When this case was before this court at the last term upon a non suit, the facts being substantially as they now are, this court reversed the court below, awarding a non-suit, holding that “ an administrator can recover from a bidder at his sale, who fails to comply with his bid, the difference between the sum bid and that which the land subsequently sold for;” that if the second sale be delayed at the instance of the bidder, this delay will not relieve him; and that if the second bidder does not comply with his bid, *29and the property is sold a third time, and the last sale is delayed at the instance of the first bidder, he would still be liable for the difference between what the property brought at the last sale and the sum he bid at the first sale.
When the case was tried, the court charged the jury that, if Palmer bid at the second sale for himself, and not as the agent for Seay, then the plaintiff could not recover. We think this charge is erroneous. Seay’s liability continued, when Palmer refused to comply with his bid, until the final sale. When the sale was completed and the terms complied with by the bidder, then the measure of Seay’s liability -was fixed as the difference between what the land brought at the final sale and that which he bid at the first sale. Whether a delay in offering the property for sale, when it has been once offered, and the bidder has failed to. comply with his bid, be unreasonable, is a mixed question of law and fact, to be determined by the jury under proper instructions from the court, and it is error for the court to determine this question himself.
The questions in this case were virtually determined when the case was here before.
Judgment reversed.