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renounce his repudiation, and have the goods upon payment of the price. He will also be entitled to the benefit of changes in the market value at the time of ascertaining the damages.»

$ 1709. Measure of damages if seller does treat it as a present breach,— But while the seller is thus not obliged to treat the repudiation as a present breach, he may do so, and if

, he does he may proceed to recover his damages as for a total breach of the entire contract. The measure of damages in such a case will be the difference between the contract price and what it would have cost him to produce and deliver the goods according to the contract," — in addition, of course, to payment

whereby the plaintiffs agreed to sell ported by the "overwhelming preand the defendant to buy five thou- ponderance” of authority. sand bags of sugar, at a specified 1 See ante, $ 1090. But he may not price, to be shipped during the fol- do this where the seller, in reliance lowing June or July from Holland upon the repudiation, has changed to New York or Baltimore. Before his position, as by reselling the goods the contract had been performed or to another person. Windmuller v. the time for performance had ex. Pope (1887), 107 N. Y. 674, 14 N. E. R. pired, the defendant stated to the 436. plaintiffs that he did not intend to 2 Stokes v. Mackay (1895), 147 N. Y. carry out the contract and would 223, 41 N. E. R. 496. have nothing to do with it, where

3 See Kadish v. Young, supra. upon he was notified by the plaintiff's 4 Masterton v. Mayor of Brooklyn that they would dispose of the sugar (1845), 7 Hill (N. Y.), 61, 42 Am. Dec. elsewhere and would hold him re- 38; Mechem's Cases on Damages, 141; sposible for any loss. This action Tahoe Ice Co. v. Union Ice Co. (1895), was soon after brought. It was held 109 Cal. 242, 41 Pac. R. 1020; Hale v. by the circuit court, and affirmed by Trout (1868), 35 Cal. 229; Philadelphia, the circuit court of appeals, that the etc. R. Co. v. Howard (1851), 54 U. S. plaintiffs were justified in treating (13 How.) 307; Burrell v. New York the unequivocal refusal of defendant Salt Co. (1865), 14 Mich. 34; Goodrich to perform as a present breach of the v. Hubbard (1883), 51 Mich. 62, 16 N. contract, if they chose so to do, and W. R. 232; Atkinson v. Morse (1886), their right of action for damages 63 Mich. 276, 29 N. W. R. 711; Leonwould not be prejudiced thereby. In ard v. Beaudry (1888), 68 Mich. 312, 36 the opinion of the court this right to N. W. R. 88; Fell v. Newberry (1895), elect whether to treat the contract 106 Blich. 542, 64 N. W. R. 474; Baras terminated or as still existing, rett v. Veneer Works (1896), 110 Mich. with a present right of action in case 6, 67 N. W. R. 976; Industrial Works it is considered terminated, is sup- v. Mitchell (1897), 114 Mich. 29, 72 N.

W. R. 25.

.

2

for what had already been delivered at the time of the repudiation.

This loss of profits is regarded as the direct and natural result of the breach of contract, and may be recovered as general damages without resorting to special allegations.

$ 1710, — As of what date, however, the damages are to be estimated, the authorities are not agreed. In Masterton v. Mayor of Brooklyn, to which reference has already been made, it was held by the majority of the court that “where the contract, as in this case, is broken before the arrival of the time for full performance, and the opposite party elects to consider it in that light, the market price on the day of the breach is to govern in the assessment of damages. In other words, the damages are to be settled and ascertained according to the existing state of the market at the time the cause of action arose, and not at the time fixed for full performance. The basis upon which to estimate the damages, therefore, is just as fixed and easily ascertained in cases like the present as in actions predicated upon a failure to perform at the day.” Judge Beardsley, on the other hand, was of opinion that the damages should be estimated as nearly as possible as of the dates when performance would have been due.

$ 1711. - In a leading English case: it was said by Brett, J., that “although the plaintiff may treat the refusal of the defendant to accept or to deliver the goods before the day for performance as a breach, it by no means follows that the damages are to be the difference between the contract price and the market price on the day of the breach. It appears to me that what is laid down by Cockburn, C. J., in Frost . Knight* involves the very distinction which I am endeavoring

1 Tahoe Ice Co. v. Union Ice Co. Mayor of Brooklyn, supra; Laraway supra [citing Burrell v. New York v. Perkins, 10 N. Y. 371). Salt Co., supra; O'Connell v. Hotel 27 Hill (N. Y.), 61, 42 Am. Dec. 88; Co., 90 Cal. 515; Ennis v. Buckeye Mechem's Cases on Damages, 141. Pub. Co., 44 Minn. 105; Shaw v. Hoff- 3 Roper V. Johnson (1873), L R8 man, 21 Mich. 151; Masterton V. Com. Pl. 167, 4 Moak's Eng. 397.

4L R. 7 Ex. 111, 1 Moak's Eng. 218

to lay down, viz., that the election to take advantage of the repudiation of the contract goes only to the question of breach and not to the question of damages; and that, when you come to estimate the damages, it must be by the difference between the contract price and the market price at the day or days appointed for performance, and not at the time of breach."

$ 1712. - The same rule is declared by Mr. Mayne in his work on Damages: 1 “Even when the plaintiff has exercised his option of treating the contract as rescinded [broken?] before the time for its completion has elapsed, and has commenced his action before that time, the damages will still be calculated with reference to the date at which it should have been carried out. In other words, the contract will be treated as rescinded for the purpose of suing upon it, and as existing for the purpose of calculating the damages.”

In Sedgwick on Damages ? it is suggested that this rule is proper where the contract is divisible and the successive breaches have occurred before the action is brought; but where the contract is indivisible, and a present refusal is to be treated as an entire breach, then, “if the periods specified in the contract have not arrived before the trial of the cause, any effort to fix the rights of the parties at those various times must be mere matter of conjecture, and probable expense is neither a precise nor a safe direction for a jury.”

The English rule seems to be sustained by the greater weight of reason and authority.”

$ 1713. — Treating contract as rescinded and recovering quantum valebat.- The seller, moreover, instead of treating the buyer's repudiation as a present breach of the contract merely, may regard it as a total rescission of the contract, and recover the reasonable value of what he has already furnished and the buyer has accepted, as though there had been no contract. Thus where there was a contract for the supplying of

16th Eng. ed. 179.

Mich. 62, 16 N. W. R. 232. Contra, 28th ed., vol. II, p. 314.

Fail v, McRee (1860), 36 Ala. 61. 3 See Goodrich v. Hubbard (1883), 51 4 Wellston Coal Co. v. Franklin

coal throughout the year at a uniform rate per ton, though the coal in some seasons was worth more than the price fixed, and the buyer, after getting the benefit of the rate during the season when coal was high, repudiated it at the time when the price was lower, it was held that the seller might treat the repudiation as a rescission and recover the market price of the coal furnished though in excess of the contract price.1

338; Merrill v. Railroad Co., 16 Wend. 586; Clark v. Mayor of N. Y., 4 N. Y. 338].

1 Wellston Coal Co. v. Franklin Paper Co., supra.

Paper Co. (1897), 57 Ohio St. 182, 48 N. E. R. 888 [citing Chamberlin v. Scott, 33 Vt. 80; McCullough v. Baker, 47 Mo. 401; Kearney v. Doyle, 22 Mich. 294; Buffkin v. Baird, 73 N. C. 283; United States v. Behan, 110 U. S.

1390

CHAPTER IV.

OF THE REMEDIES OF THE BUYER AGAINST THE SELLER.

$ 1714. Purpose of this chapter. § 1734, 1735. Action at law for dam1715. How subjects classified.

ages the usual remedy.

1736-1740. Measure of damages L WHERE THE TITLE HAS NOT

usually difference between PASSED.

contract price and value of 1716. In general.

goods at time and place of

delivery. 1. Where the Goods have not been

1741. How, when price paid in Delivered.

advance. 1717. Seller's breach of contract to 1742. How, when no market sell and convey.

at place of delivery. 1718. Specific performance not usu- 1743. How, when goods have ally awarded.

no market value. 1719. Where chattel is unique. 1744. How, when goods have 1720-1723. Where chattel of

neither market nor actual peculiar importance.

value. 1724. Where legal remedy in. 1745. How, when no difference adequate.

between contract price and 1725. Where chattel necessary

market value. to enjoyment of estate. 1746. How, when goods to be 1726. Contracts for sale and

delivered in instalments. delivery in instalments. 1747. How, when goods to be 1727, 1728. Contracts for sale

delivered "on or before" a of corporate stocks and

certain day. bonds.

1748. How, when no time fixed 1729. Contracts for sale of in

for delivery. ventions, patents or pat- 1749. How, when delivery ented articles.

postponed at seller's re1730. Contracts for sale of

quest. debts, notes, etc.

1750-1753. How, when seller 1731. Contracts for sale of

repudiates before time for growing trees

performance. 1732. Specific performance 1754, 1755. How, when seller not to be made substitute

refuses to give credit as for damages.

agreed. 1733. Will not be granted 1756. Measure of damages where where contract ambiguous,

special circumstances were uncertain or unfair.

in contemplation.

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