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$ 1741. How, when price paid in advance.- If the contract price or any part of it has been paid in advance, reimbursement for that sum must be added to the recovery. If, therefore, the contract price has so been paid in full, the full market price would be the measure,' with interest, as before.

$ 1742. — How, when there is no market at place of delivery.- If, for any reason, there be no market at the place of delivery, then the value in the nearest and most available market, to which the buyer must resort in order to supply himself, with the cost of transportation added, together with compensation for time, trouble and expense in making the repurchase, furnishes the basis for the compensation.?

$ 1743. How, when goods have no market value. If the goods are such as have no market value at all, as may easily be the fact in the case of second-hand goods, pictures, clothing, special machinery, patented articles, and the like, then their actual value, as determined by the best evidence available, must control. Thus, in one case it is said that, "in

,

Hill v. Smith (1859), 32 Vt. 433; v. School Furniture Co. (1896), 41 W. Winside State Bank v. Lound (1897), Va. 717, 24 S. E. R. 630. 52 Neb. 469, 72 N. W. R. 486; Smith Thus in McHose v. Fulmer, supra, v. Dunlap (1850), 12 Ill, 184; Deere v. where there was a breach of a conLewis (1869), 51 III. 254; Davis v. Fish tract by an iron producer to supply (1848), 1 G. Greene (Iowa), 406, 48 a manufacturer with iron, and the Am. Dec. 387.

latter could not supply himself in 2 Trigg v. Clay (1891), 88 Va: 330, 13 the market, it was said by SharsS. E. R. 434, 29 Am. St. R. 723, Mech- wood, J: “When a vendor fails to em's Cases on Damages, 239; Wazh- comply with his contract the genington Ice Co. v. Webster (1878), 68 eral rule for the measure of damMe. 449; Grand Tower Co. v. Phillips ages, undoubtedly, is the difference (1874), 90 U. S. (23 Wall.) 471; Cahen between the contract and market v. Platt (1877), 69 N. Y. 348, 25 Am. price of the article at the time of R. 203; Paine v. Sherwood (1875), 21 the breach. This is for the evident Minn. 225; Capen v. Glass Co. (1882), reason that the vendee can go into 105 III. 185; Barker v. Mann (1869), 5 the market and obtain the article Bush (Ky.), 672, 96 Am. Dec. 373. contracted for at that price. But

3 McHose v. Fulmer (1873), 73 Pa. when the circumstances of the case St. 365; Paine v. Sherwood (1875), 21 are such that the vendee cannot thus Minn. 225; Culin v. Woodbury Glass supply himself the rule does not apWorks (1885), 108 Pa. St. 220; Davis ply, for the reason of it ceases. Bank

the absence of any market value, the actual value must be ascertained by an investigation into what it would cost the purchaser, acting in good faith and with due diligence and reasonable prudence, to procure, in the condition required by the

of Montgomery v. Reese, 2 Casey, 143. It is manifest,' says Mr. Chief Justice Lewis, 'that this (the ordinary measure) would not remunerate him when the article could not be obtained elsewhere.' If an article of the same quality cannot be procured in the market, its market price cannot be ascertained, and we are with out the necessary data for the application of the general rule. This is a contingency which must be considered to have been within the contemplation of the parties, for they must be presumed to know whether such articles are of limited production or not. In such a case the true measure is the actual loss which the vendee sustains in his own manufacture, by having to use an inferior article or not receiving the advance on his contract price upon any contracts which he had himself made in reliance upon the fulfillment of the contract by the vendor. [Sed quære, see § 1762.] We do not mean to say, that if he undertakes to fill his own contracts with an inferior article, and in consequence such article is returned on his hands, he can recover of his vendor, besides the loss sustained on his contracts, all the extraordinary loss incurred by his attempting what was clearly an unwarranted experiment. His legitimate loss is the difference between the contract price he was to pay to his vendor and the price he was to receive. This is a loss which springs directly from the non-fulfillment of the contract."

In Culin v. Glass Works, 108 Pa. St. 220, supra, A agreed to furnish B a certain total quantity of bottles of a particular kind. He furnished more than half the quantity but failed to deliver the balance. It was not pos sible to purchase enough similar goods in the market to complete the total quantity contracted for. The purchaser was a manufacturer of cooking extracts and syrup, which he put up in bottles and sold to the trade. He testified that by reason of A's default he was unable to fill orders he had on hand at the time of the breach. In an action by A against B to recover the price of the goods actually delivered, the court instructed the jury (1) that the defendant was entitled to set off the excess paid by him over the contract price for a portion of the deficient bottles which he purchased in the market, and (2) as to so much of the deficient quantity as he was unable to purchase in the market he was entitled to set off his actual loss sustained by not having such quantity furnished to him, viz, the difference between the contract price of the bottles he was to pay his vendor, and what loss he sustained in his own manufacture by not receiving the advance on the contract price upon any contracts he had himself made in reliance upon the fulfillment of the contract by the vendor. Held, that the instruction was as favorable to the defendant as he could reasonably ask.

contract and delivered at the place therein named for delivery, the kind and quantity of goods contracted for.”1 And in another case, involving the value of a family portrait, the court said that to limit the recovery by its market value “would be merely delusive. It cannot with any propriety be said to have any market value. The just rule of damages is the actual value to him who owns it, taking into account the cost, the practicability and expense of replacing it, and such other considerations as in the particular case affect its value to the owner." %

$ 1744. —How, when goods have neither market nor act

$ ual value.- If the goods have neither market nor actual value, the vendee is entitled to no damages other than nominal. And this is so even though the goods could not be produced or procured without the expenditure of a substantial sum, if when produced they would really be of no actual value and could not be old in any market."

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§ 1745. How, when no difference between contract price and value. If there be no difference between the contract price and the market or actual value, there would, of course, be no real loss,' and, at most, nominal damages would be the extent of the recovery.

§ 1746. How, when goods are to be delivered in instalments.—Where the goods, by the terms of the contract, are to be delivered in instalments on specified days, at each of which the market price may vary, resort must be had to each final day of performance, and the total recovery will be the sum of the differences upon those respective days.

1 Paine v. Sherwood, supra.

3 Barnes v. Brown (1892), 130 N. Y. 2 Green v. Boston & L. R. Co. (1880), 372, 29 N. E. R. 760; Mechem's Cases 128 Mass. 221, 35 Am. R. 370. As to on Damages, 255. clothing partly worn, Fairfax v. New 4 Merriman v. McCormick Mach. York Central R. Co. (1878), 73 N. Y. Co. (1897), 96 Wis. 600, 71 N. W. R. 167, 29 Am. R. 119. Household furni. 1050. ture, etc., International, etc. R. Co. 5 Long v. Conklin (1874), 75 Ill. 32. v. Nicholson (1884), 61 Tex. 550.

6 Brown v. Muller (1872), L. R. 7 Ex,

The same rule has been applied where the contract was to deliver, not on specific days, but as the buyer should need and call for the goods during the season.'

$ 1747. How, when goods to be delivered “ on or before” a certain day.- Where, by the terms of the contract, the goods are to be delivered "on or before” a date named,

a the contract is broken on that day and not before, and the market value on that day, therefore, furnishes the basis for estimating tbe damages.?

$ 1748. How, when no time fixed for the delivery.Where no time is fixed for the delivery of the goods, the law will presume that they are to be delivered within a reasonable 319, 3 Moak’s Eng. 429; Roper v. John- fore the close of the year plaintiff son (1873), L R8 Com. Pl. 167, 4 elected to continue the contract, and Moak's Eng. 397.

a few days later gave another order 1 Long v. Conklin (1874), 75 Ill. 32. for twenty thousand barrels, which

In Willock v. Crescent Oil Co. was also refused. The evidence (1898), 184 Pa. St. 245, 39 Atl. R. 77, showed that the stock on hand was defendant agreed to furnish plaintiff insufficient to supply the needs of an oil refiner, with all the crude oil the refinery during the second year, that the latter might “need or use" and plaintiff was compelled, from at his refinery during one year, be- time to time, to buy eighty-six huntween specified dates. The plaintiff dred barrels, in addition, from the was permitted to order the oil in lots defendant at a somewhat advanced not exceeding twenty thousand bar- price. Held, (1) that defendant had rels at one time, but such orders a right to refuse to fill the first order were in no case to be made oftener for the reason given by him; (3) that, than once in thirty days. It was as plaintiff had a right to secure his also agreed that the contract might entire stock for the second year as be extended for an additional year soon as could be done under the conupon the same terms, if plaintiff tract, defendant had no right to regave due notice before the first year fuse to fill the second order, in so far had fully expired. The oil was to be as such order was necessary to com. paid for at the current price. Two plete plaintiff's stock for the second weeks before the year closed, and at year; (3) that plaintiff was entitled a time when plaintiff had on hand to recover the difference between more oil than he had used during the the price of the eighty-six hundred whole year, he ordered twenty thou- barrels at the time when the second sand barrels more, which was re- order was given and the price he was fused by the defendant on the ground subsequently compelled to pay

de that it could not be “needed or fendant. used" during the year. Five days be- 2 Smith v. Berry (1841), 18 Me. 122.

time, and their market value at the expiration of such a period, and, at all events, upon a distinct refusal,? will furnish the foundation for the computation.

$ 1749. —How, when delivery postponed at request of seller.- Where the time for delivery is postponed at the request of the seller, and he then refuses to make delivery, the measure of damages, within rules already considered,' might doubtless be estimated in view of the market at the time of the last default.

$ 1750. —How, when seller repudiates before time for performance.- Discussion has already been had in several places of the question of the "anticipatory breach” of the contract by one party or the other. As has been thus seen, the buyer is not obliged to acquiesce in such a breach of the contract by the seller, and may insist upon keeping the contract operative until the time for performance arrives, and then have his damages ascertained as of that date in accordance with the general rule already given. As has also been seen, however, the buyer may acquiesce in the seller's repudiation so far as to treat it as a present breach, and bring his action at once without waiting for the arrival of the stipulated time.? If he does so, what is to be the measure of his damages ? $ 1751,

A brief consideration of some cases which would present the question may be of aid. If the contract is for the sale of a crop of potatoes to be delivered at maturity, and the seller immediately after planting repudiates the contract, the buyer's damages, if he sues at once, can scarcely be estimated by the present difference between the contract price

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1 Kribs v. Jones (1875), 44 Md. 396; 157, 61 N. W. R. 364; Hickman v. Greaves v. Ashlin (1813), 3 Camp. 426; Haynes (1875), L. R. 10 Com. Pl. 598; Tempest v. Kilner (1846), 3 Com. B. Ogle v. Lord Vane (1868), L. R. 2 Q. B. 249, 54 Eng. Com. L. 248.

275, 3 id. 272. ? Williams v. Woods (1860), 16 Md. 5 See ante, SS 1091, 1699. 220.

6 See ante, SS 1088, 1707. 3 See ante, $ 1691.

7 See ante, SS 1089, 1706. Brown v. Sharkey (1894), 93 Iowa,

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