The judgment of the court (Euslis, C. J., absent,) was pronounced by
Preston, J,The plaintiff sues the defendants for a quantity of coal and damages. He alleges that the coal belonged to him, and was seized as the property of one Fields.
It is fully proved that the plaintiff purchased the coal from Capt. Doane, at four dollars a ton. But he sold it to Fields for five dollars a ton, who advertised it for sale, and commenced retailing it. Fields proves, that he was to pay cash on the delivery. He did not pay the cash, and, therefore, the conditions of the sale were not complied with, still it was a sale, and Fields could have been forced to comply with the conditions. His judgment creditors had a right to seize the coal, for it might have sold for an advance. Fields did not comply with the sale, because the coal was seized, and would have complied but for the seizure. Then the plaintiff sold his coal to a man, who refused to comply with his contract, because the property was seized for his debts. That was his misfortune, and entitled him to a rescisión of the sale for non-payment of the price by his vendee, and damages from him. He was entitled to obtain the rescisión by suit, but all parties appear to have consented, in effect, to an amicable rescisión. The plaintiff preferred it to allowing the property to be sold, judicially, and claiming the vendor’s privilege. He, no doubt, acted wisely, but thereby waived all claim for damages for non-compliance with the terms of his sale.
*25It is not shown that the defendants offered any obstacle to the plaintiff, when he claimed the coal, having learned that he received nothing, on account of the price, from his vendee. The coal was seized the- 12th, and released, by bond, the 16th of December. It is difficult to believe, that the plaintiff suffered two hundred dollars damages by that short detention. The defendant, by his answer, in effect, yielded to the release of the seizure. The evidence also justifies the inference that Batson allowed Field, without objection, to make partial sales and delivery of the coal, and Ricks may thus have been mislead, when he made the seizure.
If he suffered any damages, they were not immediate, but only consequential from the seizure. The damages arose from selling to a vendee, liable to an execution, and the failure of thatvendee to pay the price of the purchase. If he had paid the price according to his purchase, the plaintiff would have suffered
The judgment of the district court, so far as it decrees the restoration of the coal, be affirmed, with costs. It is further ordered and decreed, that said judgment be reversed as to the damages allowed, and the appellee condemned to pay the costs of appeal.