§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 ** 8734. 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 Hun 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, 1 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. Hallınan, 13 Up. Can. Q. B. 440. (1) Faulkner v. Closter, 79 Ia. 15; Currie v. White, 6 Abb. (N. S.) 352, § 734. GENERAL RULE. 425 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.' (4) 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. (d) 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. required to accept part only of the goods. Where the defendant contracted to deliver his crop of corn growing on about 30 acres of ground in merchantable order at a stipulated time and price, and one-fourth of the crop only turned out sound, and he refused to deliver that portion only, but insisted on delivering the whole, if any, it was held a breach of the contract, and the vendees were held entitled to recover the difference between the contract price and the market value of the merchantable corn on the ground.(*) Where the goods are delivered after the time fixed by the contract, but are accepted by the purchaser, the latter is entitled to recover the difference in the market value of the goods at the time when they should have been delivered and when they were delivered.(*) $735. Reason for it generally given doubtful.-It has been so often said that the reason for the rule is as just stated -that the plaintiff's loss is measured by the market value of the article, because for this sum he can replace himself,-that it is with great hesitation that we venture to make even a suggestion to the contrary; but it must be said that an explanation given in an English case frequently cited to another point seems much simpler, and much more in accordance with principle. In Startup v. Cortazzi (©) it was intimated that the reason of the rule is that the market value represents what the plaintiff would hvae got on a resale, that is, the true value of his bargain. This does not mean that he buys necessarily for a resale; but that what the article would bring in any one's hands on a resale, is that value to (*) Hamilton v. Ganyard, 34 Barb. 204. () Whalon v. Aldrich, 8 Minn. 346; Boomer v. Flagler, 51 N. Y. Super. Ct. 211. () 2 C. M. & R. 165. § 736. FAILURE TO DELIVER STOCK. 427 which he is entitled. The notion of a general practice of replacement is objectionable for a variety of reasons. In the first place, it does not correspond to the facts. A person failing to receive an article bought can be under no absolute duty to society or his vendor to replace himself, nor can it be said that it is so universally done that it is an expected act from one in such a position. But in the second place, if it were, and the doctrine of replacement were supposed to be an invariable rule of law, how are we to explain the rule that the law measures the damages at the very instant of breach? Is it to be supposed that at the very instant of breach every one who has made a contract is in the market ready to replace himself? If not, the rule, if founded on the reason given, ought to be the difference between the contract and the market price within a reasonable time after notice for replacement. But outside of a few jurisdictions which have established such a rule in contracts of a peculiar character,(*) we know of no authority for it. The doctrine of replacement has undoubtedly a peculiar fitness in one class of sales or agreements for the future delivery of articles-where the defendant has notice of a sub-contract which makes it necessary that the plaintiff should replace himself. But we think that the repeated assertion that the reason of the rule of damages in sales is that the purchaser can go into the market and replace himself has a tendency to breed confusion in the whole subject. 736. Failure to deliver stock. In case of a refusal to deliver stock which is to be paid for, the measure of damages is governed by the same principles. () * So in an action for the non-delivery of railway shares on a given (*) See chapter on Higher Intermediate Value. |