; not, as in this case, private. In Griswold v. Sabin, 51 N. H., 171, also cited by' appellant, the court remarks: “ The plaintiff having sold the land at private sale, he cannot claim that the price obtained was the true value.” There was no evidence except that offered by defendant as to the re-sale, and as above stated plaintiff did not ask to have that question submitted to the jury.

The judgment should be affirmed, with costs.

Mayhah, P. J., and Herrick, J., concur.  