§ 752. MANUFACTURED ARTICLES. the time that the vendee refused to take them. 1 * 453 This is clearly so, because no action can be brought for the price of the goods until the time of credit is expired. But in this case, Gibson, J., proceeded to say: "Properly speaking, the seller cannot recover the price where he has retained the goods in consequence of the buyer's refusing to comply with any part of the contract." So in Massachusetts, where a contract had been made for the purchase of railway shares, and a part of the price paid, and the vendor caused them to be transferred on the books of the company, but the defendant refused to accept them after such transfer, it was held that the measure of damages was the contract price.' 2** § 752. Manufactured articles-Minerals and gravel.—A contract for the manufacture of a certain article is in some jurisdictions regarded as a contract for work and labor; in others, as a contract of sale. In the former case the title to the finished article is in the party who orders the article; in the latter case it may be in one party or the other, according to circumstances. In either case, however, if the title is regarded by the court as being in the defendant, the manufacturer should be allowed the full contract price.(*) If the title is still in the manufacturer, the plaintiff can recover the difference between the contract price and the cost of manufacture,(") since that, and not the market price, if any there is, would be the cost to the plaintiff, and would be the proper amount to deduct from the contract price in order to arrive at his net loss. 1 Girard v. Taggart, 5 S. & R. 19, 34. Thompson v. Alger, 12 Met. 428. (*) Bookwalter v. Clark, 11 Biss. 126; Gordon v. Norris, 49 N. H. 376; Shawhan v. Van Nest, 25 Oh. St. 490; Ballentine v. Robinson, 46 Pa. 177. (*) Knowlton v. Oliver, 28 Fed. Rep. 516; Geiss v. Hardware Co., 37 Kas. 130; Rayburn v. Comstock, 80 Mich. 448; Black River L. Co. v. Warner, 93 Mo. 374; Muskegon C. R. Co. v. Keystone Mfg. Co., 135 Pa. 132. The same rule has been followed in an action for breach of contract to purchase gravel of the plaintiff,(*) and for breach of contract to purchase coal from the owner of the mine.(*) $753. Rule where title has not passed.-Where the title has not passed, the measure of damages is the difference between the contract and the market price of the article at the time when and the place where it should have been accepted. (*) "The vendor of personal property in a suit against the vendee for not taking and paying for the property," said Earl, C., in Dustan v. McAndrew, (d) "has the choice ordinarily of either one of three methods to indemnify himself: (1) He may store or retain the prop (*) Hare v. Parkersburg, 24 W. Va. 554. (1) Scott v. Kittanning Coal Co., 89 Pa. 231. (c) Hickman v. Haynes, L. R. 10 C. P. 598; Knowlton v. Oliver, 28 Fed. Rep. 516; Haskell v. McHenry, 4 Cal. 411; Groover v. Warfield, 50 Ga. 644; Camp v. Hamlin, 55 Ga. 259; Georgia R. Co. v. Augusta O. Co., 74 Ga. 497; McNaught v. Dodson, 49 Ill. 446; Ullmann v. Kent, 60 Ill. 271; Burnham v. Roberts, 70 Ill. 19; Sanborn v. Benedict, 78 Ill. 309; Kadish v. Young, 108 Ill. 170; Thurman v. Wilson, 7 Ill. App. 312; Pittsburgh, C. & St. L. Ry. Co. v. Heck, 50 Ind. 303; Dwiggins v. Clark, 94 Ind. 49; McComas v. Haas, 107 Ind. 512; Harris Manuf. Co. v. Marsh, 49 Ia. 11; Williams v. Jones, 1 Bush 621; Collins v. Delaporte, 115 Mass. 159; Whitney v. Thacher, 117 Mass. 523; Brownlee v. Bolton, 44 Mich. 218; Whitmore v. Coats, 14 Mo. 9; Northrup v. Cook, 39 Mo. 208 (semble); Black River L. Co. v. Warner, 93 Mo. 374; Dodge v. Kiene, 44 N. W. Rep. 191 (Neb.); Stevens v. Lyford, 7 N. H. 360; Gordon v. Norris, 49 N. H. 376; Haines v. Tucker, 50 N. H. 307; Pollen v. Le Roy, 30 N. Y. 549; Dustan v. McAndrew, 44 N. Y. 72; Hayden v. Demets, 53 N. Y. 426; Bridgford v. Crocker, 60 N. Y. 627; Cahen v. Platt, 69 N. Y. 348; Canda v. Wick, 100 N. Y. 127; Billings v. Vanderbeck, 23 Barb. 546; Mallory v. Lord, 29 Barb. 454 ; Hewitt v. Miller, 61 Barb. 567; Clements v. State, 77 N. C. 142; Nixon v. Nixon, 21 Oh. St. 114; Cullen v. Bimm, 37 Oh. St. 236; Weltner v. Riggs, 3 W. Va. 445; Hall v. Pierce, 4 W. Va. 107; James v. Adams, 8 W. Va. 568 ; S. C. 16 W. Va. 245; Ganson v. Madigan, 13 Wis. 67; Chapman v. Ingram, 30 Wis. 290; Chapman v. Larin, 4 Can. 349; Boswell v. Kilborn, 6 Low. Can. Jur. 108; Moore v. Logan, 5 Up. Can. C. P. 294. (1) 44 N. Y. 72, 78; acc. Dwiggins v. Clark, 94 Ind. 49. § 753 RULE WHERE TITLE HAS NOT PASSED. 455 erty for the vendee, and sue him for the entire purchase price; (2) He may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; (3) He may keep the property as his own, and recover the difference between the market price at the time and place of delivery and the contract price." Where a purchaser extends the time for the delivery of goods, the vendor, suing for a failure to accept, recovers the difference between the contract price and the value at a reasonable time after a final demand for the vendee to take them.(*) The market price at the place to which the defendant intended to ship the goods cannot be taken.() Where the contract price and the market price are the same, only nominal damages can be recovered; (°) and the same is true where the sale is at such price as should be mutually agreed upon. (4) So where the plaintiff has upon.(a) not the goods that he agrees to sell, but makes a sidecontract with another party to furnish them, he will only be allowed to recover the difference between the original contract price and the market price at the time of the offer, with interest.' If the property is worthless in the hands of the plaintiff, the whole price agreed should be recovered.() Where a quantity of straw was sold, a portion of which only was taken away, and the buyer subsequently refused to take the remainder, the vendor threw it, the next spring, it having become damaged, into is said a portion of the property was ready to be delivered. Stanton v. Small, 3 Sandf. 230. So, too, in Ohio, M'Naughter v. Cassally, 4 M'Lean 530; though in this case it (^) Hickman v. Haynes, L. R. 10 C. P. 598; Smith v. Snyder, 77 Va. 432. (*) Cahen v. Platt, 69 N. Y. 348. () Ellithorpe A. B. Co. v. Sire, 41 Fed. Rep. 662; Foos v. Sabin, 84 Ill. 564; Wire v. Foster, 62 Ia. 114. (4) Smith v. Loag, 132 Pa. 301. (*) Allen v. Jarvis, 20 Conn. 38. the barn-yard to his cattle. Held, that the measure of damages against the vendee for refusing to complete his contract was the contract price, less its value to the vendor for the use to which it was applied. (*) When there is no market at the place of delivery the price of getting the goods to the nearest market is to be subtracted from the price at that market in order to find the value at the place of delivery.(") $754. Rescission.-The question of the rescission of a contract must not be confounded with the question of breach. It is settled that a breach may arise by refusal of one of the parties to go on with performance.() This, however, is not rescission. Parties can only rescind a contract by annulling it, or withdrawing themselves from it altogether, in which case it is as if it had never been made. In such an event, it would seem that properly speaking damages for a breach should not be allowed; the plaintiff should recover, not on the basis of the contract, but as if no contract had been made. And so where plaintiff and defendant contracted for the sale of 50,000 bricks, and the plaintiff delivered 20,000, when the defendant wrongfully refused to receive any more and the plaintiff treated the contract as rescinded, it was held that plaintiff was entitled to recover the full market value of those delivered.(4) But where the defendant refused to fulfil his agreement to take back stock he had sold the plaintiff, this was regarded by the court as a rescission of the contract of sale, only so far as to revest the title to the stock in the defendant; and the plaintiff was allowed to recover the full price agreed upon.(*) (*) Chamberlain v. Farr, 23 Vt. 265. (*) Laubach v. Laubach, 73 Pa. 387; acc. Thorndike v. Locke, 98 Mass. 340. § 755 RESALE AFTER DEFAULT. 457 755. Resale after default. It is often said that where the vendor resells the property, the difference between the price obtained at the resale and the contract price is absolutely the measure of damages; (*) or, more exactly, the difference between the net proceeds of the resale (the price obtained less the expense) and the contract price.(*) But in other cases it is more properly held that the price obtained at the resale is only evidence of the market value.(*) It is sometimes held that the price obtained on resale will be binding on the defendant if he had notice of the resale. (*) Where the sale is made by one acting in an official capacity, as an administrator, the difference between the prices of the two sales is, it would seem, the absolute measure of damages. (*) A resale will not furnish the measure of damages, if it does not take place within a reasonable time after the failure to accept. In Smith v. Pettee,() it was held that four months was not a reasonable time. The question must be determined by all the circumstances. In a case of the sort under discussion, where, after notice, the seller resold the goods at auction, the Court of Appeals of New York said:(") "The price (*) Pope v. Filley, 3 McCr. 190; Saladin v. Mitchell, 45 Ill. 79; McLean v. Richardson, 127 Mass. 339; Black River L. Co. v. Warner, 93 Mo. 374; Townshend v. Simon, 38 N. J. L. 239; Tompkins v. Haas, 2 Pa. St. 74; Tindle's Appeal, 77 Pa. 201; James v. Adams, 8 W. Va. 568; Pickering v. Bardwell, 21 Wis. 562; Brunskill v. Mair, 15 Up. Can. Q. B. 213. () Whitney v. Boardman, 118 Mass. 242; Whitmore v. Coats, 14 Mo. 9; Sawyer v. Dean, 114 N. Y. 469. (c) Camp v. Hamlin, 55 Ga. 259; Atkins v. Cobb, 56 Ga. 86; Ullmann v. Kent, 60 Ill. 271; Croak v. Owens, 121 Mass. 28; Freyman v. Knecht, 78 Pa. 141. (4) Bagley v. Findlay, 82 Ill. 524; Rickey v. Tenbroeck, 63 Mo. 563; Pollen v. Le Roy, 30 N. Y. 549. (*) Alexander v. Herring, 54 Ga. 200; Gaskell v. Morris, 7 W. & S. 33. (1)7 Hun 334. (*) Bigelow v. Legg, 102 N. Y. 652. |