Pepper v. Deakyne , 212 Pa. 181 ( 1905 )

Opinion by

Mb. Chief Justice Mitchell,

Passing b}r some preliminary questions as to the authority of the court to appoint the auditor, and the jurisdiction of the latter to distribute a fund paid on a previous sale, on a different writ and apparently to a different sheriff, the substantial question is whether there was such a variation in the terms of sale, to the disadvantage of appellant, a defaulting purchaser, as released his hand money already paid to the sheriff and discharged him from further liability on his bid.

A defaulting bidder is liable for the loss occasioned by his failure to comply with the terms of the sale, and it is equally well settled that the measure of damages is the difference of price on a resale fairly conducted upon terms not less advantageous to the purchaser than the first: Bowser v. Cessna, 62 Pa. 148. That was not the case of a sheriff’s sale, but the same rule applies as will appear later on.

The point has been frequently before this court, and the law laid down ivithout substantial variation. It is fully and accurately stated by the late Chief Justice Stebbett in Hare v. Bedell, 98 Pa. 485, as follows: “It is very clear that a defaulting purchaser at sheriff’s sale is not liable to respond in damages for loss on resale of the property, if it appears that under the first sale he would have acquired a more valuable title than that which passed to the purchaser at the last sale, or that the terms of the first sale were more advantageous to the purchaser than those of the resale. The obvious reason of this is, that the inferior quality of title or the less advantageous terms of sale, would naturally effect a reduction of price, and we would be left without any reliable standard by which to measure the loss sustained by the refusal of the purchaser at the first sale to malee good his bid.”

The same rule was expressed previously in Freeman v. Husband, 77 Pa. 389, where it was said: “ If the terms were materially altered upon the resale he (the purchaser) was thereby released ; for he cannot be held to conditions that did not form part of his contract.”

In the. last case the change in the terms of sale was made by the sheriff on his own motion or at the instance of the plaintiff, and it is argued' that a change by order of the court should stand on a different footing. But on the reason of the rule as declared in the opinions above cited, that the release of the purchaser is because of the change of the conditions of his contract, it can make no logical difference whether the change was by act of the sheriff, the plaintiff or the court. The more onerous conditions tend to lessen the price likely to be bid at the second sale, and thereby render inapplicable the settled measure of damages. And it is expressly so held in Weast v. Derrick, 100 Pa. 509, where it is said: “ Sales, public or private, are precisely what the contract of the parties make them, and a sale in pursuance of an order of the court is governed by the prescribed terms, the same as the accepted terms of a sale made without judicial order. When the resale is for a less price, upon other terms than the first, the vendor cannot compel the first purchaser to make good the loss. The basis is shifted. To refer such a case to the jury, Would introduce an uncertain measure of damages, whereas the only measure is the difference between the price of the first and second sale. . . . The fact that the court prescribed the terms of the second has no bearing upon the question at issue. Those terms were made upon the plaintiff’s motion, but no matter how made, it is-essential to his case that the second sale was not loaded with heavier terms than the first.”

This rule has been followed in Ramsay v. Hersker, 153 Pa. 480, and Connell v. Shryock, 167 Pa. 483, and must be accepted as the settled law.

The only case in conflict Avith this principle is Singerly v. Swain’s Admrs., 33 Pa. 102. That was a sale under order of the orphans’ court, and the change in the terms was made by the court after two defaults by the same purchaser, the plaintiff in error. The court, after referring to its recent consideration of the nature of orphans’ court sales with reference to the power and duty to prescribe terms, said: “ When Mr. Singerly tAvice purchased this property and refused to comply, he was bound to take notice that the orphans’ court had power to alter the terms of the next sale. He ran the risk of a change of terms that would depress the price.” Sales under orders of the orphans’ court differ materially from other judicial sales in that they are subject not merely to the legal jurisdiction of the court but also to its discretionary approval, and are not complete until confirmation. Whether this is a sufficient foundation for a different rule as to the responsibility of a purchaser may be left to decision when the question shall arise directly. But as to ordinary sheriff’s or other sales it is clear that they belong to the class of legal problems in which to have a fixed rule by which all parties may clearly and readily know their rights and responsibilities, is more important than the theoretical perfection of the rule itself.

On the conceded facts the appellant was entitled to the return of his deposit money, less the proper charges and expenses of the sale in which such deposit was made.

Decree reversed at the costs of the appellee.