unless the company alleges and proves that a less amount would have been paid in by the policy-holders. (^) In O'Brien v. Home Benefit Society,() Earl, J., said : "The plaintiff was entitled to recover something, and what was the measure of his damages? Just what he lost by the defendant's breach of its contract. He was entitled to have an assessment made and collected, and the proceeds thereof paid to him. What was the contract worth to him, and what would the assessment have produced for him? It was incumbent upon the plaintiff to give evidence which would enable the jury to answer these questions. As the assessment was not made, it was impossible for the plaintiff to show accurately or precisely what such an assessment would have produced. He was bound to give such evidence as the nature of the case permitted bearing upon the matter of damages, and legitimately tending to prove their amount." The reason for allowing the plaintiff to recover substantial damages is that, although it is not in his power to establish what would have been paid in, the presumption is, nothing appearing to the contrary, that the money would have been collected. (^) Lueders v. Hartford L. I. Co., 4 McCr. 149; Lawler v. Murphy, 58 Conn. 294; Covenant M. B. Assoc. v. Hoffman, 110 Ill. 603; Elkhart M. A. Assoc. v. Houghton, 103 Ind. 286; Kansas Protective Union v. Whitt, 36 Kas. 760; Burland v. Mutual Benefit Assoc., 47 Mich. 424; Bentz v. Northwestern Aid Assoc., 40 Minn. 202; Taylor v. National Temperance R. Union, 94 Mo. 35; O'Brien v. Home Benefit Society, 117 N. Y. 310; Freeman v. National Benefit Society, 42 Hun 252. Contra, that only nominal damages can be recovered: Newman v. Covenant Mutual Benefit Association, 72 la. 242. () 117 N. Y. 310, 319. CHAPTER XXV. MEASURE OF DAMAGES IN ACTIONS ARISING OUT OF SALES OF PERSONAL PROPERTY. § 733. Introductory. 734. General rule, 1.-BREACH BY VENDOR. 735. Reason for it generally given 736. Failure to deliver stock. 738. Place where market value is to 739. Nearest market. § 742. Consequential loss. 744. Payment in advance. 746. The rule disapproved in other 747. Distinction between stock and merchandise. 740. Price receivable on sub-con- 748. No just distinction. tract. 741. Avoidable loss. 749. Same reason for rule where property has fallen. II.-BREACH BY VENDee. $ 754. Rescission. § 750. Rule where title has passed. 751. Instances. 752. Manufactured articles-Minerals and gravel. 753. Rule where title has not passed. 755. Resale after default. 756. Promise to give a bill or note. 757. Consequential damages. III. COUNTERMAND BEFORE TIME FOR PERFORMANCE. § 758. Effect of notice of countermand. § 759. Warranties. IV.-WARRANTY. 760. Cases allowing difference between price and actual value. 761. Between value as warranted and actual value. 762. The latter the general rule. 763. Warranty of quantity or value. 764. Avoidable consequences. § 765. Consequential damages. 767. Upon warranty of machines. 769. By communication of disease. 770. Upon a sub-contract. 771. Purchase for sale at a distance. §733. Introductory.-* We now approach the consideration of a large class of cases falling under the head of the common-law action of assumpsit,-that of contracts for the sale of chattels or personal property. These contracts may be broken, either completely, by the vendor's neglect to deliver the article, or by the vendee refusing to pay the price; or partially, by the article proving different from some warranty made in regard to it at the time of sale. Generally, it may be said that these agreements furnish their own measure of damages; in other words, that courts of justice, without desiring to fix any arbitrary rate of remuneration, endeavor solely to carry into effect the contract of the parties; and to this rule the only exception that can be said to exist is that in regard to agreements of an unconscionable and oppressive character, which we have already considered.1** $734. General rule.-* We have first to consider the cases arising from the failure of the seller to perform his agreement. When contracts for the sale of chattels are broken by the vendor failing to deliver the property according to the terms of the bargain, it seems to be well settled, as a general rule, both in England and the United States, that the measure of damages is the difference between the contract price and the market value of 1 § 612. the article at the time when ** and the place where it should have been delivered, with interest.(") It follows from this rule, that if, at the time fixed for the delivery, the article has not risen in value, the vendee having lost nothing can recover only nominal damages.(*) Accordingly, where goods are sold, and it is agreed that the market price shall be paid for them, damages for non (*) Peterson v. Ayre, 13 C. B. 353; O'Neill v. Rush, 12 Ir. L. 34; Marsh v. McPherson, 105 U. S. 709; Barnard v. Conger, 6 McLean 497; Halsey v. Hurd, 6 McLean 102; Gilpin v. Consequa, Pet. C. C. 85; Harralson v. Stein, 50 Ala. 347; Bozeman v. Rose, 51 Ala. 321; Bell v. Reynolds, 78 Ala. 511; Haas v. Hudmon, 83 Ala. 174; Clements v. Beatty, 87 Ala. 238; Crosby v. Watkins, 12 Cal. 85; Bullard v. Stone, 67 Cal. 477; Cal. Code, §§ 3308, 3354; Cole v. Cheovenda, 4 Col. 17; McAllister v. Douglas, 1 D. C. (1 Cr. C. C.) 241; Southwestern R.R. Co. v. Rowan, 43 Ga. 411; Smith v. Dunlap, 12 Ill. 184 Deere v. Lewis, 51 Ill. 254; Driggers v. Bell, 94 Ill. 223; Loescher v. Deisterberg, 26 Ill. App. 520; Gatling v. Newell, 12 Ind. 118, 125 (semble); Zehner v. Dale, 25 Ind. 433; Frink v. Tatman, 36 Ind. 259; McCollum v. Huntington, 51 Ind. 229; Fell v. Muller, 78 Ind. 507; Rahm v. Deig, 121 Ind. 283; Cannon v. Folsom, 2 Ia. 101; Boies v. Vincent, 24 Ia. 387 ; Jemmison v. Gray, 29 Ia. 537; Osgood v. Bauder, 75 Ia. 550; Faulkner v. Closter, 79 Ia. 15; Gray v. Hall, 29 Kas. 704; Miles v. Miller, 12 Bush 134; Koch v. Godshaw, 12 Bush 318; Marchesseau v. Chaffee, 4 La. Ann. 24; Thompson v. Howes, 14 La. Ann. 45; Bush v. Holmes, 53 Me. 417; Kribs v. Jones, 44 Md. 396; Pinckney v. Dambmann, 19 Atl. Rep. 450 (Md.); Shaw v. Nudd, 8 Pick. 9; Bartlett v. Blanchard, 13 Gray, 429; Essex M. Co. v. Pacific Mills, 14 All. 389 Chadwick v. Butler, 28 Mich. 349; McKercher v. Curtis, 35 Mich. 478; Northrup v. Cook, 39 Mo. 208; Harrison Wire Co. v. Hall & W. H. Co., 97 Mo. 289; Davis v. Shields, 24 Wend. 322; McKnight v. Dunlop, 5 N. Y. 537; Dana v. Fiedler, 12 N. Y. 40; Parsons v. Sutton, 66 N. Y. 92; Windmuller v. Pope, 107 N. Y. 674; Billings v. Vanderbeck, 23 Barb. 546; Yorke v. Ver Planck, 65 Barb. 316; Brock v. Knower, 37 Han 609; Norton v. Wales, 1 Robt. 561; Beals v. Terry, 2 Sandf. 127; Fessler v. Love, 43 Pa. 313; White v. Tompkins, 52 Pa 363; Culin . Woodbury Glass Works, 108 Pa. 220; Davis v. Richardson, I Bay 105; Doak v. Snapp, 1 Coldw. 180; Harris v. Rodgers, 6 Heisk. 626; Randon v. Barton, 4 Tex. 289; Duncan v. McMahan, 18 Tex. 597 (semble); Day v. Cross, 59 Tex. 595; Guice v. Crenshaw, 60 Tex. 344; Smith v. Snyder, 82 Va. 614 (semble); Sweeney v. Jamieson, 2 Wash. 254; Hill v. Chipman, 59 Wis. 211; Feehan v. Hallinan, 13 Up. Can. Q. B. 440. () Faulkner v. Closter, 79 Ia. 15; Currie v. White, 6 Abb. (N. S.) 352, delivery are only nominal; (*) and the same is true where the price of the goods is by the contract to be fixed by appraisers at the time of delivery.(") The plaintiff sold the defendant a slave, with an agreement that if the defendant wished to sell the slave, the plaintiff should have the privilege of repurchasing at the price paid by the defendant. The defendant sold the slave to a third party. The measure of damages was the difference between the market value of the slave at the time of the sale to the third party and the agreed price.(©) The reason of the rule is usually said to be that this is the plaintiff's real loss, because with this sum he can go into the market and supply himself with the same article from another vendor.' (d) The rule applies where there is a delivery of part only of the goods contracted for.(*) Where the vendor puts it out of his power to fulfil his contract of sale by selling a portion of the goods to a third party before the time stipulated for the delivery, the vendee in an action for the breach of the contract is entitled to the difference between the market value and the contract price, on all the goods contracted to be sold, and not merely those which the vendor had thus put it out of his power to deliver; (') for the entire contract was broken by the vendor's act. The vendee could not be 1 Dey v. Dox, 9 Wend. 129; Davis v. Shields, 24 Wend. 322; Beals v. Terry, 2 Sandf. 127; McKnight v. Dun (*) Wire v. Foster, 62 Ia. 114. lop, 5 N. Y. 537; Owen v. Routh, 14 C. B. 327. () Josling v. Irvine, 6 H. & N. 512; Clark v. Dales, 20 Barb. 42; Belden v. Nicolay, 4 E. D. S. 14. And if he can supply himself at a less price than the market price, the measure of damages is the difference between that price and the contract price. Harrison Wire Co. v. Hall & W. H. Co., 97 Mo. 289. () Valpy v. Oakeley, 16 Q. B. 941. (Crist v. Armour, 34 Barb. 378. |