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.2 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 W. R. 49. 2 Dana v. Fiedler, supra; Brackett v. Edgerton (1869), 14 Minn. 174, 100 Am. Dec. 211. 1 Dana v. Fiedler (1854), 12 N. Y. Lumber Co. (1882), 54 Wis. 619, 12 N. 40, 62 Am. Dec. 130; McKnight v. Dunlop (1851), 5 N. Y. 537, 55 Am. Dec. 370; Cahen v. Platt (1877), 69 N. Y. 348, 25 Am. R. 203; Saxe v. Penokee Lumber Co. (1899), 159 N. Y. 371, 54 N. E. R. 14; Grand Tower Co. v. Phillips (1874), 90 U. S. (23 Wall.) 471; Capen v. Glass Co. (1882), 105 Ill. 185; McGrath v. Gegner (1893), 77 Md. 331, 26 Atl. R. 502, 39 Am. St. R. 413; Kribs v. Jones (1875), 44 Md. 396; Austrian v. Springer (1892), 94 Mich. 343, 54 N. W. R. 50, 34 Am. St. R. 350; McKercher v. Curtis (1877), 35 Mich. 478; Rahm v. Deig (1889), 121 Ind. 283, 23 N. E. R. 141; Olson v. Sharpless (1893), 53 Minn. 91, 55 N. W. R. 125; Hewson Supply Co. v. Minn. Brick Co. (1893), 55 Minn. 530, 57 N. W. R. 129; Hill v. Smith (1859), 32 Vt. 433; Cockburn v. Ashland In an action to recover unliquidated damages for the breach of an executory contract to convey property, interest is not allowable unless there is a market value of the property or means accessible to the party sought to be charged of ascertaining, by computation or otherwise, the amount to which the plaintiff is entitled. Sloan v. Baird (1900), 162 N. Y. 327, 56 N. E. R. 752. See further, as to the right to interest, Case Plow Works v. Niles & Scott Co. (1900), 107 Wis. 9, 82 N. W. R. 568. 3 See Vickery v. McCormick (1888), 117 Ind. 594; Capen v. Glass Co. (1883), 105 Ill. 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.1 § 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.3 $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 he 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; 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. 2 Saxe v. Penokee Lumber Co. (1899), 159 N. Y. 371, 54 N. E. R. 42. 3 Smith v. Lime Co. (1898), 57 Ohio St. 518, 49 N. F. R. 695. 4 Theiss v. Weiss (1895), 166 Pa. St. 9, 31 Atl. R. 63. 6 See Lawrence v. Porter and other cases cited post, § 1754. 7 That a buyer who has a right of action for the seller's default does not waive or impair it by making a new contract with the seller for the delivery of such goods is held in Mc 5 Havemeyer v. Cunningham (1861), Knight v. Dunlop (1851), 5 N. Y. 537, 35 Barb. 515. 55 Am. Dec. 370. § 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.2 § 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 1 Hill v. Smith (1859), 32 Vt. 433; Winside State Bank v. Lound (1897), 52 Neb. 469, 72 N. W. R. 486; Smith v. Dunlap (1850), 12 Ill. 184; Deere v. Lewis (1869), 51 Ill. 254; Davis v. Fish (1848), 1 G. Greene (Iowa), 406, 48 Am. Dec. 387. v. School Furniture Co. (1896), 41 W. Va. 717, 24 S. E. R. 630. Thus in McHose v. Fulmer, supra, where there was a breach of a contract by an iron producer to supply a manufacturer with iron, and the latter could not supply himself in the market, it was said by Sharswood, J: "When a vendor fails to comply with his contract the general rule for the measure of damages, undoubtedly, is the difference between the contract and market price of the article at the time of the breach. This is for the evident reason that the vendee can go into the market and obtain the article contracted for at that price. But when the circumstances of the case are such that the vendee cannot thus supply himself the rule does not apply, for the reason of it ceases. Bank 2 Trigg v. Clay (1891), 88 Va. 330, 13 S. E. R. 434, 29 Am. St. R. 723, Mechem's Cases on Damages, 239; Washington Ice Co. v. Webster (1878), 68 Me. 449; Grand Tower Co. v. Phillips (1874), 90 U. S. (23 Wall.) 471; Cahen v. Platt (1877), 69 N. Y. 348, 25 Am. R. 203; Paine v. Sherwood (1875), 21 Minn. 225; Capen v. Glass Co. (1882), 105 Ill. 185; Barker v. Mann (1869), 5 Bush (Ky.), 672, 96 Am. Dec. 373. 3 McHose v. Fulmer (1873), 73 Pa. St. 365; Paine v. Sherwood (1875), 21 Minn. 225; Culin v. Woodbury Glass Works (1885), 108 Pa. St. 220; Davis 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 without 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 possible 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." 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 § 1744. How, when goods have neither market nor actual 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 sold in any market.3 $ 1745. price and value. How, when no difference between contract 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. 2 Green v. Boston & L. R. Co. (1880), 128 Mass. 221, 35 Am. R. 370. As to clothing partly worn, Fairfax v. New York Central R. Co. (1878), 73 N. Y. 167, 29 Am. R. 119. Household furniture, etc., International, etc. R. Co. v. Nicholson (1884), 61 Tex. 550. 3 Barnes v. Brown (1892), 130 N. Y. 372, 29 N. E. R. 760; Mechem's Cases on Damages, 255. 4 Merriman v. McCormick Mach. Co. (1897), 96 Wis. 600, 71 N. W. R. 1050. 5 Long v. Conklin (1874), 75 Ill. 32. 6 Brown v. Muller (1872), L. R. 7 Ex. |
