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S 1729. Contracts for the sale of inventions, patents or patented articles.— So, on the same ground that an award of damages would usually be an inadequate remedy, performance of a contract for the sale and assignment of a patent or invention may be specifically enforced. “The principal footing of such jurisdiction,” it is said, “is the obvious inadequacy of the redress which an ordinary action at law for damages would afford, as applied to such property, in event of refusal to comply with an agreement for its sale. Rights acquired under letters patent for inventions are of such peculiar nature that they are justly considered proper subject-matter for suits for specific performance.” For like reasons an agreement to supply articles which the seller alone can supply, because he controls the patent upon them, may be thus enforced.?

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$ 1730. — Contracts for sale of debts, notes, etc.- So also contracts for the sale of a specific debt, or the sale of specific notes bought for a specific purpose known to the seller, may be enforced, as the identical thing is the thing desired and damages would not be an adequate remedy.

$ 1731.

Contracts for the sale of growing trees.- So, further, because of the inadequacy of the remedy at law, it was held in a recent case that, if a contract for the sale of growing

order to obtain control of the corpo Somerby v. Buntin (1875), 118 Mass ration, e. g., a bank. Foll's Appeal 279: Blackmer v. Stone (1889), 51 Ark. (1879), 91 Pa. St. 434; Gage v. Fisher 489, 11 S. W. R. 693 (citing Somerby (1895), 5 N. Dak, 297, 65 N. W. R. 809. v. Buntin, supra; Burr v. De La Though there may be cases where Vergne. 102 N. Y. 415; Blakeney v. such control would be entirely law. Goode. 30 Ohio St. 350; Littlefield r. ful. . O'Neill v. Webb (1898), 78 Mo, Perry, 21 Wall. 205). But see AnderApp. 1. Compare Brady v. Yost son v. Olsen (1900), 188 TIL 502, 59 N. (1898), - Idaho, --, 55 Pac. R. 542. E. R. 239.

1 Secret Service Co. v. Gill-Alexan. 2 Adams v. Messinger (1888), 147 der Mfg. Co. (1894), 125 Mo. 140, 28 Mass. 185, 17 N. E. R. 491. 9 Am. St. S. W. R. 486 [citing Corbin v. Tracy R. 679 [citing Hapgood v. Rosenstock,

iv (1867), 34 Conn. 325; Linney v. An- supra). nan (1871), 107 Mass. 94, 9 Am. R. 10). 3 Wright v. Bell, 5 Price. 325. To like effect: Hapgood v. Rosen- 4 Gottschalk v. Stein (1888), 69 Md. stock (1885), 23 Fed. R. 86 (C. C. N.Y.); 51, 13 Atl. R. 625.

trees was to be regarded as relating to a chattel, it would be specifically enforced; if it were held to relate to real estate, it would be a matter of course to enforce it.1

§ 1732. Specific performance not to be made substitute for award of damages.— But the remedy of specific performance is not to be made a substitute for the ordinary action for damages in cases to which that action is appropriate. Thus, in a late case, it appeared that the plaintiff, who desired to buy a standard-bred Jersey calf, had inquired of the defendant, who had such calves for sale, concerning a certain one, which was so bred but which the defendant fraudulently denied to be so. The defendant thereupon directed plaintiff's attention to another calf, which the defendant fraudulently represented to be of the quality desired but which in fact was not. Plaintiff thereupon bought the latter rather than the former. Later, on discovering the fraud, the plaintiff sought by an action for “specific performance” to compel the defendant to take back the calf which plaintiff so bought and deliver to him in its stead the one which he would have purchased but for the defendant's false representations. His right to this relief, however, was denied, “ his attempt thus to obtain it ” being characterized by the court as "absolutely absurd and untenable."?

§ 1733, — Will not be granted where contract ambiguous, uncertain or unfair.- And finally, not to go too far into the general subject of specific performance, it is to be observed that this relief is not a matter of course; it will not be granted where the contract is ambiguous, indefinite or uncertain, or the article unidentified and unascertained," nor where the granting of the relief prayed for would work results inequitable, unfair and unconscionable."

1 Stuart v. Pennis (1895), 91 Va. 688, State Iron Co. (1889), 8 Houst. (Del.) 22 S. E. R, 509.

372, 14 Atl. R. 27. 2 Millirons v. Dillon (1897), 100 Ga. 4 Lighthouse v. Third Nat. Bank 656, 28 S. E. R. 385.

(1900), 162 N. Y. 336. 56 N. E. R. 738. 3 See Fry on Specific Performance, 5 See Fry on Specific Performance, ubi supra, 334; Todd v. Diamond $ 334; Rigg v. Railway Co. (1899), 191

Pa. St. 298, 43 Atl. R. 212.

§ 1734. Action at law for damages the usual remedy.- In the cases in which specific performance cannot be enforced, the remedy of the buyer for the seller's breach of his agreement to sell and convey must be sought at law. The buyer in the contingency now being considered -- breach before the transfer of title - can obviously not recover the goods, for, by the hypothesis, the title has not vested in him. He must therefore have recourse to an action for damages for the breach of contract. If he has not paid the price in advance, he will still have his money and may go into the market and buy the goods. If he can buy them for not more than the contract price, he obviously has suffered no more than a nominal injury; if he is compelled to pay more than the contract price, that excess usually measures the extent of his loss. If, however, he has paid the price in advance, he is clearly entitled to a recovery of the sum so paid in addition to compensation for any other loss sustained by reason of the excess of the market over the contract price.

$ 1735. - Where the goods have a market value, that value must ordinarily control. If, however, they have no market value, the buyer has still lost any excess which there might be between the price he was to pay and the actual value of the goods he was to receive; and their actual value may then be shown by other evidence.

The buyer was entitled to the goods at the time and place fixed by the contract; and values at that time and place must therefore govern the allowance.

From the time at which he thus became entitled to some specific sum as compensation for the breach of contract, he should have interest on that amount.

These considerations will suggest the rules which must apply to the ordinary case.

$ 1736, Measure of damages usually difference between the contract price and value of goods at time and place of delivery, with interest.- For the breach of the seller's agreement to sell and convey, therefore, the measure of the buyer's

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damages, if he has not paid the price or any part of it in advance, will ordinarily be the difference between the contract price and the market value of the goods at the time and place of delivery,' with interest on that difference from the date of the default.?

Cases, of course, arise where special damages may have been in contemplation, and as to these a different rule may apply, which will be considered later; but for the ordinary case, involving no special circumstances, the rule as given above applies.

$ 1737. If the default be as to the delivery of part only, and the contract is severable, then damages as to that part could be recovered under the general rule already given. If the contract were entire, but the part not delivered could be procured in the market, the general rule may also be applied. But where the contract is entire and the missing part cannot be so procured, damages based upon the diminished value of the whole from the non-delivery of the part — that

1 Dana v. Fiedler (1854), 12 N. Y. Lumber Co. (1882), 54 Wis. 619, 12 N. 40, 62 Am. Dec. 130; McKnight v. W. R. 49. Dunlop (1851), 5 N. Y. 537, 55 Am.

2 Dana v. Fiedler, supra; Brackett Dec. 370; Cahen v. Platt (1877), 69

v. Edgerton (1869), 14 Minn. 174, 100 N. Y. 348, 25 Am. R. 203; Saxe v. Am. Dec. 211. Penokee Lumber Co. (1899), 159 N. Y. In an action to recover unliqui371, 54 N. E. R. 14; Grand Tower Co. dated damages for the breach of an v. Phillips (1874), 90 U. S. (23 Wall.) executory contract to convey prop471; Capen v. Glass Co. (1882), 105 erty, interest is not allowable unless Ill. 185; McGrath v. Gegner (1893), there is a market value of the prop77 Md. 331, 26 Atl. R. 502, 39 Am. St. erty or means accessible to the party R. 418; Kribs v. Jones (1875), 44 Md. sought to be charged of ascertaining, 396; Austrian v. Springer (1892), 94 by computation or otherwise, the Mich. 343, 54 N. W. R. 50, 34 Am. St. amount to which the plaintiff is enR. 350; McKercher v. Curtis (1877), titled. Sloan v. Baird (1900), 162 N. 35 Mich. 478; Rahm v. Deig (1889), Y. 327, 56 N. E. R. 752. See further, 121 Ind. 283, 23 N. E. R. 141; Olson

as to the right to interest, Case Plow v. Sharpless (1893), 53 Minn. 91, 55 Works v. Niles & Scott Co. (1900), 107 N. W. R. 125; Hewson Supply Co. v. Wis. 9, 82 N. W. R. 568. Minn. Brick Co. (1893), 55 Minn, 530, 3 See Vickery v. McCormick (1888), 57 N. W. R. 129; Hill v. Smith (1859), 117 Ind. 594; Capen v. Glass Co. (1883), 32 Vt. 433; Cockburn v. Ashland 105 III. 185; Valpy v. Oakeley (1851), 16

Q. B. 941, 71 Eng. Com. L 941.

is, the difference between the value of the whole and the value of the part delivered - would be recoverable.

$ 1738. - It is not essential to the operation of this rule

— giving the difference between the contract and the market price, that the buyer shall have actually gone into the market and bought other goods to supply the place of those not delivered. “It would not advantage the defaulting party if he should do so; for, if he buys at the market value, the result to the other party is the same as if he simply proved the market value.” This loss is so clearly the ordinary and necessary result of the breach of the contract that no special allegations are needed to enable the plaintiff to recover.'

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$ 1739. — If, however, the buyer has actually purchased

— the goods at less than the market price, then the amount of his real loss, and not his estimated loss, is to be made the basis. The buyer was bound to mitigate his loss if he could, and if be has done so he can recover merely compensation for the actual loss sustained.

$ 1740. — Whether, however, the buyer would be obliged to buy of the defaulting seller if he should afterward offer to sell the goods at more than the contract price, but less than the subsequent market price, has been questioned. The supreme court in New York held that he was not obliged to do so, as it might expose him to the charge of having abandoned the first contract;S but on principle it would seem that the seller should be entitled to thus diminish his loss, and that the buyer need not waive his right by accepting?

1 See Field on Damages, $ 268. 6 See Lawrence v. Porter and other

2 Saxe v. Penokee Lumber Co. cases cited post, $ 1754. (1899), 159 N. Y. 371, 54 N. E. R. 42. 7 That a buyer who has a right of

3 Smith v. Lime Co. (1898), 57 Ohio action for the seller's default does St. 518, 49 N. F. R. 695.

not waive or impair it by making a 4 Theiss v. Weiss (1895), 166 Pa. St. new contract with the seller for the 9, 31 Atl. R. 63.

delivery of such goods is held in Mc5Havemeyer v. Cunningham (1861), Knight v. Dunlop (1851), 5 N. Y. 537, 35 Barb. 515.

55 Am. Dec. 370.

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