-That the seller of property may resort to his action against the purchaser, for the recovery of such damages as he shall sustain, by the failure' of the latter to complete his purchase, is a proposition too plain to require illustration. In such a case, the recovery must be graduated by the injury which the seller sustains; unless, perhaps, where that injury is increased by his own imprudent course of conduct, in regard to the thing sold. If a purchaser refuses to comply with his contract, he absolves the seller from the obligation to continue in a situation which will enable him to deliver the article sold: whenever he shall, thereafter, change his mind, he may sell it if he think proper. In fact, a *107sale, if properly conducted, never can prejudice the purchaser, and would often be beneficial to the seller. Suppose the thing sold, subject to waste or to perish, immediately. — if the seller were obliged to Iceep it, the purchaser would be liable to the full amount of the purchase money; but, if allowed to re-sell them, the purchaser would be entitled to a credit, for so much as it yielded, upon the resale, and would only be charged for the deficit. Thus we discover, how unreasonable would be a rule, requiring the seller to suffer the article to perish on his hands, and run the risk of the solvency of the buyer. It is unnecessary, however, to consider at greater length,' this particular question, for it was largely examined, in the School Commissioners vs. Aikin — (5 Porter’s Reports, 169;) and in that case, the court say, “After a purchaser has absolutelj7 refused to comply with a contract of sale, the seller is at liberty to consider the contract at an end, and immediately sue for the damages he has sustained.”
In that case, the declaration disclosed the fact of a resale, and stated the difference between the first and second sale, and this was the sum sought to be recovered. The court say, further — “A re-sale was not necessary to fix the liability of the defendant for a breach of contract, and the action, in another form, could have been maintained, without showing a re-sale: it might be one mode of ascertaining the amount of damages, perhaps the best, but certainly not the only way of ascertaining the same.”
To the same effect is Adams vs. M’Mtllan — (7 Porter’s Rep. 73.) If a re-sale was not essential to the plain*108tiff’s right, and was not conclusive, as to the damages, to which he was entitled, it is difficult to conceive of any reason for requiring the purchaser to he informed of the time and place of re-sale. The amount yielded, at the re-sale, we have seen, is not conclusive, to show the extent of his liability, and he may, whether he have notice or not, show its unfairness; or that it was made, under circumstances, unusual, and calculated to prevent a sale, at a fair price. The contract, then, between the seller and purchaser, being at an end, in consequence of the default of the latter, he had no right to insist upon the necessity of notice: and the court erred in the instruction to the jury, on this point.
The second instruction of the judge of the County court, is entirely opposite to the course of judicial decision at common law — and though it may be defensible in ethics, or sustained by a well settled rule of the civil law, we do not feel called on to examine it further; but will content ourselves with saying, that it is adverse to the previous decisions of this court — (See Ricks vs. Dilla-hunty, 8 Porter, 000, and cases there cited.)
It was objected at the argument, by the defendant’s counsel, that under the pleadings, the plaintiff could not have been injured by the charge to the jury, however erroneous it may be in itself. We think otherwise: the first count in the declaration is well adapted to the facts disclosed in the bill of exceptions, and the instructions to the jury calculated to prevent a recovery,
The defendant’s counsel, upon the supposition that the opinion of the court might be against him, upon the .questions of law raised by the plaintiff, insists that the *109bill of exceptions was waived by the decision of the County court, on the plaintiff’s motion for anew trial.
In the first place, it may be remarked, that the record does not inform us for what cause the motion for a new trial was submitted to the County court, so that, for any thing appearing to the contrary, it may have been founded on causes entirely different from those embraced by the bill of exceptions. If such be the true state of fact, —and if necessary, we would intend it, — it was the duty of the County court to have entertained the motion for a new trial, without putting the plaintiff to elect the motion at the expense of waiving his exception.
But for the purpose of settling a question of practice, we will suppose that the grounds of exception, and motion for a new trial, were identical. It is said, that if a party is dissatisfied with a decision of a subordinate court, upon a point of law, he may ordinarily cause it to be reviewed in either one of two modes. 1st. He may move the court for a new trial; 2d. He may tender his bill of
exceptions, and thus put the question on record, in order that it may be examined on appeal or writ of error. But he should not, tinder ordinary circumstances, be allowed by the subordinate court to pursue both courses. If he relies on his motion for a new trial, then his objection does not appear on the record, and of course an appeal or writ of error would be of no avail. But if he have his bill of exceptions sealed, the court should not grant a new trial, on the ground stated in the bill of exceptions, for the question is then on the record, and the error, if any, may be corrected by an appellate court — (Fabrigas vs. Mastyn, 2 Wm, Bla. R. 929.) It has more recently been *110decided, that toe court will, in no case, grant a motion, for a new trial, when a bill of exceptions has been tendered, unless it be subsequently abandoned — (2 Chitty’s Rep. 272; S. P. Cogswell vs. Brown, 1 Mass. R. 237;) but in Reed vs. Miller, (1 Bibb’s R. 142,) it was determined, that the court have no right to require a party to withdraw his exception to their opinion, before they will entertain a motion for a new trial, presenting the same questions of law. And in Danham et al. vs. Baxter, (4 Mass. R. 79,) it was held, that the court will grant a new trial, without requiring the right of review to be waived, in a case where the court was of opinion, on the trial, from the facts shown by the plaintiff, that the law was such he could not recover, and stopped the examination of witnesses for the defendant on that ground; but the jury found a verdict for the plaintiff, against the direction of the judge.
A motion for a new trial addresses itself to the discretion of the court trying the cause, and is governed by the circumstances of the case, and those rules which have, from time to time, been adopted, as applicable to the subject. Following what we conceive to be the best established practice, we are of opinion, that the court trying the cause ought not to grant a new trial for the causes embraced by a bill of exceptions, unless the party submitting a motion distinctly waives the exception. If, however, the primary court make no such requisition of a party moving for a new trial, but allows his exception, and considers and overrules his motion for a new trial, the appellate court cannot refuse to consider the exceptions. This would be to interfere with the discretion of *111the primary court, or rather to determine, that it had been universally exercised, and was the subject of revi-sión — an assumption entirely indefensible.
The judgment of the County court must be reversed,, and the case remanded.