personal property where the price is not paid in advance, and in the former case as well as the latter, the plaintiff is restricted to the difference in market value on the day when the property should have been delivered.(*)

§ 748. No just distinction.-* There appears no solid reason for making any difference between stock and any other vendible commodity. Where stock is loaned, or the price of the article paid for, in either case the party entitled to the delivery parts with his property on the faith of the contract, and in either case is prevented from using it, up to the time of trial. The question is, whether, in either case, the law should act on the assumption that the plaintiff would have retained the property if the contract had been complied with, till the period of the highest value, and have realized that price, and thus give damages which are purely conjectural. It will be noticed that in the case of Clark v. Pinney, it was intimated by the Supreme Court of New York, that the rule ought to be limited to the case of articles intended for sale; and that in Startup v. Cortazzi, it was suggested that the plaintiffs had given no proof of the purpose for which the article was intended; the niceness of the first distinction, the difficulty of furnishing satisfactory proof under the second head, and the general policy of the law which denies conjectural relief, seem strongly to point to the period of breach as the true time, in all cases, of estimating the damages, unless it be shown that the article was to be delivered for some specific object known to both parties at the time, and that thus a loss, within the contemplation of both parties, has been sustained. The fact of payment in advance throws no light on the injury sustained by the purchaser; nor does it at

(*) Belden v. Nicolay, 4 E. D. Smith 14.

§§ 749, 750. RULE WHERE TITLE HAS PASSED.

449

all increase the probability that he would have retained the article till the rise of price. The value of the article at the time of breach, with interest for delay, and subject to the above exception, seems as near an approach to the actual loss sustained as can be effected, without embarking upon a vague search after facts impossible, in most cases, to be proved with any degree of satisfaction.

749. Same reason for rule where property has fallen.— And if this rule be sound, it applies as well to cases where the property has fallen as to those where it has risen. The purchaser claims his advance; but if he gets the value of the article at the time of the breach, the contract is performed; and if this sum be less than his advance, his loss is ascribable purely to his own bargain. It may undoubtedly be urged, and with force, that the contract being violated by the defendant, the retention of any part of the plaintiff's money is against conscience. It has already, however, been said that in actions of contract the only object of the tribunal must be to carry into effect the agreement of the parties as far as possible, and that the motives of the defaulter are not to be taken into view. If this be correct, then certainly it removes the last objection to the adoption of the general rule, that the value at the time of the breach, with interest for the delay, is, with the exception of the defendant's liability to make remuneration for loss resulting from facts within the knowledge and in the contemplation of both parties at the time of the contract, to furnish the measure of damages. **

BREACH BY VENDEE.

§ 750. Rule where title has passed. In these cases the contract fixes the price or it does not. If this point be left doubtful, the value of the article in the market is the VOL. II.-29

rule. (*)* If the vendee resell the article, he can be made liable for the price received, deducting usual charges and commissions. He is treated as a trustee or agent of the plaintiff, selling on his account and for his benefit; and it is both equitable and legal that, having received the money, he should pay it over to the owner, after retaining a due compensation for his services.' But this is a very unusual case, and the contract generally fixes the price.

Where a vendee is sued for non-performance of the contract on his part, in not paying the contract price, if the goods have been delivered, the measure of damages is of course the price named in the agreement;() but if their possession has not been changed, it has been doubted whether the rule of damages is the price itself, or only the difference between the contract price and the value of the article at the time fixed for its delivery. It seems to be well settled in such cases that the vendor can resell them if he see fit, and charge the vendee with the difference between the contract price and that realized at the sale. Though perhaps more prudent, it is not necessary that the sale should be at auction. It is only requisite to show that the property was sold for a fair price.' (*) * But if the vendor does not pursue this course, and without reselling the goods sues the vendee for his breach of contract, the question arises, which we have already

Greene v. Bateman, 2-Woodb. &

M. 359.

2 Langford v. Tyler's Adm'r, I Salk. 113; s. c. 6 Mod. 162; Cuddee v. Rut

ter, 5 Vin. Abr. 538; s. c. Cud v. Rutter, i P. Wms. 570; Sands v. Taylor, 5 Johns. 395.

White v. Kearney, 2 La. Ann. 639.

(*) Henckley v. Hendrickson, 5 McLean 170; Taft v. Travis, 136 Mass. 95;

Deutsch 2. Pratt, 149 Mass. 415; Deck v. Feld, 38 Mo. App. 674; Althouse v. Alvord, 28 Wis. 577.

イ

() Suber v. Pullin, 1 S. C. 273; Phillips v. Merritt, 2 Up. Can. C. P. 513. (c) Crooks v. Moore, 1 Sandf. 297.

§ 751.

INSTANCES.

451

stated, whether the vendor can recover the contract price, or only the difference between that price and the value of the goods which remain in the vendor's hands; and the rule appears to be, that where the title to the goods has passed to the vendee, the vendor can recover the contract price in full.(*)

§ 751. Instances.-* In a suit brought by vendor against vendee, the plaintiff had contracted to sell the defendant three hundred tons of Campeachy logwood; "such as may be determined to be otherwise by impartial judges to be rejected"; the defendant refused to accept the wood offered, because it was not all Campeachy logwood; it was insisted on his behalf that he was not bound by the contract price, as a part only of the stipulated quantity had been furnished; and that the measure of damages was the difference between the contract price and what the article would have sold for at the time when the true quantity of Campeachy logwood was ascertained. But the Court of King's Bench held that the defendant was bound to take the part which was Campeachy, and that, he having repudiated the whole contract, the measure of the damages was the contract price on that quantity, i. e., the Campeachy wood.'

The question has been considered in New York, and decided in the same way. The plaintiff, a carriagemaker, was employed to build a sulky for the defendant. A due tender having been made of the carriage, and it being deposited with a third person, the defendant having refused payment, and suit brought, it was insisted that the measure of damages was not the value of the sulky, but only the expense of taking it to the residence of the 2 Bement v. Smith, 15 Wend. 493. 496.

1 Graham v. Jackson, 14 East 498.

(*) Pearson v. Mason, 120 Mass. 53; Crawford v. Earl, 38 Wis. 312.

defendant, delay, loss of sale, etc.; but the court held otherwise, using this language:

"Upon principle, I may ask what should be the rule? mechanic makes an article to order, and the customer refuses to receive it; is it not right and just that the mechanic should be paid the price agreed upon, and the customer left to dispose of the article as he may? A contrary rule might be found a great embarrassment to trade. The mechanic or merchant, upon a valid contract of sale, may, after refusal to receive, sell the article to another, and sue for the difference between the contract price and the actual sale.

"Where there has been a valid contract of sale, the vendor is entitled to the full price, whether the vendee receive the goods or not. I cannot see why the same principle is not applicable in this case. Here was a valid contract to make and deliver the sulky. The plaintiff performed the contract on his part; the defendant refused to receive the sulky. The plaintiff might, upon notice, have sold the sulky at auction; and if it sold for less than $80 the defendant must have paid the balance. The reason given for this rule by Kent, C. J.,' is, that it would be unreasonable to oblige him to let the article perish on his hands and run the risk of the insolvency of the buyer. But if, after tender or notice, whichever may be necessary, the vendor chooses to run that risk, and permit the article to perish, or, as in this case, if he deposit it with a third person for the use of the vendee, he certainly must have a right to do so, and prosecute for the whole price. Suppose a tailor makes a garment, or a shoemaker a pair of shoes, to order, and performs his part of the contract, is he not entitled to the price of the article furnished? I think he is, and that the plaintiff in this case was entitled to his verdict.' "**

It has been held in Pennsylvania, where goods are sold at auction on credit, and the vendee refuses to take them, the owner may, before the expiration of the credit, sue the vendee for his breach of contract; and in such case, the measure of damages is the difference between the price agreed to be paid for the goods and their value at

1 Sands v. Taylor, 5 Johns. 395, 411.