The verdict was recovered for the difference between the amount obtained upon a sale at auction of cloakings, contracted to be sold by the plaintiffs to the defendants, and the price for which they were to be received. For a quantity of the cloakings it was held- by the court that the plaintiffs were not entitled to recover, for the reason that the contract of sale for that quantity was within the statute of frauds. As to other quantities, they were received and paid for by the defendants, but the residue included within the contracts of sale was refused, although they were offered and tendered to the defendants during the month of October, 1886. The bills, it was agreed, should be dated on the 1st of October of that year, although the contracts for the sales were previously made and entered into, and the indebtedness was finally to become due in 60 days from the 1st of October, 1886. After the goods which were refused, were in this manner tendered to the defendants, about the middle of October, 1886, and on the 2d of the following month of December, the plaintiffs gave a written notice to the defendants that they *697would be sold at auction at noon on the 7th do)' of the month, at No. 9 Greene street in this city, at the store of Underhill & Scudder, and that the defendants would be held for the expenses and the deficiency. After this notice was served the goods were advertised in two public newspapers, and the sale took place, the defendants not being present and giving it no attention, and at the trial it was held that the prices produced by this sale were to be accepted and acted upon by the jury as the amount, after deducting expenses, to be credited upon the purchase price, and the defendants were held liable for the residue. There is no question, neither was there any made at the trial, but that the sale was regularly made in good faith; but the court was asked to direct the jury that there was no evidence warranting the sale of the goods at public auction, in the manner in which it was done and detailed in the evidence. This was declined, and the defendants excepted. The court was also asked to direct the jury that they could not estimate the damages if they came to the conclusion that the defendants were liable in any form, or arrive at a verdict based upon the result of that sale. This was also declined, and the defendants excepted.
That there was any irregularity whatever in the sale was not insisted upon, or suggested, by either of these requests. Neither was it suggested that the sale had not been made as expeditiously as under the circumstances the defendants had the right to expect it would take place. But what seems to have been intended, although! it was most obscurely expressed, if, indeed, it was expressed at all, was that the sale of the goods at auction was not binding upon the defendants, and afforded no criterion by which the amount for which the verdict might be rendered could be gouged. It is true that it was held in Pollen v. Le Roy, 30 N. Y. 549, that the sale should be made according to the usages of the trade; but it was not assumed or intimated that the ordinary usages of trade for the sale of merchandise would not justify a sale at auction. The defendants themselves intimated no objection to the right to sell in that manner, or to the justice of the sale itself, in the way of ascertaining the market value of the goods. And in Sands v. Taylor, 5 Johns. 395, on the authority of which this latter case was substantially decided, the sale was made at auction, and it was held by the court to furnish the criterion by which (¡fie amount of the verdict might legally be regulated. In Fisher v Libby, 2 Thomp. & C. 672, the direct question Was presented whether a sale of goods made at auction would bind the vendee as to the amount he should pay by way of damages for the non-performance of the contract of purchase, and it was decided that it would; and no authority appears to have arisen at variance with the correctness of this conclusion. The court may well take notice, as the fact is one generally known and accepted in trade, that a sale at auction in the course of the mercantile affairs of a large city will be the most conformable to usage, and the best adapted to determine the market price for which the goods at the time could be sold. It is true that the sale, to bind the vendee for the difference, should be made within a reasonable time, and that was generally held to be the law in Smith v. Pettee, 70 N Y. 13, and it was so acted upon in Hayden v. Demets, 53 N. Y. 426. But what shall be considered a reasonable time has never been certainly fixed by the authorities. That is to be judged and ascertained by circumstances; and where the party making the sale acts in good faith, and to the best of his judgment, without any unnecessary delay, the price obtained at the sale will be accepted by the court as the value of the goods then sold. Lewis v. Greider, 51 N. Y. 231; Dustan v. McAndrew, 44 N. Y. 72. In the case of Sands v. Taylor, a longer delay intervened than that between the tender of these goods and the time when the auction actually took place. And in Lewis v. Greider, supra, the barley was sent from the interior of the state to the city of New York, and there sold after quite a long period of delay, and the sale was held to be bi nding and operative upon the defaulting vendee. There was evidence upon the trial *698that the market for the goods had a downward tendency from about the 15th of October; but it was not proved that any substantial depreciation took place in their value between the middle of November, at which date, the defendants were chargeable with no unreasonable delay, and the time when the sale was made. If there had been a substantial depreciation after the refusal of the defendants to receive and pay for the goods before the sale was made, that should have been definitely proved upon the trial, and upon that proof the defendants might then have raised the question whether the loss in that manner accruing should be borne by themselves or the plaintiffs. As the case was tried', no such question was raised. Neither were there any grounds upon which the position could be successfully taken. Beyond that, the plaintiffs appear to have acted on the supposition that they had no right to sell the goods on the responsibility of the defendants until the time for the payment of their purchase price had expired. Whether this would have been a legal excuse for,the delay before or after the middle of November, and up to the 7th of December, if the price had fallen in that time, was an objection not made at the trial, nor presented by the requests to charge. If it had been, the point, as a question of fact, would no doubt have been submitted to the decision of the jury. As the -case was disposed of, no injustice whatever has been done to the defendants. They failed to fulfill their agreement for the purchase of these goods, and refused to receive them, and became liable for whatever difference there was between the price they were to pay and the market price at the time when the goods were offered to them. Up to that time a depreciation had taken place. Whether it increased in any sensible degree after that, and before the sale, was not proven. By the sale the extent of the liability of the defendants was exhibited, and no more than that was secured to the plaintiff through the verdict. The judgment and order should be affirmed, with costs.
Van Brunt, P. J., concurs.