but this is upon the ground that the price so obtained is evidence against the original vendee of the market value, and that, if the sale is properly conducted, it fixes, as against them, the amount of the vendor's damages. It is more properly said that the price obtained at the resale is evidence of the market value. . . . So, the true rule is that, in an action for damages for the refusal on the part of the vendee to accept goods as agreed in his contract of purchase, the measure of damages is the difference between the market value of such goods at the time of the breach and the price the vendee agreed to pay." T. B. Scott Lumber Co. v. Hafner-Lothman Mfg. Co. (1895) 91 Wis. 667, 65 N. W. 513.

In a case in Massachusetts, it was held that the damages should be determined as of the date of the repudiation, and that the plaintiff could only recover nominal damages where the market value of the goods was equal to or in excess of the contract price on that date. In that case, which involved a contract for the purchase of electric lamp bulbs, it appeared that the buyer wrote a letter repudiating the contract. The court said: "The defendant, on July 10, 1913, wrote the plaintiff referring to the 23,000 lamps or bulbs for which it sought damages under the first count, saying: 'I shall have to ask you not to send me any more of the miniature or candelabra base bulbs until we have an agreement regarding prices, for I cannot afford to pay you 15 cents and assume so large a quantity at once, when I can buy them for practically the same price, as I want them.' .. July 21, 1913, the plaintiff wrote, saying: 'If you cannot use the lamps at these prices I will dispose of them elsewhere, as I can easily do so at better prices than quoted you.' The plaintiff knew, on receipt of the letter of July 10, that the defendant had repudiated the contract and had refused to receive the remaining bulbs. The plaintiff then had a right of action against him because of his breach of the agreement, and the measure of its damages must be determined as of that date. The plaintiff could not delay until there

was a change in the market, and place the loss upon the defendant. Its duty was to be reasonably active to save itself from loss. There was no

evidence that the plaintiff suffered any substantial loss by the defendant's refusal, because there was nothing to show that the market price at the time was any less than the contract price; in fact, it offered to show that 'from April 1, 1913, to July 25, 1913, the market price of the lamps which had been delivered to the defendant was the same as the contract price,' and in its letter of July 21, 1913, admitted that the market price was higher than the contract price." Centennial Electric Co. v. Morse (1917) 227 Mass. 486, 116 N. E. 901.

But in a later case in that state, which involved the question of damages where the buyer had repudiated a contract to manufacture spark intensifiers after the time specified for performance by the seller, it was said: "In this commonwealth the renunciation or repudiation of a contract before the day of performance ordinarily is not such a breach of obligation as gives an immediate right of action, and damages are to be determined as of the day when there should be performance, and not as of the day of the repudiation of the contract." Star Fuse Co. v. Prussian (1924) Mass. 143 N. E. 145.

In Tustin Fruit Asso. v. Earl Fruit Co. (1898) 6 Cal. Unrep. 37, 53 Pac. 693, it was held that where the purchaser refused to proceed further under a contract for the sale of oranges, the damages were to be computed on the basis of their value to the seller in the condition they were when he could have sold them after the repudiation. The court, in reaching that conclusion, referred to the following Code provision, saying: "Both sides assume that the rule of damages is furnished by the following provisions of 3311 of the Civil Code: "The detriment caused by the breach of a buyer's agreement to accept and pay for personal property, the title to which is not vested in him, is deemed to be: . (2) If the property has not been resold in the manner pre

scribed by 3049, the excess, if any, of the amount due from the buyer, under the contract, over the value to the seller, together with the excess, if any, of the expenses properly incurred in carrying the property to market, over those which would have been incurred for the carriage thereof if the buyer had accepted it.'"

In Scribner v. Schenkel (1900) 128 Cal. 250, 60 Pac. 860, it appeared that a contract had been entered into for the sale of hogs at a fixed price, with delivery at the demand of the purchaser, and that defendant refused to perform his part of the contract. The court said: "When, after payment for some of the hogs, defendant informed plaintiffs that he declined to pay for the shipment already made and would pay for no more of the hogs sold, he put himself in default, and plaintiffs became entitled to enforce the obligation without further offer of delivery upon their part. Civ. Code, § 1440. Plaintiffs, in other words, were entitled to do precisely as they did do, -sell the remainder of the hogs at the market price, credit the defendant with the amount of the sale, and go into court to recover the difference between the amount of such sale and the contract price. It was not necessary for plaintiffs to tender the hogs to Crockett. The defendant was their principal debtor, and his refusal further to proceed with the contract amounted to a breach of it, and made a tender unnecessary."

Where the exact time for delivery is not fixed by the contract and is to be afterwards fixed by the purchasers, the measure of damages is the difference between the contract price and the market value at the date of refusal to receive; for such refusal necessarily implies a refusal to fix a time, and there is then a complete. breach of the contract. Huguenot Mills v. Jempson (1904) 68 S. C. 363, 102 Am. St. Rep. 673, 47 S. E. 687.

So, in a case in Texas in which it does not appear that any time was set for delivery, it was held that the damages recoverable were to be estimated on the difference between the price called for by the contract and

the market price at the time of the breach. The court said: "Appellee was notified by appellant not to ship the hay, and, not having shipped it when he received this notice, it was his right and duty to resell it to the best advantage in the market where it was, and the true measure of his damage is the difference between what he would have received for it under the contract and its market value in Waller county at the date of the breach of the contract, with legal interest on the amount from said date." Grant v. Duer (1885) 2 Tex. App. Civ. Cas. (Willson) 502.

It, has however, been declared that an apparent exception (but, in reality, an accurate application of the general rule, according to some textwriters and the doctrine of a few cases) exists where the article which the vendor agrees to sell and the vendee agrees to buy has a market value, and is generally and usually sold for future or forward delivery; in which case the measure of damages is said to be the difference between the price fixed in the contract and the market price of such article for future or forward delivery, according to the contract breached; and this difference is to be determined at the time the tender of the breach is accepted. Phosphate Min. Co. v. Atlanta Oil & Fertilizer Co. (1917) 20 Ga. App. 660, 93 S. E. 532.

And where a contract calling for future delivery of flour was repudiated by the buyer before the time for delivery arrived, and the seller elected to sue for damages before time for delivery under the contract, it was held that the damages would be computed on the basis of the difference between the contract price and the price for which the seller could have sold, at the time of repudiation, a similar amount of goods of the same kind of merchandise for delivery at the time specified in the contract. Jebeles & C. Confectionery Co. v. Stephenson (1912) 6 Ala. App. 103, 60 So. 437.

So, in a case which involved a contract for the purchase of cocoanut oil for delivery on future specified dates, which contract had been repudiated by

the receivers for the buyer, it was held that damages were to be assessed as of the date when the receivers were appointed, on the basis of the difference between the contract price and the market price at that time for similar goods to be delivered at the times called for in the contract. Samuels v. E. F. Drew & Co. (1922) 286 Fed. 278, affirmed in (1923) 292 Fed. 734.

And in England it was said in a case decided by the King's bench: "In my opinion the true rule is that where there is an anticipatory breach by a seller to deliver goods for which there is a market at a fixed date, the buyer, without buying against the seller, may bring his action at once, but that, if he does so, his damages. must be assessed with reference to the market price of the goods at the time when they ought to have been delivered under the contract. If the action comes to trial before the contractual date for delivery has arrived, the court must arrive at that price as best it can." Melachrino v. Nickoll [1920] 1 K. B. (Eng.) 693.

It has, however, been held in Georgia that this apparent exception to the general rule is not recognized in that state, and that, though the plaintiff sues at once for an anticipatory breach of contract, and trial of the action is had before the expiration of the contract, the measure of his damages is the difference between the contract price of the subject-matter of the contract and the market price at the time and place of performance, and not at the time of the breach. Testimony as to the market value of the subject-matter of the contract should not be confined to the time of the breach. And this is true although the subject-matter of the contract is an article usually and generally, but not exclusively, sold for future or forward delivery. Phosphate Min. Co. v. Atlanta Oil & Fertilizer Co. (Ga.) supra.

In a case in North Carolina wherein it appeared that a person contracted to purchase cotton at the price for which it sold at Petersburg on the 25th day of April, 1851, and that the buyer, after receiving delivery of a

portion of the cotton, repudiated the contract as to the balance, it was held that the seller was entitled to recover the difference between the market price at Petersburg on the 25th day of April and the price which he received for it on a sale of it at Petersburg on the 9th day of August. Clifton v. Newsom (1853) 46 N. C. (1 Jones, L.) 108, wherein the court said: "By his notice to the plaintiff, the defendant repudiated the contract, and the plaintiff was under no obligation to keep the cotton on hand, but was at liberty to do so if he pleased. If he had done so, he might have sold it in Franklin, where the contract was made, and have recovered from the defendant the difference between the agreed price and what the cotton actually brought. . . . The Petersburg market, at a certain time, was the one by which the price of the cotton was to be ascertained, according to the contract. It was therefore with propriety, and with a proper attention to the interest of the defendant, that the plaintiff resorted to that market, to do justice between himself and the defendant. The defendant's refusal to take the remaining 29 bales exonerated the plaintiff from the necessity of keeping them, and the defendant has no right to complain that he did sell them. . . . It is urged, however, that, in such a case, the rule of damage is the difference between the agreed price for the article and the market price when, by the contract, the article is to be delivered, and that it was the duty of the plaintiff to have proved what was the market value in Franklin, where the parties lived. That is, in general, true, but we more than doubt whether its application to this case would have benefited the defendant. . . . We are of opinion that the evidence in the case does furnish a sound rule to guide the jury to ascertain the amount of the damages to which the plaintiff was entitled, to wit, the difference between $9.80 per hundred, and $7.80, for which the 29 bales netted on the 9th of August, 1851."

In a case in Kentucky in which it appeared that there was not a clearly

expressed renunciation of a contract to purchase stoves, the courts said: "The letter of January 20 was not a repudiation of the contract, though it carried the first intimation of evasion. It contained no promise of a definite date of inspection, nor any assurance of an effort to arrange for an inspection at the earliest practicable date, as other letters had done. But it did not declare an intention of abandoning the contract, though it did evidence a willingness, and perhaps a desire, to avoid it. This letter was not of itself a breach of the contract, though appellee might have elected so to treat it. It is a universal rule that renunciation must be clear and unmistakable. . Appellee had the right on receipt of the letter, as indeed it had the right before that time, to elect to treat the contract as broken, and pursue such course as it deemed wise for the protection of its rights. But there was no definite and clear renunciation on the part of appellant, and there was still left to appellee the option of waiting a reasonable time in the expectation that appellant would carry out its agreement, according to its formerly announced intention so to do. Although appellee, on receipt of the letter of January 20, might have elected at once to treat the contract as broken, it did not so elect, but waited until February 27, when it again reminded appellant of the contract, and, receiving no response to its letter of that date on March 10, declared the contract breached. If appellant did not intend to carry out the contract, it could have clearly expressed that purpose in the letter of January 20. It did not do so, but left appellees under the impression that it would fulfil its obligations, though indifferent as to doing. so. Appellee was not required to treat the letter as a renunciation of the contract, but had the right to expect its performance and to govern itself accordingly, until such time as it concluded that the contract would not be performed, and then to declare it forfeited. This it did on March 10. We hold, therefore, that the breach occurred on the latter date." Paducah

Cooperage Co. v. Arkansas Stave Co. (1922) 193 Ky. 774, 237 S. W. 412.

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

No rescission of a contract of sale results from a repudiation by the buyer which is not acquiesced in by the seller. Oklahoma Vinegar Co. v. Carter (1902) 116 Ga. 140, 59 L.R.A. 122, 94 Am. St. Rep. 112, 42 S. E. 378; Kadish v. Young (1883) 108 III. 178, 48 Am. Rep. 548; Robson v. Hale (1913) 139 Ga. 753, 78 S. E. 177; Phosphate Min. Co. v. Atlanta Oil & Fertilizer Co. (1917) 20 Ga. App. 660, 93 S. E. 532; Grays Harbor Commercial Co. v. Turnbull-Joice Lumber Co. (1911) 163 Ill. App. 231; Krebs Hop Co. v. Livesley (1911) 59 Or. 574, 114 Pac. 944, 118 Pac. 165, Ann. Cas. 1913C, 758. And see the reported case (BELISLE V. BERKSHIRE ICE Co. ante, 108).

Therefore, where the seller does not accept an anticipatory repudiation, and treats the contract as in force until after the time of performance has passed, it has been held that the market value at the time fixed for delivery under the contract controls in estimating the damages.

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

Alabama. Crandall-Pettee Co. v. Jebeles & C. Confectionery Co. (1915) 195 Ala. 152, 69 So. 964.

Connecticut.-See the reported case (BELISLE V. BERKSHIRE ICE Co. ante, 108). Georgia.

Oklahoma Vinegar Co. v. Carter (1902) 116 Ga. 140, 59 L.R.A.122, 94 Am. St. Rep. 112, 42 S. E. 378.

Illinois. Kadish v. Young (1883) 108 Ill. 170, 48 Am. Rep. 548; Great Western Coal & Coke Co. v. St. Louis & B. M. Coal Co. (1908) 140 Ill. App. 368.

Indiana.-McComas v. Haas (1886) 107 Ind. 512, 8 N. E. 579.

Kansas. Rock v. Gaede (1922) 111 Kan. 214, 27 A.L.R. 1152, 207 Pac. 323.

In this connection it is declared in the reported case (BELISLE v. BERKSHIRE ICE Co. ante, 108) that a contract of sale is not terminated by the refusal of the buyer to perform, unless such refusal is acquiesced in by the seller, and that therefore, where it is not acquiesced in, an action will not lie until the time of performance has arrived, at which time the damages are to be assessed in view of the market value, if any, then existing. See 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.

So, in another Connecticut decision it was said: "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."

Home Pattern Co. v. W. W. Mertz Co. (1913) 86 Conn. 494, 86 Atl. 19.

And in Arkansas, where an action had been brought for a breach of an executory contract to purchase coke, in which case it appeared that the defendant, before the time arrived for the performance of the contract on the part of the seller, had canceled the order and unqualifiedly declared he would not receive the coke, the court said: "The contract was then not rescinded, but broken by the appellant; and by such repudiation of the contract he absolved the appellant from any further duty to tender or ship the coke. 2 Mechem, Sales, § 1087. The appellee, at the time of the repudiation. of the contract by the appellant, was not in any default, and it did not lie within the power of the appellant to end the contract without the consent of appellee. The appellee had then the right to treat this repudiation as a wrongful putting an end to the contract, and to at once bring his action as for a breach of it. In the case of Roehm v. Horst (1898) 33 C. C. A. 550, 62 U. S. App. 520, 91 Fed. 345, it was ruled that a positive and absolute refusal to carry out the contract prior to the date of actual default amounted to a breach of the contract, and that, after the renunciation of the agreement by the one party, the other party should be at liberty to consider himself absolved from any further performance of it, retaining his right to sue for any damage he has suffered from the breach of it. This case was affirmed by the Supreme Court of the United States in (1900) 178 U. S. 1, 44 L. ed. 953, 20 Sup. Ct. Rep. 780, and we think correctly announces the rights of the parties under such circumstances. In the case at bar the appellant, by his letter of June 13, absolutely and unqualifiedly canceled the contract and renounced its performance. The evidence tends to prove that prior to that time appellee was ready and willing to perform the contract on its part. It was urging the appellant to send his request for the coke so that appellee could ship it to him. But the appellant refused to comply with the provisions of the