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.1 § 1747. How, when goods to be delivered" on or be fore" a certain day.- Where, by the terms of the contract, the goods are to be delivered "on or before" a date named, the contract is broken on that day and not before, and the market value on that day, therefore, furnishes the basis for estimating the damages.2 § 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. Johnson (1873), L R. 8 Com. Pl. 167, 4 Moak's Eng. 397. 1 Long v. Conklin (1874), 75 Ill. 32. In Willock v. Crescent Oil Co. (1898), 184 Pa. St. 245, 39 Atl. R. 77, defendant agreed to furnish plaintiff an oil refiner, with all the crude oil that the latter might "need or use" at his refinery during one year, between specified dates. The plaintiff was permitted to order the oil in lots not exceeding twenty thousand barrels at one time, but such orders were in no case to be made oftener than once in thirty days. It was also agreed that the contract might be extended for an additional year upon the same terms, if plaintiff gave due notice before the first year had fully expired. The oil was to be paid for at the current price. Two weeks before the year closed, and at a time when plaintiff had on hand more oil than he had used during the whole year, he ordered twenty thousand barrels more, which was refused by the defendant on the ground that it could not be "needed or used" during the year. Five days be fore the close of the year plaintiff elected to continue the contract, and a few days later gave another order for twenty thousand barrels, which was also refused. The evidence showed that the stock on hand was insufficient to supply the needs of the refinery during the second year, and plaintiff was compelled, from time to time, to buy eighty-six hundred barrels, in addition, from the defendant at a somewhat advanced price. Held, (1) that defendant had a right to refuse to fill the first order for the reason given by him; (2) that, as plaintiff had a right to secure his entire stock for the second year as soon as could be done under the contract, defendant had no right to re fuse to fill the second order, in so far as such order was necessary to com plete plaintiff's stock for the second year; (3) that plaintiff was entitled to recover the difference between the price of the eighty-six hundred barrels at the time when the second order was given and the price he was subsequently compelled to pay de fendant. 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,2 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,3 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 1 Kribs v. Jones (1875), 44 Md. 396; Greaves v. Ashlin (1813), 3 Camp. 426; Tempest v. Kilner (1846), 3 Com. B. 249, 54 Eng. Com. L. 248. 2 Williams v. Woods (1860), 16 Md. 220. 3 See ante, § 1691. 4 Brown v. Sharkey (1894), 93 Iowa, 157, 61 N. W. R. 364; Hickman v. 5 See ante, §§ 1091, 1699. and the market value of the goods. If the contract is for the sale and delivery when three years old of a colt now running with its dam, an action for a present breach will be ineffectual if the damages are to be assessed upon the basis of the present value of the colt. If, however, the contract is for the future sale of wheat, and the seller, anticipating a steadily rising market, makes an early repudiation of the contract at a time when the buyer may, at slight advance, supply himself in the market, in an action for the breach, are the damages to be estimated according to the market price when the contract was repudiated or the market price at the time fixed for delivery? § 1752. It is a general principle that a party claiming damages must do what reasonably he may to make those damages as small as possible. Applying this principle to the cases stated, it has been said to be the rule that "even if the seller repudiates the contract before the date of delivery, so that the buyer may sue at once, the damages are to be assessed as of the agreed date of delivery, unless it appears that the buyer could have supplied himself in the market on such terms as to mitigate his loss."1 § 1753. This is in accordance with the often-cited rule laid down by Cockburn, C. J.,2 that, on repudiation by the promisor, the promisee may at once bring his action as on a breach of the contract, "and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the appointed time, subject, however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss." And in the latest case upon the question, the supreme court of the United States has declared that "as to the question of damages, if the action is not premature, the rule is applicable that plaintiff is entitled to compensation based, as far as possible, on the ascertainment of what he would have suffered by the continued 1 Hale on Damages, p. 243. 2 In Frost v. Knight, L. R. 7 Ex., at p. 113. breach of the other party down to the time of complete performance, less any abatement by reason of circumstances of which he ought reasonably to have availed himself.”1 § 1754. How, when seller refuses to give term of credit as agreed.- Where the seller does not refuse to deliver the goods at all, but refuses to deliver them upon the term of credit agreed upon and insists upon payment in cash, the same general principles still apply. If the market price for cash and the contract price on credit were the same, the buyer has still sustained a loss. "Credit extended without interest is, in effect, a sale at the stipulated price less the interest for the period of credit. The damages for a breach of contract to pay money at a particular date is the lawful rate of interest for the period of default, unless some other penalty is imposed by the agreement. So it would seem that if the buyer, in order to supply himself with the articles which the seller was obligated to sell, is compelled to buy from another, and to pay cash, one element of recovery for the breach would be interest upon his purchase for the period of credit." 2 § 1755. The buyer, however, would not be justified in paying more to a third person than he can obtain the goods for from the original seller by paying cash. Notwithstanding the seller's default, it is held that the general duty of the buyer to mitigate his loss still applies, and if he can buy the goods of the original seller for cash for less than he can buy them in the market, he is bound to do so. "The obligation on the buyer to mitigate his loss, by reason of the seller's refusal to carry out such a sale, is not relaxed because the delinquent seller affords the only opportunity for such reduction of the buyer's damage." 1 Roehm v. Horst (1899), 178 U. S. 1, 44 L. ed. 953, 20 Sup. Ct. R. 780, stated in full ante, § 1089. To like effect: Austrian v. Springer (1892), 94 Mich. 343, 54 N. W. R. 50, 34 Am. St. R. 350; Roper v. Johnson (1873), L. R. 8 Com. Pl. 167. 2 Lawrence v. Porter (1894), 22 U. S. App. 483, 11 C. C. A. 27, 63 Fed. R. 62, 26 L. R. A. 167, Mechem's Cases on Damages, 246. 3 Lawrence v. Porter, supra. To same effect: Warren v. Stoddart (1881), 105 U. S. 224, 26 L. ed. 1117. § 1756. Measure of damages where special circumstances were in contemplation. Thus far attention has been given to the ordinary consequences which result from the seller's breach of his agreement to sell and convey. Those consequences usually are that the buyer loses the excess in value which the goods might have over and above the sum which he was to pay to get them, and compensation for that loss ordinarily does full justice to the buyer. But there may be cases in which the buyer had in view such a special or unusual use or purpose that this mere difference in value will not adequately measure it. If he had, two conditions will suggest themselves: Did he keep that peculiar use or purpose to himself, so that the seller had no intimation that any other than the ordinary consequences would ensue? Or did he, or did the circumstances, so fully disclose this special or unusual purpose that the seller may fairly be said to have had in his contemplation when he made the contract the losses which In this last case Stoddart had agreed to supply Warren, a canvasser, with sets of a reprint of the Encyclopedia Britannica on thirty days credit. He afterwards refused to supply them except for cash on delivery. Thereupon Warren imported the Scotch edition at a vastly greater cost, and supplied them to his customers, and sought to recover the excess as damages. But the court held that interest for thirty days was the measure of his damages. See also Deere v. Lewis (1869), 51 Ill. 254; Barker v. Mann (1869), 5 Bush (Ky.), 672, 96 Am. Dec. 373; Hassard v. Hardison (1895), 117 N. C. 60, 23 S. E. R. 96. Ability to pay cash.-There is, however, in Cook Mfg. Co. v. Randall (1883), 62 Iowa, 245, 17 N. W. R. 507, the statement that to require the parties "to pay cash when they had contracted for credit is not within the bounds of reason. The condition as to credit was an important and essential provision of the contract. The law will not presume that defendants could have paid cash for the goods, and it surely did not require them to do what they are not shown to have been able to do." This case, however, is questioned in Lawrence v. Porter, supra. Compare Havemeyer v. Cunningham (1861), 35 Barb. (N. Y.) 515, distinguished in Lawrence v. Porter. The law presumes money to be always procurable in the market at lawful [current] rates of interest (Lowe v. Turpie (1896), 147 Ind. 652, 44 N. E. R. 25, 37 L. R. A. 233, Mechem's Cases on Damages, 213); though the rule may be different where the party has been induced to rely on the promise of credit until too late to get money elsewhere. See Lowe v. Turpie, supra; Blood v. Wilkins (1876), 43 Iowa, 565; 1 Sutherland on Damages, p. 164. |