contract on his part, and repudiated it on the ground, as he then claimed, that the coke did not come up to the requisite quality. That issue was presented to the jury, and it was decided against appellant. The appellee was therefore not in any default; and the appellant then wrongfully breached the contract. The appellee thereupon had the right to treat the breach as complete and to sue for the damage he suffered thereby. It was not necessary, then, for the appellee to prove that he actually had the coke on hand and tendered same, or that it actually sold the coke for a less price than the contract price. Tiedeman, Sales, § 333; 2 Mechem, Sales, § 1091. Upon a breach of contract to purchase goods by the buyer, the general rule is that the measure of damages is the difference between the price fixed by the contract and the market value of the goods at the time and place of the delivery, provided the contract price exceeds said market value." Kirchman v. Tuffli Bros. Pig Iron & Coke Co. (1909) 92 Ark. 111, 122 S. W. 239.

So, again, in an Illinois case, where the purchaser had refused to accept delivery of shingles which he had contracted to buy, the court said: "When, under such a contract, the vendor shows a state of facts entitling him to recover, and brings his suit after the last day when delivery can be made under the terms of the contract, the measure of damages is the difference between the contract price and the market price of the goods at the time and place stipulated for delivery." Grays Harbor Commercial Co. v. Turnbull-Joice Lumber Co. (1911) 163 Ill. App. 231.

And in Kansas, in a case in which it appeared that, after the execution. of a contract for the future delivery of flour to be manufactured by the seller, the buyer repudiated the contract, it was held that the seller was not required to acquiesce in defendant's renunciation of the contract, but might wait until the expiration of the time fixed for delivery, and then recover damages based on the difference between the agreed price and the

market price of the flour at the end of such period. Rock v. Gaede (1922) 111 Kan. 214, 27 A.L.R.1152, 207 Pac. 323.

And in Oregon the court said in a case in which this question was involved: "As to the measure of damages, in ordinary cases of contract of sale of personal property for future delivery, when the purchaser fails to receive and pay therefor, the measure of damages is the difference between the contract price and the market or current value of the property at the time and place of delivery, and notice from the buyer to the seller, before the day of delivery, that he will not receive the property, does not affect this rule, unless the seller, upon receiving such notice, shall elect to then terminate the contract." Krebs Hop Co. v. Livesley (1911) 59 Or. 574, 114 Pac. 944, 118 Pac. 165, Ann. Cas. 1913C, 758.

So, in Texas, it was also said in a case involving this question: "At the trial the court charged the jury that the measure of damages was the difference between the contract price and the market value of the sugar at the time of the countermand; and, as there had been no change in market value before the countermand, the jury found for the defendant. This charge was erroneous. The defendant had not the right to countermand the order and thereby break the contract. The agreement was clear and unambiguous, and when the minds of the parties met, both were bound by their agreement. The plaintiffs could not be deprived of the benefits to be derived from the contract by the act of the defendant. The contract was executory, no specific property being appropriated to it, and therefore no title ever passed; and, upon a breach by the defendant, plaintiff's remedy was simply an action for damages. The measure of their recovery was compensation for their loss resulting from the refusal of the defendant to perform. Such loss was plainly the difference between the market value of the sugar at Brenham at the time of delivery and the price fixed by the contract. Plaintiffs, by the contract,

were allowed until the appointed time to perform their agreement, and were entitled to such benefit as could be derived from a decline in the market. They had the right to purchase sugar with which to comply with the agreement at any time before delivery. The measure of damages in cases of this character has often been stated and recognized to be the difference between the market value at time and place of delivery and the contract price." Adler v. Kiber (1893) 5 Tex. Civ. App. 415, 27 S. W. 23.

In a case in England it appeared that an action of assumpsit had been brought by the plaintiffs, corn merchants at Gloucester, against the defendant, a miller at Birmingham, for not accepting a quantity of wheat which the plaintiffs, early in the month of January, 1839, contracted to sell to the defendant, "to be delivered at Birmingham as soon as vessels could be obtained for the carriage thereof." The market shortly afterwards began to fall, and the defendant, on the 26th of January, gave notice to the plaintiffs that he would not accept the wheat if it were delivered. It was at that time on its way by canal to Birmingham, and on its arrival there the defendant was required to accept it, but he refused to do so; whereupon this action was brought. At the trial before Alderson, B., the only question between the parties was as to the time at which the damages were to be calculated. The defendant's counsel contended that the proper measure of damages was the difference between the contract price and the market price on the 26th of January, the day when the notice of nonacceptance was given. For the plaintiffs, it was insisted that they were entitled to damages according to the market price on the last day when the contract could have been performed, viz., when the wheat was tendered for acceptance to the defendant. The learned judge was of that opinion, and under his direction a verdict was found for the plaintiffs for £218 9s., the amount of the damages according to the latter computation, leave being reserved to the defendant to move to reduce the

damages to £93 12s. It was said by Parke, B.: "I think the damages have been calculated on the proper principle. If Mr. Richards could have established that the plaintiffs, after the notice given to them, could have maintained the action without waiting for the time when the wheat was to be delivered, then, perhaps, the proper measure of damages would be according to the price at the time of the notice. But I think no action would then have lain for the breach of the contract, but that the plaintiffs were bound to wait until the time arrived for delivery of the wheat, to see whether the defendant would then receive it. The defendant might then have chosen to take it, and would have been guilty of no breach of contract; for all that he stipulates for is that he will be ready and willing to receive the goods, and pay for them at the time when by the contract he ought to do so. His contract was not broken by his previous declaration that he would not accept them; it was a mere nullity, and it was perfectly in his power to accept them nevertheless; and, vice versa, the plaintiffs could not sue him before. The same rule was adopted in the case of Startup v. Cortazzi (1835) 2 Cromp. M. & R. 165, 150 Eng. Reprint, 71, 5 Tyrw. 697, 4 L. J. Exch. N. S. 218. The notice amounts to nothing until the time when the buyer ought to receive the goods, unless the seller acts on it in the meantime and rescinds the contract. I think, therefore, that the damages have been calculated according to the proper principle, and that there should be no rule." Phillpotts v. Evans (1839) 5 Mees. & W. 475, 151 Eng. Reprint, 200.

In Canada, in a case in which it was held that no damages were recoverable where the market price exceeded the contract price at the time when assessed, it appeared that the defendant agreed to sell to the plaintiff a certain quantity of hay in stack for $2,500, of which $2,000 was paid at the time of agreement, the balance to be payable on measurement and delivery. Owing to part of the hay burning before measurement, and to differ

ences between the parties, the measurement of the hay was not completed, and the plaintiff brought action for the return of the $2,000 paid, and interest and damages. The defendant counterclaimed for $500, and by later amendment for damages. The court said: "My conclusion in this case is that the contention made by Mr. McCaig is correct, and that the date of the trial of the action is the date which should be taken as the time for fixing the damages. I held at the trial that Christensen had been wrong in refusing to go on with the measurement of the hay, and my impression at that time was that he was liable in damages for nonacceptance. But the position taken by Chase was this: He did not accept the repudiation of Christensen, but apparently insisted that Christensen was bound to pay him the balance of the purchase money. . . It was only at the trial, as Mr. McCaig points out, that the position was made clear to Chase; namely, that the hay was still his property. I think it was possibly at my own suggestion that Chase was allowed to amend his counterclaim for the purposes of claiming damages, but at any rate no suggestion was then made that he had already sued for damages. It was undoubtedly then understood that Chase's counterclaim was for the balance of the price, and in the circumstances, therefore, I do not think that Chase can contend that he ever accepted the repudiation until the date of the trial. . . In the case of Roth & Co. v. Taysen (1895) 73 L. T. N. S. (Eng.) 628, 8 Asp. Mar. L. Cas. 120, Mathew, J., held that the proper date for fixing the damages sued for by a vendor for nonacceptance was the date of the writ when he began his action for damages, because that was the first indication given that the repudiation had been accepted, although in fact it had been made some two months before. In the present case Chase never really sued for damages for nonacceptance until the amendment was made at trial, and that, I think, was the first time that he accepted the position that Christensen had thrown the hay back on his hands and it was still his own."

The principle on which such rule rests is said to be "that of an indemnification of the injured party for the injury which he has sustained, and, in ordinary cases, the value in the market on the day forms the readiest and most direct method of ascertaining the measure of this indemnity. If the article is bought and sold in the market, the market price shows what pecuniary sum it would take to put the plaintiff in as good a position as if the contract had been performed." Todd v. Gamble (1896) 148 N. Y. 382, 52 L.R.A. 225, 42 N. E. 982.

And in a case in South Carolina it was said: "The measure of the seller's damages for breach of an executory contract for the sale of goods is the difference between the contract price and the market price at the time the goods ought to have been accepted by the purchaser. . . . The reason for applying this measure of damage is that the seller has the right to put the goods on the market after the contract is broken, and obtain the market price. 2 Benjamin, Sales, § 1117. But he cannot sell until the date for acceptance has passed, because until that time the purchaser has the right to take the goods." Huguenot Mills v. Jempson (1904) 68 S. C. 363, 102 Am. St. Rep. 673, 47 S. E. 687.

In this connection it was said in a case in New York: "Evidence as to the price need not be confined to the precise time when the contract was to have been performed. It may sometimes be impracticable to show the price at the precise time, and hence evidence of the price for a brief period before and after the time may be given, not for the purpose of establishing a market price at any other time but for the purpose of showing as well as practicable the market price on the day the contract was to have been performed." Cahen v. Platt (1877) 69 N. Y. 348, 25 Am. Rep. 203. See New York & M. Granite Paving Co. v. Howell (1887) 7 N. Y. S. R. 494.

In another case in New York the court, in referring to the Sales Act and the rule as to the damages re

coverable where a contract to manufacture goods had been repudiated by the buyer, said: "This rule is sound and logical if the contract which has been repudiated is in law a contract to manufacture, and not a contract of sale, or one in which property in the goods to be manufactured was from the inception of the manufacture in the buyer, or one where, upon completion, the buyer could be held liable for the price, but it would seem that it cannot logically be applied to an ordinary action for the sale of future goods where the property in the goods would not pass till delivery, and where the buyer could not be held liable for the price if he failed to take delivery. In the latter case, as stated by Professor Williston in his work on Sales, $587: The character of the breach cannot change the nature of the contract, and the damages must, therefore, be what the injured party suffered or is likely to suffer because of the failure of the defendant at the time he agreed to do so. . . . In any event, though the plaintiff may bring his action at once, his damages must be based on the cost or value of the performance at the time fixed by the contract for that performance, not at the time of the breach.' Under the common-law rules as interpreted by the courts of this state, it was 'held here by a long course of decisions that an agreement for the sale of any commodity at the time but which the vendor is to manufacture or to put in a position to be delivered, such as flour from wheat not yet ground, or nails to be made from iron belonging to a manufacturer, is not a contract of sale. The New York rule lays stress on the word "sale." There must be a sale at the time the contract is made.' Cooke v. Millard (1875) 65 N. Y. 352, 22 Am. Rep. 619. Professor Williston in his work on Sales, § 563, points out that the so-called common-law New York rule as to the nature of the contracts leads logically also to the rule of damages applied in this state upon the breach of such contract, but the common-law New York rule as to the nature of the contract has been changed by § 85 of the Personal Prop

erty Law, so that the contract under consideration is now regarded as a contract of sale, and not of manufacture, and the New York rule in regard to the nature of the seller's right of action is changed by §§ 144 and 145 of the same statute. Since the contract was a contract of sale, and the evidence shows there was an available market for the goods in question, and no special circumstances showing proximate damages of a greater amount such as might arise where the goods were to be manufactured specially for the buyer, and were not readily salable in his own business, the measure of damages is the difference between the market price and the contract price of the goods." Funt v. Schiffman (1921) 115 Misc. 155, 187 N. Y. Supp. 666.

Subsequently, in that state, in a case in which it appeared that the defendant buyer had refused to accept further deliveries under the contract, it was held that, as the plaintiff had at no time notified the defendant that he elected to hold the goods as bailee for it, the correct measure of damages was the difference between the contract price and the market price at the time when the defendant refused to accept the goods. Michael v. Floridine Mfg. Co. (1917) 167 N. Y. Supp. 244.

In the case of a contract for goods to be delivered in instalments, where there is a breach as to the payment for the goods received by the purchaser, it has been held that the seller may treat the contract as at an end, and, in a suit commenced after the expiration of the time for complete performance, recover damages based on the market value at the time when each of the remaining deliveries should have been m and not on

the basis of the value of the entire balance of the goods not delivered at the time for the last delivery. Alpha Portland Cement Co. v. Oliver (1911) 125 Tenn. 135, 38 L.R.A. (N.S.) 416, 140 S. W. 595, Ann. Cas. 1913C, 120, wherein the court said: "When, under the contract, goods are to be delivered by instalments or at stated periods, the time of delivery will be the date

for the delivery of each instalment successively; the damage being the aggregate of these differences, estimated as of these respective dates.

So, the cement company is not entitled to recover from Mr. Oliver, as of the date of the expiration of the contract, the difference between the contract price and the market price of the entire amount of cement he contracted for and failed to take upon the stipulated terms; but, as the cement was to be delivered in instalments of approximately 5,400 barrels per month, it can only recover the sum of the differences between the contract and market price of that number of barrels for each month that the breach existed."

And, in another decision involving the question of damages arising from the repudiation by the buyer of a contract to purchase a certain number of cars of coal per day during a specified period, the court said: "There is nothing in this case to take it out of the general rule for the recovery of damages for the breach of an executory contract of sale, that the measure of damages for such breach by the vendee is the difference between the contract price and the market price at the mine or times and place of the breach. The contract was not one for the manufacture and sale of a particular article or articles of a specified pattern, quality, or kind, for which there is no general demand or market. The testimony of the president of the plaintiff was that the coal had a market value at the mines at the times when the coal was to be delivered. The defendant offered proof of such market value, and the court excluded the proof. In Consolidated Coal Co. v. Jones & A. Co. (1918) 232 III. 326, 83 N. E. 851, which was an action by the vendee to recover damages of the vendor, for the breach of a contract by the latter to deliver certain specified quantities of coal daily for a period of seven months, it was held competent to prove the market price of coal during each month covered by the contract. We think that the trial court erred in excluding the evidence of the market value of the

coal, offered by the defendant, and that for such error the judgment of the superior court must be reversed and the cause remanded." Great Western Coal & Coke Co. v. St. Louis & B. M. Coal Co. (1908) 140 Ill. App. 368.

In another case which arose in Massachusetts, and which also involved a contract to purchase three cars of coal daily between certain dates, the court referred to the Sales Act and said: "Subsection (2), § 53, Gen. Laws, chap. 106, enacts that the measure of damages 'shall be the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract.' Subsection 3 provides, where there is an available market for the goods in question, that the rule of damages, in the absence of 'special circumstances showing proximate damage of a greater amount,' is the difference between the contract price and market price 'at the time 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.' The plaintiff was entitled to the profits of the contract. Subsection 3 of the Sales Act governs the case. There was an available market for the coal, and the plaintiff could recover the difference between the price called for in the contract and the market or current price at the time of the breach of the contract." Garfield & P. Coal Co. v. New York, N. H. & H. R. Co. (1924) Mass. 143 N. E.

312.

In Pennsylvania, in a case which involved a contract for ordinary standard Bessemer pig iron which was not as yet manufactured, and was to be delivered in instalments, it appeared that the buyer, after acceptance of some of the iron, refused to give shipping instructions for the remainder and asked for a cancelation of the contract. In an action begun after the expiration of the time for delivery, the court on appeal said: "This was a contract for the sale of standard Bessemer pig iron. There is nothing special or peculiar about it which would bring it within the rule which permits the vendor, who is the manu