1818. GIRARD V. TAGGART administrators quantity of tea, which he had promised to take at a certain Philadelphia. price, and its amount was the difference between the price agreed on, and its value, when Taggart refused to take it. The defendants' counsel rely principally on the cases of Musand another sen v. Price, 4 East, 147. Dutton v. Solomonson, 3 Bos. & of TAGGART. Pull. 582, and Brooke v. White, 4 Bos. & Pull. 330. But those cases differ essentially from the present. The goods were sold and actually delivered upon agreements, that the purchasers should make payment in bills payable at a future day. The purchasers failed in delivering the bills, and the plaintiffs, before the expiration of the time which the bills would have had to run brought suit, not for damages for the breach of contract in not delivering the bills, but for the price of the goods; they declared on a general indebitatus assumpsit. This kind of action is founded on an implied assumption, and the Court decided, that the law would not imply an assumption against an express agreement. If the plaintiffs in those cases had waited till the expiration of the time allowed for the payment of the bills, indebitatus assumpsit would have lain; but not before. Now how do those decisions bear upon the case before us, in which the action is not indebitatus assumpsit but special, on the breach of contract? The defendants' have done all in their power to rescind the contract. On that ground the plaintiff meets them; he consents that they shall not take the goods, but insists on immediate satisfaction for the injury he has sustained. And in so doing he has favoured the defendants. It would have been worse for them, if at the end of 120 days they had had to pay the full price. When Taggart refused to accept the goods, the plaintiff might have kept them without a re-sale, and brought suit for the damage. But without a re-sale, it would have been difficult to ascertain the amount of damage. For this purpose, a re-sale has been the usual practice, and it was sanctioned by this Court, in the case of Adams, &c. v. Minick. The jury, however, were told, that they were not bound by this mode of estimation, if they could find another more agreeable to the truth. Upon the whole, not perceiving that the verdict was against law or justice, I am of opinion, that the rule to shew cause should be discharged. GIBSON J. Since the argument, I have reflected much on 1818. GIRARD v. TAGGART administrators the decision in Willing v. Rowland, which, I am well satisfied, ought not to stand. It was, in effect, a Nisi Prius de- Philadelphia. cision, with this difference, that all the Judges were present, and concurred: but that it was a hasty opinion, appears, not only from its having been delivered while a jury were in wait- and another ing at the bar, but also from the manuscript note of Chief Jus- of Taggart. tice M'KEAN; from which it seems the point was decided on ground, different from that on which it was argued by the counsel. Lea v. Yard, affords but little additional authority, as the point did not necessarily arise: for, although the auctioneer may not have an exclusive authority to collect, he has an undoubted authority to receive the price of the goods as the agent of the vendor; and hence, the same necessity, that his official bond be considered a security for whatever may pass through his hands in the usual course of his business. This case was affirmed in the high court of errors and appeals; but on what ground, we know not: in all probability, the present point was not considered. Then, authority being out of the way, there is nothing on which an argument can be rested. It never was the object of the legislature to create a monopoly of this sort of business, or vary the common law relation of buyer and seller; but only to collect a duty, and, at the same time, secure the seller from the misconduct of an agent, whom he is, in some measure, compelled to employ. What else can be inferred from the commission and bond of the auctioneer? An exclusive right to collect is not necessary to secure the duties to the state, or his commissions to the officer: the lien which he has by the common law, is amply sufficient for that. In the actual state of the auction. business, a contrary construction would lead to the most intolerable evils. Goods to the value of twenty times the amount of the auctioneer's bond, as was the case in this very instance, are put into his hands to be sold: can it be believed that the legislature ever intended the seller should trust to the auctioneer's solvency? We must first believe they intended to put an end to the auction business altogether. The extension of this mode of selling, unprecedented in former times, and the frequent instances of failure of those officers, to an amount that renders their bond unworthy of consideration as a security, would forbid any one of reasonable discretion, to trust to a responsibility so precarious. Had the decision of Willing v. Rowland, even been the deliberate VOL. V.-E 1818. v. and another administrators opinion of the Court, I would overrule it without hesitating: Philadelphia. for, however comparatively harmless the principle it conGIRARD tains might be, when applied to the state of things which exTAGGART isted when that case was decided, to apply it to the present state of things, would be certain ruin to every one compelled of TAGGART. by necessity, or induced by indiscretion, to send his goods to the auction room. Had the present prodigious extension of the auction business, presented itself to the mind of the Court, as a thing likely to take place; it cannot be doubted, but the decision would have been different. On the other point, I have no doubt. Where goods are sold and delivered on a credit, and the vendee has violated the contract only in one particular, the damages will be commensurate only with the actual breach. But the present is a very different case from that of a contract partly executed by the vendee, and broken only as to a condition incidental, or collateral, to the principal thing he was bound to perform. Here, the defendant rejected the contract in toto, and therefore, violated it in every part. The damages recovered, are not the price of the goods sold, but a compensation for the disaffirmance of the contract; and the difference on the resale, is merely the measure of the damages actually suffered. Properly speaking, the seller cannot recover the price, where he has retained the goods in consequence of the buyer's refusal to comply with any part of the contract: he recovers damages for the breach of a contract which was entirely executory when it was broken; and the breach, having put an end to every idea of further performance by either, is a violation of the contract in all its parts, for which the seller may recover whatever damages he can prove he has sustained. The buyer, after having disaffirmed the sale, as far as he could by acts of his own, must not be permitted to treat the contract as still existing for the purpose of being performed by him, specifically; but the seller may, if he please, consider it as existing only for the purpose of giving a remedy for its breach; and this he has here done, by retaining the goods, and going merely for the loss actually suffered, as ascertained by the difference of price on the re-sale. It is for the same reason that the vendee, when the purchase has been fraudulent on his part, is precluded from insisting on the terms of the credit: the law will not suffer him to avail him self of conditions dishonestly obtained; but the contract, for the purpose of compelling him to answer in damages, re- 1818. mains in full force. I am of opinion the plaintiff should Philadelphia. have judgment. GIRARD v. TAGGART DUNCAN J. delivered an opinion to the same effect, which and another has been mislaid. Motion for a new trial refused. administrators of TAGGART. DILLMAN and another against SCHULTZ. IN ERROR. 1819. Monday, January 4. two in debt on a bond, and turned as to BY the writ of error issued to the Court of Common If a copias Pleas of Lehigh county, it appeared, that this action was issue against brought by Schultz, the plaintiff below, by a capias ad respondendum, issued against Dillman and Jamison, as defend- one be taken, and non est inants, in an action of debt on bond. The sheriff returned the ventus be rewrit executed as to Jamison, and non est inventus as to Dill- the other, if man. The declaration was against Jamison alone, stating declare upon the plaintiff the capias against both the return of non est inventus as to the bond as Dillman, and that the bond on which the action was founded, the one only was executed by Jamison. The cause went to trial on the who is taken, plea of non est factum, and a verdict was had for the plaintiff. be taken of the Hallowell, for the plaintiffs in error, waved a bill of exceptions, which had been taken by the plaintiffs in the Court below, to the rejection of a deposition, but relied on the variance between the writ and the declaration as a material variance, and error. Kittera, contra, contended, that the defendant by pleading non est factum had waved the irregularity, if any existed, and that it was now too late to take the exception. the bond of advantage can variance only by demurrer; it is not error after verdict. Query, Wheriod, advan tage can be taken of such variance between the writ and declara ther at any pe tion? In Pennsyl being no outlawry in civil cases, the return of nonest inventus has same effect. The opinion of the Court was delivered by DUNCAN J. A capias ad respondendum in debt issued in pleading the against Dillman and Jamison, on which the sheriff returns non est inventus as to Dillman. The declaration is against 219 5 SR 35 2213 and another v. 1819. Jamison alone, stating the capias against both, the non est inPhiladelphia. ventus as to Dillman, and stating the bond on which the acDILLMAN tion is founded to have been executed by Jamison, who pleads non est factum, on which issue is joined, and a verdict SCHULTZ. for the plaintiff, and the error alleged is in this variance. The bill of exceptions on the rejection of a certain deposition is candidly given up by the counsel of the plaintiffs in error. So that the opinion of the Court is confined to the question of variance only. I do not know whether in any stage of an action, advantage could be taken of a variance between the writ and declaration, where the cause of action appeared to be the same. The cases are collected by Serjt. Williams, in his edition of Saunders, in the note to Redman v. Edolph, 1 Saund. 318, a, who says, it seems to follow from all the decisions, that no advantage can be taken of a defective original, or of a variance between the writ and the declaration. However this may be, it cannot be taken advantage of where the defendant pleads in bar to the declaration. Where an action is brought against one of several joint obligors, he can only take advantage of it by plea in abatement. 5 Rep. 119. Whelpdale's case. And though it appears by the record, that there were others who ought to be joined, yet that will not be error. In Pennsylvania there being no process of outlawry in civil actions, the return of non est inventus for all purposes of pleading has the same effect. The plaintiff has done all he can to bring into Court all the defendants, and he may, therefore, proceed against the one who has been arrested, stating in his declaration the writ and the return. But in such cases, the course is, to lay the promise to be made by both, and the bond to be executed by all. But if the defendant who is arrested, will not take advantage of this omission, to lay the promise or the bond by demurrer, but pleads non assumpsit, or non est factum, and goes on to trial, and verdict passes àgainst him, judgment will not, for that reason, be arrested. Stead v. Moon, Cro. Jac. 152. And in Whelpdale's case, this very case is put, “Where two men are jointly bound in a bond, although neither of them is bound by himself, yet neither of them can say, that the bond is not his deed; for he has sealed and delivered it; and each of them is bound in the whole. And therefore if they both are sued, and one appears, and the other makes default, and by process |