(dissenting).
I respectfully dissent from the conclusion and opinion of the Court. I agree that appellant, who seeks to compel the forfeiture of the deposit, has the burden of proving damages because of appellee’s default. I disagree, however, with the Court’s determination that appellant has not sustained this burden.
As the opinion recites, the defaulting purchaser’s bid for the four tracks was $48,200, $4,920 more than the $43,280 realized for them at the private sale. Nevertheless, instead of determining that appellant was damaged in the amount of $4,920, the opinion takes cognizance of the sale of a fifth truck for $8,000, and by adding this sum to the sale price of the four trucks, demonstrates that the sale brought $51,280. Since this sum exceeds the original bid of $48,200, it then concludes that appellant has not proved he sustained damages as a consequence of the default.
Such a conclusion is tenable only if the fifth truck was worth no more than $3,080. Such an assumption is unsupportable on this record, which requires a finding that the fifth truck was worth $8,000 unless we hold that the District Court utterly discredited the Marshal’s recital in his Return on Alias Fieri Fa-cias. In this Return the Marshal reported that, pursuant to the order of the Court, he summoned three disinterested appraisers (whom he named) and that they, upon oath and after actual view, appraised the four trucks at $11,000 each and the fifth truck (which had been stripped) at $8,000. Since the District Court has given no reason for denying the motion to forfeit the deposit, and since no other reason appears for discrediting the recited appraisal, appellant should be permitted to rely on the presumption of regularity attaching to the Marshal’s Return and should be found to have sustained his burden of proving damages.
If one wishes to indulge in speculation about undisclosed events, it is just as reasonable to surmise that both Amati and the LaPine Track joint venture (which made the second highest bid) overvalued the four trucks at the public auction sale. When Amati became aware of its error, it decided not to conclude the purchase. When the joint venture found out, it made a downward revision of its auction bid at the subsequent private sale and offered approximately the amount established as the fair value by the disinterested appraisers.
I agree that District Courts have wide discretion in their conduct of judicial sales, but this discretion may be abused. The District Court did not find that the private sale was collusive or fraudulent, and no other reason appears to explain the refusal to order forfeiture of the deposit. Its unexplained refusal is without support in the record and constitutes an abuse of discretion.