WEBSTER AND FORD
v.
HOBAN.
Supreme Court of United States.
February 24, 1813. March 3, 1813.Present ... . All the Judges except TODD, J.
*400 JONES, for the Plaintiffs in error.
*401 LIVINGSTON, J. delivered the opinion of the Court as follows:
If there ever existed a valid agreement between these parties in relation to the house in question, on which the Court gives no opinion, the terms of it must be sought for in the articles exhibited by the auctioneer, at the thne of sale. Of these, two only bear on this case. These were, "that the purchaser should secure the purchase "money with interest by his promissory notes, "with two approved indorsers, payable in 6 and 12 "months" and "that the purchaser should be allowed "thirty days to comply with these terms, at which "time, in case of compliance, he was to receive a good "and complete title to the property, and on failing to "comply within the thirty days, the property was then "to bere-sold on account of the first purchaser."
The Plaintiffs offered no evidence of any re-sale, or of any deficiency arising thereon, but contended, that the remedy by a re-sale was merely cumulative, and did not take away the right of action against the Defendant, for his violation of the contract. Such is not the opinion of this Court. The vendee, by the terms of sale. had an option of taking the estate after it was bid off to him, and in case of refusal, of having it sold again *402 on his account It might have produced more than on the first sale, in which case the surplus would have belonged to him; or the same price might have been obtained, and then he would have lost nothing or it might have sold for less, and then by paying the difference which would have formed his whole loss, he would not have been exposed, as he must be, if this action proceeds to have damages assessed against him, by some uncertain and arbitrary or unsatisfactory rule, which might be adopted by a jury. Of these advantages which were reserved to him by the terms of the auction, the Plaintiff had no right to deprive him. The Court is further of opinion, that nothing which was done after the sale, at all varied the right of the parties. The judgment below is affirmed with costs.