The rule of damages for a breach by the buyer of a contract for the sale of personal property is well settled. The seller may store the property for the buyer and sue for the purchase price; or may sell the property as agent for the vendee and recover any deficiency resulting; or may keep the property as his own and recover the difference between the contract price and the market value at the time and place of delivery. If he sells as agent he may sell either at public or private sale, but it must be a sale made in good faith and in such manner as to produce most nearly the full value of the property. Selling as agent he cannot sell to himself. Selling involves contracting and a person cannot contract with himself and bind others thereby. If he could sell to himself publicly he could privately, and thus be able to perpetrate a fraud or an injustice which might be difficult to detect or prove. (Van Brocklen v. Smeallie, 140 N.Y. 70, 75;Pollen v. Le Roy, 30 N.Y. 549, 557; Dustan v. McAndrew,44 N.Y. 78; Hayden v. Demets, 53 N.Y. 426; Bain v. Brown,56 N.Y. 285.)
I fully concur in all that was said in the opinion in the case of Moore v. Potter (155 N.Y. 481), but I do not understand that the question here under consideration was raised or involved in that case. The sale then under consideration was not made to the seller, but to another person. It is true the *Page 411 answer charged collusion, but the evidence upon that issue was not sufficient to carry the question to the jury. The sole ground upon which the General Term reversed the judgment entered upon a verdict directed in favor of the plaintiff was that the sale was made after a receiver of the defendant had been appointed and that such sale could not be made without the consent of the court appointing the receiver. The question considered and determined in that case was whether property contracted to be sold which the purchaser had refused to take passed to and vested in the receiver of the purchaser so that it could not be sold without leave of the court. Upon this question the rule permitting the sale of personal property by the seller as the agent of the purchaser for the purpose of recovering and determining the damages of the seller was considered, and it was held that the power to sell, as agent, was limited in meaning and did not operate to vest the title of the property in the receiver in such a sense as to prohibit his right to sell.
In this case the sale was made by the seller to himself. It was made through the agency of an auctioneer it is true, but the auctioneer was his agent and represented him in the transaction.
I think the judgment should be affirmed.
PARKER, Ch. J., BARTLETT and MARTIN, JJ., concur with VANN, J.; GRAY and WERNER, JJ., concur with HAIGHT, J.
Judgment reversed, etc.