If there be no market at that place, then the value at the nearest available market furnishes the basis, less the cost of transportation.1

If no evidence of such market value is given, nominal damages only can be recovered; and this, of course, would be the extent of the recovery if there were no excess of the contract price over the market value."

§ 1691. Time for delivery.- Where the contract fixes the time for delivery, that time will usually control. If the time for delivery has been postponed at the request of the buyer, then the market value at the postponed time furnishes the basis. If no time were fixed, then, as has been seen," a rea

Gehl v. Milwaukee Produce Co. (1900), 105 Wis. 573, 81 N. W. R. 666.

1 Thus, in Barry v. Cavanagh (1879), 127 Mass. 394, where there was default by the purchaser in taking paving stones at a place named-Dover Street Bridge, near Boston-where there was no market, and Boston was the nearest market, the court said: "The plaintiffs, if entitled to recover, were entitled to such sum in damages as would put them in as good condition as if the defendants had fulfilled their contract. That is to say, they ought to have such sum of money as, added to the value of the goods where they lay, would put them into the same financial condition as if the defendants had accepted them and paid the contract price for them. Now, if, when they were brought to Dover Street Bridge, where there was no market for them, it would cost all they would sell for at a market to carry them to the market, they were valueless there, and they would be entitled to recover the contract price in order to be made whole. If they [the stones] could be conveyed to a market for a part of what they would sell for,

they were worth at the bridge the market price less the cost of getting them to the market, and the true rule would be the difference between what they were so worth and the contract price. Stated otherwise, if they were salable where they lay, to be delivered elsewhere at a price larger than the cost of delivery there, the excess of such price above the cost of delivery was the market value, which should have been deducted from the contract price, in order to get at the damages."

Where the buyer controls the market at the time and place of delivery, then also the measure is the difference between the contract price and the market price at the nearest available market, less the cost of transportation to that market. Yellow Poplar Lumber Co. v. Chapman (1896), 20 C. C. A. 503, 74 Fed. R. 444.

2 Tufts v. Bennett (1895), 163 Mass. 398, 40 N. E. R. 172.

3 Foos v. Sabin (1877), 84 Ill. 564.

4 Hickman v. Haynes (1875), L. R. 10 Com. Pl. 598. Accord: Ogle v. Lord Vane (1868), L. R. 2 Q. B. 275, 3 id. 272.

5 See ante, § 1129.

sonable time will be presumed, and the buyer's refusal to take the goods when tendered within a reasonable time will charge him with the liability.1

§ 1692. How market value shown - Resale.- What this market value is may ordinarily be shown by any competent evidence. It seems to be thought at times that the vendor must resell the goods, and that he does so in some sense as the agent of the vendee; but this is not true: the title to the goods by the hypothesis is still in the seller, and he may resell them or not as he chooses. If he does resell, he does so for the purpose of making evidence for himself and not as agent of the buyer. Without reselling, he may show the market value by the opinion of those familiar with the facts; or, by reselling, under proper circumstances and within a reasonable time, he may establish what the market value of the goods in question actually was at the time in controversy.*

§ 1693.

Scope of evidence.- "Evidence as to the price," it is said in a well-considered case," "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 pur

1 See Mayne on Damages (6th ed.), 185. Where the goods are to be delivered when the buyer gives notice that he is ready to receive them, he is bound to give such notice within a reasonable time; and if he fails to. do so, the seller may offer to deliver the goods without such notice and the purchaser is bound to accept and pay the price. Sanborn v. Benedict (1875), 78 Ill. 309.

2 See Moore v. Potter (1898), 155 N. Y. 481, 50 N. E. R. 271, 63 Am. St. R. 692, more fully referred to ante, § 1629, 1630.

Girard v. Taggart (1819), 5 Serg. & R. (Pa.) 19, 9 Am. Dec. 327; Andrews v. Hoover (1839), 8 Watts (Pa.), 239; Graham v. Maitland (1869), 6 Abb. (N. Y.) Pr. (N. S.) 327, 37 How. Pr. 307.

4 See ante, § 1643. Must act with due diligence. Gehl v. Milwaukee Produce Co. (1900), 105 Wis. 573, 81 N. W. R. 666.

5 Cahen v. Platt (1877), 69 N. Y. 348, 25 Am. R. 203 [citing Dana v. Fiedler, 12 N. Y. 40; Dustan v. McAndrew, 44 N. Y. 72; Durst v. Burton, 47 N. Y. 167].

pose of showing as well as practicable the market price on the day the contract was to have been performed. So it may not always be practicable to show the price at the precise place of delivery. There may have been no sales of the commodity there, and hence evidence of the price at places not distant, or in other controlling markets, may be given, not for the purpose of establishing a market price at any other place, but for the purpose of showing the market price at the place of delivery."

§ 1694. Full contract price after tender allowed in some cases.-There are, indeed, authorities which permit the seller, upon a tender of performance and a constructive delivery of the goods to the buyer, to recover the full price notwithstanding the buyer's refusal to receive them;1 but as applied to chattels generally which have a market value, the weight of authority is in favor of the allowance of damages only.

§ 1695. Contracts for sale of stocks.-The rule permitting a recovery of the price has, in Massachusetts and elsewhere, been applied "to contracts for the sale of stock in corporations, where the vendor has before trial duly tendered the stock or offered to transfer it, and has renewed the tender or offer in court at the trial."

§ 1696.

Contracts for manufacture of chattels.-So, also, as has been seen, upon a contract for the manufacture of

1 See Webber v. Minor (1869), 6 Bush (Ky.), 463, 99 Am. Dec. 688 [though mere tender was here held not enough]; Lincoln Shoe Mfg. Co. v. Sheldon (1895), 44 Neb. 279, 62 N. W. R. 480 [overruled on this point by Funke v. Allen (1898), 54 Neb. 407, 74 N. W. R. 832, 69 Am. St. R. 716]; Black River Lumber Co. v. Warner (1887), 93 Mo. 374, 6 S. W. R. 210 [though the court said that it was not prepared to say that the rule should be applied in cases of sales of ordinary goods, wares and merchandise]:

Crown Vinegar Co. v. Wehrs (1894), 59 Mo. App. 493; Mitchell v. Le Claire (1896), 165 Mass. 308, 43 N. E. R. 117. 2 Funke v. Allen, supra; White v. Solomon (1895), 164 Mass. 516, 42 N. E. R. 104, 30 L. R. A. 537.

3 Per Field, C. J., in White v. Solomon, supra, citing Thorndike v. Locke, 98 Mass. 340; Pearson v. Mason, 120 Mass. 53; Thompson v. Alger, 12 Metc. 428, 443. So also in Lincoln Shoe Mfg. Co. v. Sheldon, supra.

a chattel it has been held in many cases that the title passes when the article has been produced and tendered to the other, and the full contract price may therefore be recovered, the chattel being regarded as the property of the buyer.1

§ 1697.

Contract for production of that which has no market value. And so in cases of contracts for the manufacture or production of that which has no market value, as, for example, a portrait, a bust, an article of wearing apparel suited only to the person for whom it was designed, a model for an invention, a patented article, which is of value only to the person ordering it, if to any one, and the material in which has been rendered valueless for any other use, it is held, and properly, that the contract price may be recovered.2

1 See ante, § 754 et seq., where this subject is discussed. In accordance with this view, it is said in Black River Lumber Co. v. Warner (1887), 93 Mo. 374, 6 S. W. R. 210, "where the subject-matter of the contract is a specific chattel to be manufactured by the vendor for the vendee, and the vendor has completed his contract and performed all that the contract requires him to do, it is but just and fair that his damages, in case of a refusal of the vendee to accept the article, should be the contract price. The vendor will, of course, in such case, hold the property for the vendee." Citing Shawhan v. Van Nest, 25 Ohio St., 490, 18 Am. R. 313; Mechem's Cas. on Damages, 262; Ballentine v. Robinson, 46 Pa. St. 177; Smith v. Wheeler, 7 Oreg. 49.

So in McCormick Harv. Mach. Co. v. Markert (1899), 107 Iowa, 340, 78 N. W. R. 33, the court, quoting from Moline Scale Co. v. Beed (1879), 52 Iowa, 307, 35 Am. R. 272, says that the rule in these cases is that "when everything has been done by the

vendor which he is required by his contract to do, and the manufactured property, in its completed condition, is tendered to the purchaser and he refuses to receive it, and it is held by the vendor for the purchaser, the vendor may recover the contract price." The result of the judgment, adds the court, "in such cases would be to vest in the purchaser the title to the property."

This is,

2 So held, for example, in Allen v. Jarvis (1849), 20 Conn. 38, where the court said: “The rule of damages, in an action for the non-acceptance of property sold or contracted for, is the amount of the actual injury sus tained by the plaintiff in consequence of such non-acceptance. ordinarily, the difference between the price agreed to be paid for it and its value, where such price exceeds its value. If it is worth that price, the damages are only nominal. But there may be cases where the property is utterly worthless in the hands of the plaintiff, and there the whole price agreed to be paid should be recovered. The present appears to us

§ 1698. This not the general rule. But "in an ordinary contract of sale," as is said by the court in Massachusetts, "the payment and the transfer of the goods are to be concurrent acts, and if the buyer refuses to accept the goods, even wrongfully, he cannot be sued for the price, because the event on which he undertook to pay the price has not happened; and although the fact that it has not happened is due to his own wrong, still he has not promised to pay the price in the present situation, but must be sued for his breach of contract in preventing the event on which the price would be due, from coming to pass. The damages for such a breach necessarily would be diminished by the fact that the vendor still had the title to the goods."

§ 1699. Countermanding performance of executory contract. As has been already seen,' one party to an executory contract has always the right, subject to the obligation to pay damages to the other, to stop the performance of the contract whenever for any reason he deems it to his interest to terminate it, and the other party is not at liberty to proceed thereafter with the performance in order to enhance the damages to be paid.3

to be a case of this description. The articles contracted for were those for the exclusive right of making and vending which the defendant had obtained a patent. They could not be lawfully sold by the plaintiffs; and were therefore worthless to them in the form in which they were when they were to be received by the defendant. And there is no evidence to show that the materials of which they were made could be converted to any other useful purpose. We do not think that, under these circumstances, the defendant can justly require us to set aside the verdict because the jury have given the full amount which he agreed to pay." To

same effect: Marshall v. Macon County Savings Bank (1891), 108 N. C. 639, 13 S. E. R. 182.

1 Per Holmes, J., in White v. Solomon (1895), 164 Mass. 516, 42 N. E. R. 104, 30 L. R. A. 537. See the discussion in Morris v. Cohn (1891), 55 Ark. 401, 18 S. W. R. 384. See also the many cases cited under the general rule, ante, § 1407.

2 See ante, § 1091.

3 Clark v. Marsiglia (1845), 1 Den. (N. Y.) 317, 43 Am. Dec. 670; Davis v. Bronson (1891), 2 N. Dak. 300, 50 N. W. R. 836, 33 Am. St. R. 783, 16 L. R. A. 655, and many other cases cited in the section above referred to.