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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;' 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." 3

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$ 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 Crown Vinegar Co. v. Wehrs (1894), Bush (Ky.), 463, 99 Am. Dec. 688 59 Mo. App. 493; Mitchell v. Le Claire [though mere tender was here held (1896), 165 Mass. 308, 43 N. E. R. 117. not enough); Lincoln Shoe Mfg. Co. 2 Funke v. Allen, supra; White v. 1. Sheldon (1895), 44 Neb. 279, 62 N. Solomon (1895), 164 Mass. 516, 42 N. W. R. 480 (overruled on this point by E. R. 104, 30 L. R. A. 537. Funke v. Allen (1898), 54 Neb. 407, 74 3 Per Field, C. J., in White v. SoloN. W. R. 832, 69 Am. St. R. 716]; Black mon, supra, citing Thorndike v. River Lumber Co. v. Warner (1887), Locke, 98 Mass. 340; Pearson 93 Mo. 374, 6 S. W. R. 210 [though the Mason, 120 Mass. 53; Thompson v. court said that it was not prepared Alger, 12 Metc. 428, 413. So also in to say that the rule should be ap- Lincoln Shoe Mfg. Co. v. Sheldon, plied in cases of sales of ordinary supra. goods, wares and merchandise]:

V.

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.'

$ 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.?

1 See ante, & 754 et seq., where this vendor which he is required by his subject is discussed. In accordance contract to do, and the manufactured with this view, it is said in Black property, in its completed condition, River Lumber Co. v. Warner (1887), is tendered to the purchaser and be 93 Mo. 374, 6 8. W. R. 210, “where refuses to receive it, and it is held by the subject matter of the contract is the vendor for the purchaser, the a specific chattel to be manufactured vendor may recover the contract by the vendor for the vendee, and price.” The result of the judgment, the vendor has completed his con- adds the court, “in such cases would tract and performed all that the con- be to vest in the purchaser the title tract requires him to do, it is but to the property." just and fair that his damages, in ? So held, for example, in Allen v. case of a refusal of the vendee to ac- Jarvis (1849), 20 Conn. 38, where the cept the article, should be the con- court said: “The rule of damages, in tract price. The vendor will, of an action for the non-acceptance of course, in such case, hold the prop- property sold or contracted for, is erty for the vendee.” Citing Shaw- the amount of the actual injury sus han v. Van Nest, 25 Ohio St.,490, 18 tained by the plaintiff in consequence Am. R. 313; Mechem's Cas. on Dam- of such non-acceptance. This is. ages, 262; Ballentine v. Robinson, 46 ordinarily, the difference between Pa. St. 177; Smith v. Wheeler, 7 Oreg. the price agreed to be paid for it and 49.

its value, where such price exceeds So in McCormick Harv. Mach. Co. its value. If it is worth that price, v. Markert (1899), 107 Iowa, 340, 78 N. the damages are only nominal. But W. R. 33, the court, quoting from there may be cases where the prop Moline Scale Co. v. Beed (1879), 52 erty is utterly worthless in the hands Iowa, 307, 35 Am. R. 272. says that of the plaintiff, and there the whole the rule in these cases is that “when price agreed to be paid should be reeverything has been done by the covered. The present appears to us

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$ 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.

to be a case of this description. The same effect:Marshallv. Macon County articles contracted for were those Savings Bank (1891), 108 N. C. 639, 13 for the exclusive right of making S. E. R. 182. and vending which the defendant 1 Per Holmes, J., in White v. Solohad obtained a patent. They could mon (1895), 164 Mass. 516, 42 N. E. R. not be lawfully sold by the plaintiffs; 104, 30 L. R. A. 537. See the discusand were therefore worthless to them sion in Morris v. Cohn (1891), 55 Ark. in the form in which they were when 401, 18 S. W. R. 384. See also the they were to be received by the de- many cases cited under the general fendant. And there is no evidence rule, ante, § 1407. to show that the materials of which 2 See ante, $ 1091. they were made could be converted 3 Clark v. Marsiglia (1845), 1 Den. to any other useful purpose. We do (N. Y.) 317, 43 Am. Dec. 670; Davis not think that, under these circum- v. Bronson (1891), 2 N. Dak. 300, 50 stances, the defendant can justly re- N. W. R. 836, 33 Am. St. R. 783, 16 quire us to set aside the verdict be- L. R. A. 655, and many other cases cause the jury have given the full cited in the section above referred to. amount which he agreed to pay.” To

$ 1700.

Countermanding order after part delivery.Where, therefore, after delivery and acceptance in part, the buyer refuses to accept the residue, the seller, if the contract is entire, may doubtless deem the refusal as a repudiation of the whole contract and repudiate on his own part as to that already delivered; or he may treat it as - severable, in which case the seller is entitled to the contract price for that delivered and to damages for the refusal to accept the residue. Subject to the qualifications already mentioned, those damages, as has been seen, will be the difference between the contract price and the market price at the time and place of delivery agreed upon,

$ 1701. Countermanding order for goods when partly manufactured.- So where there has been an order for goods to be manufactured, and before their manufacture is complete the buyer countermands the order, the seller, as has been seen, is not usually at liberty to proceed to complete them on the buyer's account;? but, accepting the countermand as a breach

1 See ante, $ 1091.

fendant could deprive it of this 2 In Southern Cotton Oil Co. v. Hef. right.” The measure of damages was lin (1900, U. S. App.), 99 Fed. R. 339, 39 declared to be the difference between C. C. A. 546, the plaintiff was a manu- the contract price and the market facturer of cotton-seed products, and price, and in support of this rule the made a contract with defendant to court said: “The plaintiff was not sell to him all the cake and meal to making one product only; it was be produced by its mill during the making several, obtained from the year. After receiving part of it, the same perishable raw material. All defendant gave notice that he would were made for sale. The meal sold receive no more, but the plaintiff to the defendant was not the chief continued to manufacture it, and product. When notified by the detendered the balance, which was re- fendant that he would not take the fused. The court held that “when meal, the plaintiff could not quit the defendant gave notice that he making it without stopping the mill would not receive the meal, he could and abandoning its business of maknot have complained if the plaintiff ing other products. To do this the had acted upon the notice and sued plaintiff would violate its other conhim at once. But he could not re- tracts as to oil, hulls and lint. The quire the plaintiff to recede from its case is not analogous to a contract to contract. The plaintiff had a vested make a soda-water apparatus, as in right in the contract to deliver the Tufts v. Lawrence, 77 Tex. 526, where meal sold at the time fixed by the only one chattel and two contracting agreement, and no notice of the de- parties are concerned; nor is it

of the contract, the seller may recover the damages which he has sustained by reason of not being permitted to complete the contract. In such a case he cannot sue for work and labor done and materials furnished, because the materials are his own and the labor has been expended on his own materials. He has lost the profit he would have made had he been permitted to complete the contract, and if the value of that which is completed is less than the cost for material and labor to produce it, he has lost that in addition. Compensation for these two items should be the measure of his damages.?

$ 1702. Countermanding order before manufacture begun.- Where, however, before the manufacture is begun the buyer countermands the order or repudiates the contract, the seller is not at liberty to proceed to complete the goods for the purpose of enhancing the damages, nor will he be permit

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strictly analogous to a contract to performance. The first item he may manufacture corn shellers, as in recover in all cases. The second he Kingman & Co. v. Western Mfg. Co., may recover when the profits are the 34 C. C. A. 489, 92 Fed. R. 486, where direct fruit of the contract and not only one thing is being produced out too remote or speculative." of the same raw material.

It is true that it is said in Tufts v. The courts may say in some cases Lawrence (1890), 77 Tex. 526, 14 S. W. that the work should be stopped on R. 165, and Heiser v. Mears (1897), 120 notice by one party of an abandon- N. C. 443, 27 S. E. R. 117, that the ment of the contract, but in a case measure of damages is the difference like the present one it would be im- between the contract price and the possible to fairly apply such a rule." value of the goods at the time of re

1 Hosmer v. Wilson (1859), 7 Mich. pudiation, but this is obviously un294, 74 Am. Dec. 716; Mechem's Cas. sound. Under such a rule, the less on Damages, 269; Unexcelled Fire- the seller has done towards performworks Co. v. Polites (1890), 130 Pa. ance the more he can recover. St. 536, 18 Atl. R. 1058, 17 Am. St. R. 3 Ante, & 1092; Hosmer v. Wilson 788.

(1859), 7 Mich. 294, 74 Am. Dec. 716; 2. As stated in Southern Cotton Oil Mechem's Cas. on Damages, 269; DanCo. v. Heflin (1900), 39 C. C. A. 546, 99 forth v. Walker (1864), 37 Vt. 239; Fed. R. 339, the measure of the dam. Dillon v. Anderson (1870), 43 N. Y. ages to be recovered by the seller 231; Unexcelled Fireworks Co. v. Po“is (1) his outlay and expenses, less lites (1890), 130 Pa. St. 536, 18 Atl. R. the value of materials on hand; (2) the 1058, 17 Am. St. R. 788. profits he might have realized by

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