and note); and in our opinion there is no substantial reason for the distinction which some of the courts have made between those cases and libel or slander cases, in respect to the strength of mental conviction required to authorize a verdict sustaining the charge contained in the plea. Whether the charge is made in an action of the one kind or the other, the injury to the reputation, if the charge is sustained, must, in either case, be the same. And undoubtedly the decided weight of authority is opposed to such a distinction. In addition to the 647 authorities already cited, which hold that in this respect no exception exists in libel or slander cases to the general rule in civil actions, see Peoples v. Evening News Assn., 51 Mich. 11; Spruil v. Cooper, 16 Ala. 791; Bell v. McGinness, 40 Ohio St. 204; 48 Am. Rep. 673; Sloan v. Gilbert, 12 Bush, 51; 23 Am. Rep. 708; Downing v. Brown, 3 Col. 571; Kidd v. Fleek, 47 Wis. 443; Barfield v. Britt, 2 Jones, 41; 62 Am. Dec. 190; Kincaid v. Bradshaw, 3 Hawks, 63; McBee v. Fulton, 47 Md. 403; 28 Am. Rep. 465; Currier v. Richardson, 63 Vt. 617; Folsom v. Brawn, 25 N. H. 114; Baker v. Kansas City Times, 18 Am. Law Reg., N. S., 101.

Judgment reversed.

LIBEL JUSTIFICATION-DEGREE OF EVIDENCE NECESSARY TO PROVE.In an action for slander or libel by charging a crime, a plea of justification may be sustained by a preponderance of evidence; it is not necessary that it should be proved beyond a reasonable doubt: Sloan v. Gilbert, 12 Bush, 51; 23 Am. Rep. 708; McBee v. Fulton, 47 Md. 403; 28 Am. Rep. 465; Bell ▼. McGinness, 40 Ohio St. 204; 48 Am. Rep. 673, and note; Barfield v. Britt, 2 Jones, 41; 62 Am. Dec. 190. Where the defendant charges the plaintiff with a crime in an action of libel therefor, in order to justify such action the defendant must produce such evidence of the truth of the charge as would convict the plaintiff if he were on trial therefor: Fountain v. West, 23 Iowa, 9; 92 Am. Dec. 405, and note.

GREEN V. ANSLEY.

[92 GEORGIA, 647.]

SALES-REFUSAL TO COMPLY WITH BID-DAMAGES ON RESALE-To enable the owner of land to recover the difference between a purchaser's bid made at an auction sale of such land and the amount obtained on a resale thereof made necessary by the refusal of such purchaser to comply with his bid, it is necessary and essential that he be given notice, before the resale is made, of the intention to resell at his risk, and to hold him bound for any difference between his bid and the price obtained at the resale, but it is not necessary, in addition to this, that any direct notice should be given him of the time and place of the resale.

Hulsey & Bateman and W. C. Glenn, for the plaintiff in

error.

Candler & Thomson, for the defendant in error.

647 SIMMONS, J. Green was the highest bidder at a public auction of a house and lot offered for sale by Mrs. Ansley, and his bid was accepted, but after a delay of some weeks he 648 declined to take the property, and it was again put up at auction and was sold to another person. The price obtained at the second sale was considerably less than the amount bid at the first sale, and Mrs. Ansley brought this action against Green for the difference and for expenses, etc. The case came to this court upon exceptions to the sustaining of a demurrer to the declaration, and the judgment of the court below was reversed: Ansley v. Green, 82 Ga. 181. On the trial there was a verdict for the plaintiff, and the defendant moved for a new trial, which was refused, and he excepted.

The main question argued before us was whether the plaintiff was entitled to recover without proof of notice to the defendant of her intention to resell and of the time and place of the second sale. We think that, to authorize a recovery in this action, it was necessary that the defendant should be notified of the intention to resell at his risk and hold him bound for any difference between his bid and the price obtained at the resale, but it was not necessary, in addition to this, that any direct notice should be given him of the time and place of the sale. According to some of the authorities, the measure of damages where one refuses to accept land which he has contracted to buy is the difference between the contract price and the salable value at the time

the contract was broken; and this value may be conclusively established as against him by a resale, provided the vendor in reselling complies with the conditions the law imposes, as to diligence, etc. We think, however, that where a resale is resorted to in order to fix the measure of damages, the true test, if these conditions are complied with, is not the difference between the contract price and the value at the time of the breach, but the difference between that price and the price obtained at the resale, together with the expense incurred in reselling, without regard to what the value was at the time the contract 649 was broken. "The question is, How much worse [off] is the plaintiff by the diminution in value of the land, or the loss of the purchase money, in consequence of the nonperformance of the contract"? Wood's Mayne on Damages, 1st Am. ed., sec. 243. If the vendor elects to keep the land as his own when the purchaser refuses to accept he takes it at the market value at that time, and the difference between that value and the better price contracted for is the measure of his damage; but if he elects to treat the property as the purchaser's, and to sell on the latter's account in order to get his purchase money, the deficiency in the proceeds must be the measure of the loss. In an action based upon the difference between the market value at the time of the breach and the contract price the plaintiff, if he sees fit, may offer as evidence of that value the price obtained at a resale; and its admissibility and weight will depend upon the time and circumstances of the resale; but if the action is for the deficiency in the amount realized from the resale, the plaintiff must recover upon that basis alone, without regard to the market value at the time of the breach, and the amount obtained at the resale is either conclusive or else counts for nothing at all. The present action being upon the latter basis, and there being, moreover, no evidence of what the market value was at the time of the breach, and the price obtained at the resale being less, it seems, than the property would have brought at the time of the breach, the question of the market value at that time is not in the case; and the sole question to be considered is whether the plaintiff, in reselling, proceeded in such manner as to render the result of the resale legally binding upon the defendant. In order to conclude the defendant in this manner, not only must it appear that the resale was made without unreasonable delay, with the same publicity and as far

as possible under the same conditions as the first, and 650 with an honest effort to get the best price obtainable, but it nust appear also that the defendant had notice that the sale was to be at his risk. The property resold at his risk is regarded as in some sense his own, and the result of the resale is in the nature of an adjudication against him; and before he should be charged with the deficiency, he should be afforded an opportunity to protect his interest and prevent a sacrifice of the property. Unless notice is given him that the property is held and will be sold at his risk, he has a right to assume, if it is sold again, that the vendor elected to retain and deal with it as his own and at his own risk. On this subject, see 2 Sutherland on Damages, 2d ed., sec. 370, p. 1254; 2 Sedgwick on Damages, sec. 755; Tiedeman on Sales, 1st ed., sec. 334; Newmark on Sales, sec. 405, p. 596; Kempner v. Heidenheimer, 65 Tex. 587; Leonard v. Portier, 15 S. W. Rep. 415 (Tex. App., Jan. 29, 1890), and other cases cited by these authorities. Some of these discuss the question of notice as applicable to sales of personalty, but the principle is applicable equally to sales of land: See Wood's Mayne on Damages, sec. 243. In some cases notice of the time and place of the resale has also been held necessary, but the authorities in the main agree that, where there is notice of the election to resell and hold the other party bound for the deficiency, no further notice is necessary: See authorities cited supra; also Lewis v. Greider, 49 Barb. 606, affirmed 51 N. Y. 236; and Pollen v. Le Roy, 30 N. Y. 549; overruling on this point McEachron v. Randalls, 34 Barb. 301. We are satisfied, at least, that such additional notice may be dispensed with where, as in this case, the resale, as well as the original sale, is at public auction, duly advertised in the locality of the sale. In such case the party sought to be charged with the deficiency is sufficiently protected by the requirement already referred to, that the second sale shall take place within a reasonable time and be given equal publicity 651 with the first. If this is done, one who has been notified of the intention to resell at his risk need have no difficulty in ascertaining the time and place of the sale. The declaration in the present case alleges notice both of the election to resell at the defendant's risk and of the time and place of sale, but there is no evidence to sustain this allegation, and the court in charging the jury failed to instruct them on the

subject. It follows from what has been said that a new trial should be granted.

Judgment reversed.

AUCTIONS-REMedy Where Bidder REFUSES TO COMPLY WITH BID.— Where a bidder to whom property, real or personal, has been sold at auction refuses to complete his purchase the remedy is usually by a resale of the property, and an action against him for any deficiency which arises thereupon, and for the costs of the resale, and such resale must be had after proper notice and not after the bidders have departed: Note to Thomas v. Kerr, 96 Am. Dec. 266; Ansley v. Green, 82 Ga. 181.

CHEENEY V. OCEAN STEAMSHIP COMPANY.

[92 GEORGIA, 726.]

MASTER AND SErvant-Duty of Master to Supply Enough SERVANTS TO DO WORK SAFELY.-The master must make reasonable provision to protect his servant against dangers to which he is exposed while conducting the work he is employed to do, and the master must also supply a sufficient number of servants to effect the work with reasonable and ordinary safety to those engaged in performing it, and, if the prox. imate cause of an injury sustained by the servant while so engaged is the failure of the master to exercise ordinary prudence in this respect, the master is liable, unless the servant may fairly be regarded as having assumed the risk incident thereto.

MASTER AND Servant-Duty of Master TO CARE FOR SAFETY OF SERV. ANT.-If it is necessary to the safety of laborers employed in loading the hold of a ship that a hatchtender be stationed at the hatchway to signal them when freight is about to be thrown into the hold, it is the duty of the shipowner to supply a person to be stationed at such hatch. way, and a failure so to do is negligence.

MASTER AND Servant—Vice-pRINCIPAL.—A superintendent of the work of loading cotton in the hold of a ship, by throwing it in through the hatchway, is not a fellow-servant with the laborers in the hold, if he represents the shipowner in the duty of hiring and furnishing a suffi. cient supply of employees to accomplish the work with reasonable safety to those working in the hold.

MASTER AND SErvant—Vice-pRINCIPALS.—The acts of a person authorized by the master to perform a duty which the master owes to his servant, in so far as they pertain to that duty, are the acts of the master, and, when the servant is injured by reason of a failure to perform it, the master cannot escape liability by setting up that the duty devolved upon a fellow-servant of the person injured.

MASTER AND SERVANT-RISKS ASSUMED-PROMISE TO REMOVE Danger.— If a servant, having a right to abandon the service as dangerous, refrains from doing so in consequence of assurances that the dangers shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he AM. ST. REP., VOL. XL.V.-8