delivered the opinion of the court.
The errors complained of in this case are that the circuit court refused, first, to arrest the judgment; and second, to grant the defendant a new trial. The point raised by the motion in arrest of judgment is based upon the ground that “ the petition does not state facts sufficient to constitute a cause of action.” It is urged in objection to the petition, that, as the plaintiff has no interest in the trust debt, the injury complained of was not an injury to him, but to the trust creditors, and therefore that he does not show in himself a cause of action. The objection assumes what is far from being true, that the beneficial interest in a contract determines the question who is to sue for a breach of it. The law regards the person to whom a promise is made, and with whom it is to be performed, as the one having the legal interest in the contract; and, in actions ex contractu at common law, it is a fundamental rule of pleading that “ the action must be brought in the name of the party in whom the legal interest in such contract is vested,” without refer*539ence to who has the beneficial interest in the samé. (1 Chitty’s Pl. p. 2 & 3.)
This rule, in its application to cases like the present, is not thought to be changed by our statute relating to parties to actions. (R. C. 1855, p. 1217, § 2, art. 2.)
In the argument at bar, there was much discussion of the question whether the plaintiff, as to the damages sought to be recovered, is trustee for the trust creditors or for the trust debtors, or for either, or for both. If we are right in the view we have taken, it relieves us of the consideration of the question until the controversy shall arise between those who alone have an interest in its determination. It is enough that at law the defendant is answerable to the plaintiff, and to him only, for the alleged breach of contract. He has no more reason to be concerned about what may become of the damages that may be recovered than he should have had about what should have been done with the price bid for the land had he paid it. Another objection made to the petition is, that it does not aver any breach of the defendant’s contract; this is answered by a reference to the petition itself, where, after setting forth the contract of the defendant to pay $8,000 for the land, it is averred that “ the plaintiff demanded payment for the same, in accordance with his (defendant’s) said bid, which payment he refused to make, and also refused to accept the deed. This is sufficient averment of the breach, especially after verdict and judgment.
The third and last ground of objection to the petition is, that it does not appear that the contract for the sale of the land was in writing, and signed, as required by the statute of frauds. The petition distinctly avers such contract of the plaintiff to sell and of the defendant to buy the land as at common law would be binding, and' then ineffectually attempts to show its conformity to the requirements of the statute. If a compliance with the statute in making the contract was necessary to be shown, we should be obliged to hold the petition defective, but this is not necessary. If a contract is set up and relied upon, which is good at common *540law, but voidable only for nonconformity to the statute, this is ground of defence to be pleaded by him who would avoid the contract, and if not so pleaded the matter is waived. We do not wish to be understood as holding that the petition would not be open to objection if it appeared on the face of it affirmatively that there was not a compliance with the statute; but that, as in this, where a contract good at common law is shown, but an omission merely to show the statutory requirements, the petition is good. This disposes of the motion in arrest of judgment.
The propriety or impropriety of the action of the circuit court, in refusing the defendant a new trial, is determined by the consideration of the instruction asked by the defendant, but refused by the court, and of the question whether the damages were excessive. The instruction asked the court to say that, “ upon all the evidence in this case, the plaintiff is not entitled to recover,” and was, in effect, a demurrer to the evidence. None of the allegations of the petition are denied by the answer, and, therefore, stand admitted, except those relating to the length of the notice of sale, and the tender of the deed from plaintiff to defendant. The defendant, by way of excuse for not keeping his contract, charged, in his answer, that certain false representations, in regard to the condition of the houses, and fencing on the land, were made by the auctioneer at the time of the sale, and also, that after the sale he discovered the plaintiff had no title. On the trial, the plaintiff proved the giving of the notice and tender of the deed, as charged in the petition, and also complete title in the lands. The defendant offered no evidence. In this state of the case, the instruction was asked.
If the sustaining of every issue resting upon the plaintiff, by legal and competent evidence, entitled him to a recovery, the instruction was properly overuled.
Next, as to whether the damages were excessive. That a vendor of land, on failure of a purchaser to pay, may re-sell and recover damages for the breach of the first contract, is *541well settled; and, although the difference in price between the first and second sales is not conclusive, yet, according to the authorities, it affords a good criterion of the damages actually sustained. If this rule has a just application in any case it is in this; for the frame of the pleadings is such as to relieve the court of the embarrassment usually experienced in finding the facts from which the damages result, and places it beyond all cavil that, in this instance, the plaintiff’s damages are the difference between the price at the two sales. It is averred in the petition, and not denied in the answer, and therefore admitted, “ that, at the first sale, there were other and responsible persons present who desired to purchase the property, and would have paid for the same as much ($8,000) as was bid by the defendant, but for the misconduct of the defendant.” And that, at the second sale, “ although all legal and proper means were used to effect a sale at the highest price, yet plaintiff could only obtain $4,-500 for the property.”
The court could not have given less, but might have given greater damages. The motion for a new trial was'properly overruled.
The other judges concurring,the judgment is affirmed, with ten per cent, damages.