grieved by this computation, and has now no sufficient reason to ask that the judgment be disturbed in this respect.

Turning to the appeal of the Naugatuck Valley Ice Company, it is evident that, for the reasons just stated, this defendant cannot complain of that part of the judgment which includes the purchase price of the barge load of ice which it received and accepted on September 7, 1919. Payment was due on that day. The court alAppeal-error in lowed interest reckoning interest-right to the sum due for complain. this ice from No

on

vember 1, instead of the earlier date of September 7, 1919. This defendant manifestly was not aggrieved by this error.

The principal point raised and pressed by this defendant in its appeal relates to the damages allowed for this defendant's refusal to accept the remainder of the ice. The appellant contends that this point depends on the date which shall be taken as the date of the breach of its contract, if it made any breach, and upon proof of the market value of ice at the date of that breach or within a reasonable time thereafter. It argues that the date of the breach was August 28, 1919, when it notified the plaintiff that it did not want any more ice, and that on that day or within a reasonable time thereafter it became the duty of the plaintiff to find a market and to resell the unaccepted ice at the best price obtainable, and that, if he failed to do this, he could not recover the damages allowed in the judgment unless he had proved that there was no available market after September 7, 1919, when he received this defendant's notice that it would not accept any more ice, and before November 1, 1919, when the plaintiff ceased to have any ice to deliver to this defendant, in which the plaintiff might have sold the undelivered ice at a price equal to or greater than the contract price. This argument rests on the assumption that this defendant's notice of

Sales-breach

effected.

of

its refusal to accept the remainder of the ice by itself effected a breach of the contract on the day it was received. That assumption is not supported by the law applicable to the facts of this case. Here was an executory contract to be performed at any time before November 1, 1919. 1919. On September 3, 1919, this defendant absolutely, distinctly, and unequivocally refused to perform its promise, and gave unmistakable evidence of its renunciation. But contract to purthis did not make chase-when a breach of this contract. It remained a subsisting contract unless and until the other party, the plaintiff, gave equally unmistakable evidence of his acquiescence in or acceptance of the defendant's repudiation. This court said in Home Pattern Co. v. W. W. Mertz Co. 86 Conn. 494, 501, 86 Atl. 21: "The repudiation of the contract without the acquiescence of the plaintiff did not put an end to the contract. The plaintiff could still treat it as subsisting, and, notwithstanding the notice of repudiation, assume that the defendant would perform its part of the contract when the time for such performance should arrive. Had it chosen to consent to the renunciation, it might have done so and brought an action at once for breach of the contract, but there can be no anticipatory breach of a contract by one party without the acquiescence of the other. A breach by one party alone can only occur after the time for performance has arrived. Frost v. Knight, L. R. 7 Exch. 111, 112, 41 L. J. Exch. N. S. 78, 26 L. T. N. S. 77, 20 Week. Rep. 471-Exch.; Johnstone v. Milling, L. R. 16 Q. B. Div. 460, 467, 55 L. J. Q. B. N. S. 162, 54 L. T. N. S. 629, 34 Week. Rep. 238, 50 J. P. 694-C. A.; Wells v. Hartford Manilla Co. 76 Conn. 27, 35, 36, 55 Atl. 599; Kadish v. Young, 108 Ill. 170, 183, 48 Am. Rep. 548; Bernstein v. Meech, 130 N. Y. 354, 358, 29 N. E. 255."

The record before us does not

-contract for purchase of goods-when breken.

show that the plaintiff had accepted or acquiesced in this defendant's repudiation of this contract. Therefore it was never broken. By its terms it remained in uninterrupted existence until November 1, 1919. At any time until that day this defendant, notwithstanding its letters to the plaintiff, had the right to take the entire quantity of ice specified in its contract. By its refusal to exercise that right within the time limited, it broke its contract on the last day fixed. The trial court correctly held that the breach was made on November 1, 1919. And the record does not disclose that this defendant made any claim of law during the trial, or has made any assignment of error on appeal, which challenges that decision. There could be no market for this ice available to the plaintiff, because, by reason. of his contract with this defendant, so long as it remained in force, the plaintiff had no ice which he could sell. Until November 1, 1919, he was stripped of all power to deliver this ice to anyone but this defendant. On November 1, 1919, he lost all right, title, and interest in this ice.

When he received notice of this defendant's repudiation of its contract, the plaintiff had the right to choose whether he would adopt the repudiation, or would treat the contract as still subsisting and assume that this defendant would perform its part before the time. for such performance should expire. He chose to follow the latter course. Hence a breach of the contract by this defendant alone did not occur until the time for performance by it had come and passed, and not until then would a cause of action on the contract arise. Wells v. Hartford Manilla Co. 76 Conn. 27, 35, 55 Atl. 599; Home Pattern Co. v. W. W. Mertz Co. supra. This defendant continued to refuse to accept and pay for the remainder of the ice according to its agreement. The court below has found that its 43 A.L.R.-8.

refusal was wrongful, and that conclusion is supported by the circumstances revealed by the record. Therefore the plaintiff may maintain an action against this defendant for damages for nonacceptance. Gen. Stat. § 4730. This statute further provides that "the measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract." As we have said, under the conditions existing in this case, there was no market for this ice which was available by the plaintiff at the time when the refusal went into effect. Moreover, the court below has found the fact that there was no such market, and the evidence printed in the record sufficiently supports that conclusion. Since there was no market, the plain

Damages-for

tract to pur

amount.

tiff should recover refusal to comthe actual damages ply with conwhich he has suf- chase icefered. Jordan v. Patterson, 67 Conn. 473, 480, 35 Atl. 521. The trial court estimated the loss to be the contract price of the unaccepted ice. Manifestly that loss directly result

ed from this de--loss of profits. fendant's nonacceptance of that ice. The plaintiff was liable to pay the American Ice Company $3 a ton for this ice, and would have suffered that loss but for the release given to him on condition that he waive his claim for damages against this defendant on this account. It seems equally plain that he has lost the profit of 75 cents a ton which he would have made if this defendant had fulfilled the contract. were not remote, uncertain, or speculative. They were fixed by the contract, and they were lost only because this defendant broke the contract. The loss of profits is always a proper subject for compensation if such a loss can be shown with reasonable certainty. Churchill Grain & Seed Co. v. Newton, 88 Conn. 130, 134, 89 Atl. 1121; 2 Mechem, Sales, §§ 1705, 1707. "The general intention of the law giving damages in

They

an action for the breach of a contract like the one here in question, is to put the injured party, so far as it can be done by money, in the same position that he would have been in if the contract had been performed." Jordan v. Patterson, supra.

After November 1, 1919, the undelivered ice had no pecuniary value for the plaintiff. In such a case damages are measured by the entire contract price. Allen v. Jarvis, 20 Conn. 38, 48; Williston, Sales, p. 969; Elliott (Conn.) Sales, p. 609, note 17.

We think the court below made no error in estimating the damages in this case.

The first and second reasons of appeal refer to the finding of the court below that there was no available market, and its computation of damages. For the reasons we have already stated, there is no merit in these reasons. Seven other reasons of appeal specify errors in overruling what are called questions of law raised by the appellant before the trial court. Really these questions are questions of fact; for instance, whether the court erred in finding that the ice delivered to the defend

ants was of the quality contracted for, whether the defendants had any knowledge of the quality of the ice the plaintiff had to sell except from his representations, whether the plaintiff made any false representations concerning the quality of the ice, and similar

Appeal-assignmatters. These are ment on find

not proper assign- ings of fact. ments of error. So far as they question conclusions of fact, it appears that those conclusions were warranted by the evidence laid before

us.

Another reason of appeal complains of the finding that the plaintiff, after he received notice of the repudiation of the contract, had no duty to transport the remainder of the ice from Maine to Rhode Island and to sell it there. There was no error in this ruling, for the reasons we have already indicated.

The remaining reasons of appeal relate to the refusal of the trial court to correct and add to its finding. Some of these changes were not warranted by the evidence, and the others would not affect the conclusions we have reached.

There is no error in either case.
The other judges concur.

I. Introductory, 114.

II. Where seller elects to adopt repudiation as breach, 115.

III. Where seller does not elect to adopt repudiation as breach, 120.

IV. Goods or merchandise to be manufactured or produced, 129.

I. Introductory.

It is a general rule that the measure of damages for breach, by the buyer, of a contract for the sale of goods, is the difference between the contract price and the market price at the time of the breach. In the application of this rule there arises the question to which the present discussion is limited, whether, in case of an antici

patory breach by the buyer, the market price at the time of that breach or the market price at the time for performance fixed by the contract is to be considered.

In this connection, it should be observed that § 64 of the Uniform Sales Act (1 U. L. A. 220) provides as follows: (1) "Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for nonacceptance. (2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract. (3) Where

there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept."

II. Where seller elects to adopt repudiation as breach.

In the case of an executory contract for the sale of goods which imposes no duty on the seller to manufacture them, if the buyer refuses prior to the time for performance to comply with his part of the contract and repudiates it, the seller is not confined to a suit for the purchase price, but has the right to adopt the repudiation and sue for the breach. If he exercises that right it is generally held that the measure of damages is to be computed on the basis of the difference between the value of the goods or merchandise at the time of the repudiation, if the seller accepts it as a breach of the contract, and the price agreed to be paid therefor.

United States.-Vogt Bros. Mfg. Co. v. Sloss-Sheffield Steel & I. Co. (1924) 297 Fed. 54.

Alabama.-Gate City Cotton Mills v. Rosenau Hosiery Mills (1909) 159 Ala. 414, 49 So. 228; Wheeler v. Cleveland (1910) 170 Ala. 426, 54 So. 277; Patterson & E. Lumber Co. v. Daniels (1921) 205 Ala. 520, 88 So. 657; Jebeles & C. Confectionery Co. v. CrandallPettee Co. (1918) 16 Ala. App. 338, 77 So. 932; Steele By-Products Co. v. McGee & Cowart (1922) 19 Ala. App. 29, 94 So. 268.

California. Scribner v. Schenkel (1900) 128 Cal. 250, 60 Pac. 860.

Connecticut.-Home Pattern Co. v. W. W. Mertz Co. (1913) 86 Conn. 494, 86 Atl. 19, later appeal in (1914) 88 Conn. 22, 90 Atl. 33.

Minnesota. Minneapolis Iron Store Co. v. E. G. Staude Mfg. Co. (1922) 153 Minn. 107, 189 N. W. 596.

Missouri. See Berthold v. St. Louis Electric Constr. Co. (1901) 165 Mo. 280, 65 S. W. 784.

Wisconsin.-T. B. Scott Lumber Co. v. Hafner-Lothman Mfg. Co. (1895) 91 Wis. 667, 65 N. W. 513.

Canada.-Crowe v. Gough (1910) 44 N. S. 248; Hammond v. Daykin (1915) 8 West. Week. Rep. 512.

In this connection it was said in a frequently cited case decided by the United States Supreme Court: "We think that . . . it is proper to consider the reasonableness of the conclusion that the absolute renunciation of particular contracts constitutes such a breach as to justify immediate action and recovery therefor. The parties to a contract which is wholly executory have a right to the maintenance of the contractual relations up to the time for performance, as well as to a performance of the contract when due. If it appears that the party who makes an absolute refusal intends thereby to put an end to the contract so far as performance is concerned, and that the other party must accept this position, why should there not be speedy action and settlement in regard to the rights of the parties? Why should a locus penitentiæ be awarded to the party whose wrongful action has placed the other at such disadvantage? What reasonable distinction per se is there between liability for a refusal to perform future acts to be done under a contract in course of performance, and liability for a refusal to perform the whole contract, made before the time for commenceRoehm v. ment of performance?"

Horst (1900) 178 U. S. 1, 44 L. ed. 953, 20 Sup. Ct. Rep. 780, affirming (1898) 33 C. C. A. 550, 62 U. S. App. 520, 91 Fed. 345, which affirmed (1898) 84 Fed. 565.

So, in a case in Alabama which involved a contract for the sale of yarns, the evidence, without conflict, showed that plaintiff did not manufacture any specific yarns for the defendant, but,

during the whole period covered by its contract with the defendant, manufactured a sufficient quantity of yarns to supply all of its customers, and in that way always had enough yarns to ship defendant on the contract at any time it might order them; that it did not have to hold or carry over any yarns on account of defendant's failure or refusal to carry out its contract, but sold all the yarns it made during the season to other customers. There was also evidence which tended to show a decline in the price of yarns, after the contract was entered into and before the 1st day of January, 1905. The court said: "The action, as we have seen, is for the breach of an executory contract, in that defendant refused to accept or receive the goods purchased. The evidence, clearly and without conflict, shows that the goods had a market price at the place of sale, as well as such at the place of delivery, and that they were readily marketable; and, under the evidence cited above, we do not comprehend why the difference between the contract price and the market price would not fully compensate plaintiff for being deprived of the benefits of the contract, nor why it should not be the true rule for the admeasurement of plaintiff's damages. On the breach of a contract of executory sale by the vendee, in a refusal to receive the property, the vendor's measure of damages, generally, is the extent of his actual injury, which ordinarily is the difference between the contract price and the market value at the time and place of the breach." Gate City Cotton Mills v. Rosenau Hosiery Mills (1909) 159 Ala. 414, 49 So. 228.

Again, in that state it has been said that where the purchaser of goods under an executory contract wrongfully refuses to accept them, or to perform some duty preliminary to their delivery and acceptance, the measure of the seller's damages is not the contract price, but the difference between the contract price-less the cost of delivery, if unincurred-and the market price or selling value at the time and place of the default. Patterson & E.

Lumber Co. v. Daniels (1921) 205 Ala. 520, 88 So. 657.

In another case in Alabama, which involved the question of damages for breach of a contract to purchase velvet bean meal, the court said: "If the defendant repudiated the contract, the plaintiff is entitled to recover the value of the contract to him at the time of such repudiation, and in this case, where the evidence shows the repudiation was before the delivery, or the time for the delivery, of the commodity named in the contract, the measure of damage is the difference between the contract price of velvet bean meal, viz., $30 per ton, and the market value of meal of the quality called for by the contract price of November 30, 1920, at Arlington, Georgia; this amount less, however, the value of the shortage shown by the evidence to have existed in the two cars of beans at Memphis, shipped under prior contracts." Steele ByProducts Co. v. McGee & Cowart (1922) 19 Ala. App. 29, 94 So. 268.

In a case in Kansas wherein it was held that the seller might wait until the expiration of the period fixed for delivery, and recover damages based on the difference between the market value at that time and the contract price, it was also declared that, if the refusal to accept delivery was treated by the seller as final at an earlier time, the market value at that time would be controlling. Rock v. Gaede (1922) 111 Kan. 214, 27 A.L.R. 1152, 207 Pac. 323.

In a case in Wisconsin in which it appeared that, after accepting part of the lumber contracted for, the purchaser repudiated the contract, and that the seller, on receiving notice of such repudiation, notified the buyer that it would proceed to sell the remainder on the best terms obtainable, which it did, the court said: "The proper rule of damages in such cases is the difference between the contract price and the market price at the time of the breach. . . . It is often said that, in case of a resale within a reasonable time, the measure of damages is the difference between the price obtained and the contract price;