Phillips v. Stark

OLNEY, J.

This is an appeal by the plaintiff from a judgment of nonsuit. The plaintiff’s evidence was in substantial accord with the allegations of his complaint and was to the following effect:

The plaintiff was the owner of a bakery and sold it to the defendants for the price of ten thousand dollars. The defendants at the time gave the plaintiff a cheek for five hundred dollars on account, agreed to pay the balance the next day, and received immediate possession. The next day the plaintiff called upon the defendants to obtain the balance of nine thousand five hundred dollars, and in the course of the interview was tricked into giving them temporary possession of the cheek for five hundred dollars. As soon as they got the check, the defendants tore it up, refused to pay anything on the purchase price, and told the plaintiff that the sale was off, that they would have nothing to do with the property, and he could do with it as he pleased. The defendants then abandoned the bakery, and the plaintiff retook possession and sold it at public auction, but without giving the notice to the defendants required by the code for a sale in enforcement of a vendor’s lien. (Civ. Code, secs. 3049, 3002.) Upon these facts the plaintiff sought to recover the difference between the contract price of ten thousand dollars and the amount realized on the auction sale, some six thousand dollars.

[1]

The delivery of possession to the defendants, of course, operated to pass title, there being nothing to indicate a contrary intent. The case was, then, one where the vendees of personal property, the title to which had vested in them, refused to pay for the property. It, therefore, came directly within the language of section 3310 of the Civil Code, providing that where the title to personal property has passed to a vendee, the detriment caused by his refusal to pay for the property is deemed to be the contract price. Because the case does come within this code section, and because the plaintiff sued, not for the contract price, but for the difference between it and the sum realized on the auction sale, it is claimed that the plaintiff has elected to pursue a remedy to which he is not entitled. Upon this ground the nonsuit was asked and granted.

[371]

But a consideration of the case and of the code section shows immediately two things: first, that a contract of sale was made and broken by the defendants and that, therefore, the plaintiff has a cause of action for damages against them unless in some way he has lost it, and, second, that the code section is not dealing with the remedy, using the word in its true sense, to which the vendor may be entitled, but with the measure of the damages to which he is entitled, if he is entitled to the remedy of damages. There is, of course, a marked difference between a plaintiff being entitled to a certain measure of damages and his being entitled to damages at all. It is very possible for a party.to a contract broken by the other party to it to make such an election of remedies as to preclude him from thereafter seeking and obtaining the remedy of damages, but if he has not made such an election and is entitled to damages, the fact that he seeks damages according to a wrong measure is almost wholly inconsequential and does not preclude the court from according him the damages. to which he is entitled according to their true measure. This is clearly evident in the present case when we consider that the defendants’ contention, as they put it, really amounts to but this, that the plaintiff should have sued them for ten thousand dollars, the contract price, instead of for but four thousand dollars, the difference between the contract price and the sum realized from the auction sale. The defendants certainly cannot complain because they have been sued for too little, and the plaintiff should certainly not be nonsuited upon any such ground.