Kempner v. Heidenheimer , 65 Tex. 587 ( 1886 )

Robertson, Associate Justice.

The measure of damages for breach of contract of sale of land by the purchaser, is the difference between the contract price and the salable value. This value may be fixed by a fair resale, after notice to the party, to be bound by the price as the value, within a reasonable time after the breach. What is a reasonable time is a question of fact, varied by the circumstances of each case. The lapse of snch period as would give room for fluctuations in the market in the ususal order of things, or of such as would authorize the inference that the vendor had elected not to adopt this means of fixing the measure of liability, would be unreasonable. 2 Suth. on Damages, 195, et .seq. To be bound by the price, the defendant should have notice of the sale. The sale is, in some sense, a sale of his property to pay his debt, and, to protect his interest, he is entitled to notice. Bowser v. Cessna, 62 Penn. St. 148.

The sale to Hughes was made, without' notice to defendant, pri-' vately, seven months after the defendant’s breach. We think the court below did. not err in holding that the defendant was not bound by that sale. In view of the time and manner of the sale, the price realized was not the fixed salable value of the property, but, with its attending circumstances, was merely evidence of such value, to be considered by the trial court in connection with the other evidence bearing upon the point.

Hot making such sale as was authorized by the defendant’s breach, the plaintiff was only entitled to recover the difference between the market value at the date of defendant’s breach and the price defendant had agreed to pay. It was the duty of the plaintiff to establish these factors in the measure of his damage. The only proof he offered of the market value was that, without advertisement or the use of any professional agency, whilst his suit for specific performance was pending, he sounded such men as he came in contact with, and realized, in the trade with Hughes, the earliest and best price that was possible. The property was not fairly upon the market. There was proof that at the time of the defendant’s refusal to perform, the property was considered of greater value than $50,000. If there was no sufficient evidence that the market value at that time was not equal to the contract price, .there was none establishing a difference, or what the difference was. The plaintiff failed to make out his case for any greater recovery than that awarded in the judgment; and if we sat as a trial court, we cannot perceive in the testimony the supports for a different judgment than that rendered by the court below. The efforts made by plaintiff to sell the property, inconsistently with the objects of the suit then pending, and the sale to Hughes, if all the other testimony is discarded, do not show prima facie, or with any degree of certainty requisite to judicial action, that the market value was less than the contract price.

There is no error in the record, and the judgment is accordingly affirmed.

Affirmed.

[Opinion delivered March 5, 1886.]