The consignees had no right to sell the goods below the price mentioned in their instructions from the consignor, without first calling on him for the reimbursement of their advances. As no such demand was made, the defendants are liable to an action, and must pay nominal damages, at the least. In settling the amount of damages in such cases, if there is no proof to the contrary, the price mentioned in the instructions should, I think, be deemed the true value of the goods. But the consignor would be at liberty to enhance the damages, by proving that the goods were worth more than the minimum price which he had put upon them; and I see no reason why the consignee should not be allowed to reduce the damages, by showing that the goods were of less value than the price mentioned in the instructions. If the goods were sold at their full value, the consignor has sustained no damage, and should recover only a nominal sum. The factor should be required to give strong proof for the purpose of showing the market value to be less than the instruction price; but he may, I think, give the proof, if he can. Clearly the consignor has sustained no damage beyond the difference between the actual value, and the price obtained on the sale; and I see no ground for making this case an exception to the general rule, which gives the injured *Page 87 party compensation for the pecuniary loss which he has sustained, and nothing more. In Frothingham v. Evertson, (12 N. Hamp. 239,) the court held, that the measure of damages in cases of this kind is, the amount of injury which the consignor has sustained by selling contrary to orders; and if there has been no actual loss, he will only be entitled to nominal damages. I think this a sound rule; and am not aware of any case which holds a different doctrine.
It is said, that this rule of damages will enable factors to violate the instructions of their principals with impunity. But that is a mistake. If they sell below the instruction price, though at the then market value, they will take the peril of a rise in the value of the goods at any time before an action is brought for the wrong; and, perhaps, down to the trial. The owner has a right to keep his goods for a better price; and if the market value advances after the wrongful sale, the increased price will form the standard for ascertaining his loss, which the factor, who has departed from instructions, must make good.
If it be a matter of any moment in this action, there is no room for doubt that the defendants, though they mistook the law, intended to act in entire good faith towards their principals. And if the evidence which they offered had been received, it would have appeared, that the plaintiff, instead of suffering loss, was benefited by the sale.
When the consignment is of articles which have no market value, such, for example, as antique paintings, statues or vases, the rule which has been mentioned will not apply. In this case, the goods had a market value, which could easily be ascertained.
I am of opinion that the court erred in rejecting evidence and in the rule which it gave concerning the measure of damages.
Judgment reversed. *Page 88