Meyer v. McAllister

[17]

CONREY, P. J.

In this action plaintiff seeks to recover damages in the sum of $1,345 incurred by defendant’s breach of a contract made with plaintiff’s assignor, wherein the defendant agreed to purchase from the vendor certain machinery at the agreed price of $2,145. Judgment was awarded in the sum of $429, and the plaintiff appeals from the judgment, as well as from an order denying his motion for a new trial.

As both parties assume, in accordance with the record, that there was a contract and that there was a breach thereof by the defendant, the only questions presented on appeal relate to the plaintiff’s claim that the evidence is insufficient to sustain the finding limiting plaintiff’s damages to the amount named in said judgment; and incidentally to the claim that the court erred in receiving certain evidence offered by the defendant concerning the value of the property described in the contract.

After the vendor had, as required by the terms of the contract, shipped the machinery to Chino, California, and the defendant had further confirmed his refusal to accept the same, the vendor made some efforts to sell the property at and in the vicinity of Chino and finally, at a time within two months after the shipment had been made, sold said property publicly for eight hundred dollars, which was the highest and best bid made at that time. The representative of the vendor who made the sale testified to his efforts with respect to making a sale and that he could not get any higher bid.

The sale was made without actual notice thereof to the defendant. Therefore, the amount received at the sale is not conclusive evidence of value by which to measure the damages for which the defendant is liable. For the same reason (and also because title had not passed from the vendor), the first subdivision of section 3311 of the Civil Code is not applicable to the case. The detriment caused to the vendor by the defendant’s breach of his agreement is to be measured by subdivision 2 of said section 3311, and in the present case consists in the excess, if any, of the amount due from the buyer under the contract over the value to the seller. (See, also, Civ. Code, see. 3353.) In offering the above mentioned evidence the plaintiff was seeking to prove “the value to the seller,” and was proceeding upon the theory that the value