dissenting.
I dissent. The original contract price of the land here in question was $60,000. When the original buyer refused to complete the contract and rejected the deed tendered at the time of closing, the seller sold the property to a third party for $54,000. The seller then instituted this action in assumpsit to recover the balance of the purchase price from the original, defaulting buyer.
I cannot agree with the majority that a provision in an agreement for sale of real estate allowing the seller to retain sums paid, here $100.00, “either on account of the purchase money, or as compensation for the damages and expenses he has been put to in this behalf” precludes this action by the seller to recover the balance of the agreed-to purchase price he was unable to obtain upon resale necessitated by the original buyer’s breach. I find the seller’s course of action entirely proper under the terms of the agreement for sale.
The seller, had he not sold the property to a third party, could have sued the buyer for the full purchase price of $60,000, transferring the deed to the buyer and crediting the buyer with the retained $100.00 down payment. See Trachtenburg v. Sibarco Stations, Inc., All Pa. 517, 384 A.2d 1209 (1978). I agree with the opinion of Judge Van Der Voort of the Superior Court that it is equally clear that the seller likewise sues the buyer for the “purchase money” when he resells the property after default and then sues to recover the balance of the originally agreed upon purchase price. In this situation also, the damages awarded, if any, must be offset by the $100.00 retained by the seller.
It is clear, however, that whether the seller obtains his full purchase price after sale to the buyer or to a third party, crediting of the $100.00 is “on account of the purchase money.” Indeed, in the seller’s letter of October 1, 1973, to *470the buyer, responding to the buyer’s letter stating his intent to breach, the seller indicated that if the buyer did breach, causing sale to a third party, the $100.00 already paid by the buyer on account would “be credited toward the purchase price.” This demonstrated an election by the seller to treat the $100.00 on “account of the purchase money” and not as “compensation for the damages and expenses he has been put to in this behalf.”
To interpret the agreement for sale to prevent recovery of the full purchase money after resale leads to unfair and economically unreasonable results. Absent clear, precise and unequivocal language to that effect, this Court should be loathe to hold that, to recover the full purchase money, a selling homeowner must hold onto his house, sue the breaching buyer for specific performance, wait until completion of the suit, obtain a court order directing specific performance, and hope that the defaulting buyer will be financially able to comply with the court order. I cannot find the language “on account of the purchase money, or as compensation for damages and expenses [the seller] has been put to in .this behalf” a plain, unambiguous and unequivocal indication that the parties intended to limit the seller’s remedy either to an action for specific performance or retention of .the down payment as liquidated damages. Where the parties elect not to use the commonly used precise terms “specific performance” and “liquidated damages,” this Court should not reach out to limit the remedies available at common law to a nondefaulting party to a real estate sale as though those terms were used.
The modern trend in damage law requires that a person aggrieved by a breach of contract must try to mitigate damages. E. g., Restatement of the Law of Contracts, § 336(1) (requiring mitigation of reasonably foreseeable damages). An aggrieved seller should mitigate by resale. Uniform Commercial Code — Sales, 12A P.S. § 2-706 (Aggrieved seller who, after buyer’s breach, resells goods in good faith and in a commercially reasonable manner may recover the difference between resale price and contract *471price); see Restatement of the Law of Contracts, § 336(1), and comment a. Here, at the time the buyer notified the seller of the decision to breach, the seller, in reliance upon the buyer’s agreement to buy the seller’s home, had already contracted to purchase another residence. After notice to the buyer, the seller properly moved quickly to mitigate damages caused by the buyer’s breach.
I therefore cannot agree with the majority that, under the terms of the written agreement, the seller was precluded from bringing this action to recover the full “purchase money.” I would affirm the order of the Superior Court reversing the order of the trial court and reinstating the complaint for proceedings on the merits of the seller’s action to recover the difference between resale price and contract price.
EAGEN, C. J., joins this dissenting opinion.