W. Comer Petheram, C.J. and Prinsep, J.
1. My answers to the questions are:
1. The plaintiffs cannot on the plaint before the Court recover the loss alleged by them to have been sustained at the sale held on the 25th July.
2. In an action properly framed the amount of damages would not be limited to the expenses incurred at the sale.
3. In an action properly framed the plaintiffs would not be prevented from recovering damages because they only professed to sell 13 out of the 15 bales.
2. The ease has been entirely misunderstood, and neither of the questions proposed really arises in it at all.
3. The contract was for the sale of 15 bales of grey shirtings, and would have been satisfied by the delivery of any 15 bales which answer to the description in the contract.
4. It is found by the Judge that the 15 bales which were tendered by the plaintiffs did answer the description, but as they were at once refused by the defendants and. were never take a by them into their possession, the property in the goods never passed to the purchasers but remained in the vendors in the same way that it was vested in them before the tender. The case is the simple one of a breach of a contract to accept and pay for goods sold by description at an agreed price in which the measure of the damage is the difference between the contract price and the market price at the time of the breach. As the property in the goods remained in the vendors that which took place at the sale had no effect whatever, as the plaintiffs were merely offering their own goods for sale, and when they were knocked down at their bid, they only bought in their own goods. To such a case as this neither Section 107 of the Contract Act nor the proviso for re-sale in the contract itself can have any application, as no such power is required to enable a man to sell his own goods. Such powers are required when the property in the goods has passed to the purchaser subject to the lien of the vendor for the unpaid purchase money, and it is to that class of cases that both the proviso and the Section apply.
5. In the present ease the right of the plaintiff was to recover the difference, if any, between the contract price and the market price at the time of the refusal. No such case was made in the plaint or at the hearing, and there is no evidence of the market price unless the fact that a certain price was obtained at the auction can be so treated, but, as Mr. Hill pointed out, that cannot be, as it was not tendered for that purpose and no question as to the market rate was raised.
6. The proper course in this case would have been to amend the plaint by adding an averment that the market price at the time of the breach was less than the contract price, and by adding a claim for damages on that basis. Then at the trial evidence might have been given of what the market price was at the time when the goods were refused, and the judgment should have been for the difference if any was shown to have existed.
7. I agree.