4 Cal. 411
LEONIDAS HASKELL, Respondent,
v.
JOHN McHENRY, Appellant
Supreme Court of California
October, 1854
Appeal from the Superior Court of the City of San Francisco.
JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred.
OPINION
HEYDENFELDT, Judge
The contract declared on was an entirety. The first breach by the defendant was a breach of the whole, and discharged the plaintiff from the performance of any conditions on his part. It gave him a complete right of action.
The rule of damages was properly decided, although the Court committed an error in instructing the jury that it was the difference between the contract price and the proceeds of the sale at auction. The true rule is the difference between the contract price and the market value, at the time of the breach, and so the Court afterwards charged. But the error, if not relieved by the subsequent instruction, has done no injury, as the evidence, without dispute, establishes that the price at the auction sale was the fair market value.
Judgment affirmed.