#### Fifth Bluecher Building Association *v.*Frederick Sylvester, Appellant.

*Vendor and vendee*— Contract—Sale *of land*— Breach *of contract*— Re*sale*— Measure *of damages.*

In an action to recover damages for the nonperformance by the vendee of a parol contract for the sale of lands at public auction, the measure of damages is the difference between the price brought at the original sale, and the price brought at a resale at public auction after full notice to the public and the vendee, upon the same or as advantageous terms as the first sale. Bowser v. Cessna, 62 Pa. 148, followed.

Argued Oct. 18, 1907.

Appeal, No. 21, Oct. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1906, No. 3,268, on verdict for plaintiff in case of Fifth Bluecher Building Association v. Frederick Sylvester.

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.

Affirmed.

*63Assumpsit to recover damages for the nonperformance of a parol contract for the sale of lands.

Martin, P. J., charged as follows:

In this case the plaintiff put up at auction the property 2018 Arch street. When it was offered for sale by the auctioneers, the defendant bid $7,000 and it was knocked down to him. In the book offered in evidence, it seems that a stipulation that the sale is subject to the terms of sale as presented on one of the pages of the catalogue was signed “Frederick Sylvester, Attorney.” There is nothing to disclose for whom he was acting and, therefore, until there is some evidence to the contrary he is personally responsible for his acts. An agent for an undisclosed principal is hable individually until his principal is disclosed.

Upon examination of the page of the catalogue referred to in the salesbook, there appears a condition that “In addition to any other remedies given by law to the seller, it is agreed that: In case of failure by the purchasers to comply with the terms of the sale the seller shall have the option of declaring the sale off and retaining the deposit money on account of liquidating damages for the default, or reselling the property at the expense and risk of the purchasers and of retaining said deposit money on account of any loss that may be occasioned thereby.”

It has been testified that subsequently to the date of the sale, someone acting for the plaintiff visited Mr. Sylvester with a deed executed and ready for delivery and demanded the balance of the purchase money. He declined to accept the property and said his client would not comply with the terms of the sale. After notice to Mr. Sylvester the property was sold again. At the second sale, on January 31, 1906, it brought $6,300, which was $700 less than the price bid at the first sale.

Mr. Sylvester has paid to the auctioneers $100. A settlement was made between the plaintiff and the auctioneers, whereby the building association got the benefit of the $100.

[If you find that Mr. Sylvester agreed to purchase this property at a price of $7,000 and failed to comply with his agree*64ment to take the property, and that the property was subsequently sold, upon the same terms and conditions, and brought but $6,300, then you will be justified in rendering a. verdict against him for the loss which the building association was subjected to by reason of a resale.] [1]

November 18, 1907:

Verdict and judgment for plaintiff for $630. Defendant appealed.

*Error assigned*was portion of charge as above, quoting it.

*E. Cooper Shapley,*for appellant.

— The trend of the later decisions is to follow the rule that on any parol contract for the sale of land, all that can be recovered is the actual damage and not damages for the loss of the bargain, because to allow otherwise would be to allow all the pecuniary advantages to be derived from specific performance of the contract. In other words, that it is inconsistent to hold that the vendor cannot recover in a suit for the purchase money, but that he can recover what is the same thing by first taking part of the purchase money from a third party and then recover the rest of it from the first vendee: Carner v. Peters, 9 Pa. Superior Ct. 29.

Unless the same rule prevails in cases of real estate as in cases of chattels, then Bowser v. Cessna ought to be distinguished from cases' of parol agreements for the sale of real estate, where there is no other evidence than of the sale by parol, and of a breach. Certainly, the same rule does not apply as in cases of chattels: Rineer v. Collins, 156 Pa. 342; Eberz v. Heisler, 12 Pa. Superior Ct. 388; Walter v. Transue, 17 Pa. Superior Ct. 94; Huffman v. Bradshaw, 17 Pa. Superior Ct. 205..

*James H. Wolf,*for appellee.

— The case is ruled by Bowser v. Cessna, 62 Pa. 148.

Per Curiam,

The facts of this case are clearly and concisely stated in the charge of the learned trial judge, and need not be restated. The general question is, what is the measure of damages in an action to recover damages for the nonperformance by the ven*65dee of a parol contract for the sale of lands at public auction? In the statement of the question we have spoken of the sale as a parol sale, by which is meant that while the vendee signed the memorandum in the auctioneer’s book, no written memorandum of any ldnd was signed by the vendor. The plaintiff was allowed to recover the difference of price on a resale. The resale, it is to be noticed, was within about nine weeks after the first sale, and, according to the implied finding of the jury, upon the same terms and conditions. There was no unreasonable delay while the land was falling in market value, and no evidence which would prevent the application of this measure of damages, if it is ever applicable to a parol contract for the sale of real estate at auction. On the contrary, the facts are undisputed that the resale was a public one, fairly conducted, after full notice to the public and the vendee, upon the same or as advantageous terms as the first; in short, that it was bona fide. Upon such a state of facts it was distinctly decided in Bowser v. Cessna, 62 Pa. 148, that the measure of damages is the difference of price on the resale. We see no ground upon which this case can be ruled differently if that decision is still authoritative. It is very earnestly urged by the appellant’s counsel that the trend of later decisions is towards abolishment of the distinction between public and private sales, and establishment of the rule that on any parol contract for the sale of land all that can be recovered is the actual damage, and not damages for the loss of the bargain. But the case of Bowser v. Cessna has been recognized in several late decisions, amongst which may be mentioned Pepper v. Deakyne, 212 Pa. 181, wherein it was distinctly declared upon the authority of that case that a defaulting bidder is hable for the loss occasioned by his failure to comply with the terms of sale, and 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. Notwithstanding the earnest argument of the appellant’s counsel we cannot regard the question raised by this appeal as an open one, but must regard Bowser v. Cessna as authoritatively determining it against his contention.

The judgment is affirmed.