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sale of its goods in a foreign country and agreed to supply the goods and give certain exclusive rights of sale, it was held that, upon repudiation by the company, the other parties might recover the profits which they could show with reasonable certainty would have resulted from the business. And the same ruling was made where the manufacturer of goods failed to supply them at a time when they could not be obtained in the market, whereby the buyer lost the profit which he would have made on their resale.?

$ 1777. No damages for purely conjectural, speculative or remote losses.-- Under no one of these rules, however, are damages to be recovered for losses which are uncertain, remote or speculative. Damages may be had, as has been already seen,' for the loss of profits under existing contracts where the fact and the amount of that loss can be shown with reasonable certainty. But profits which the buyer contends he might have received upon contracts which he might have made are obviously too speculative and conjectural to be used as the foundation for a claim for damages.

$ 1778. — For like reason, profits which the plaintiff contends he would have made at some other business or with some other goods if he had not expected to receive the ones in question must also be ordinarily too remote. As said in a recent case, “the losses recoverable on breaches of contract are those directly connected with it and arising from the breach. The

1 Wakeman v. Wheeler & Wilson Center Town Co. v. Leonard (1891), 46 Mfg. Co. (1886), 101 N. Y. 205, 54 Am. Kan. 354, 26 Pac. R. 717, 26 Am. St. R. 676 (limiting Taylor v. Bradley, 39 R. 101, Mechem's Cases, 147, and N. Y. 129; distinguishing Mitchell v. cases cited post, § 1809. Read, 84 N. Y. 556, and disapproving 5 In an action for breach of conHowe Machine Co. v. Bryson, 44 tract of sale of physician's practice, Iowa, 159).

damages for the amount the pur2 Bluegrass Cordage Co. v. Luíhy chaser would have made from pro(1896), 98 Ky, 583, 33 S. W. R. 835. fessional practice given up, relying 3 See ante, SS 1763 et seq.

on the contract, do not arise from + See Brigham v. Carlisle (1884), 78 the breach complained of. Rigney v. Ala. 243, Mechem's Cases on Dam- Monette (1995), 47 La. Ann. 648, 17 S. ages, 152, and cases cited; Sherman R 211.

law does not contemplate indemnity for profits which the party supposes he would have derived from some business he claims he would have pursued if he had not made the contract alleged to have been violated.” 1

$ 1779. — And so, as between two possible methods by which the loss might be computed, the law prefers that which leads to the more certain and least speculative results. Thus, as has been seen, the damages to be recovered for not supplying a machine or other article as agreed are usually the market value for which another may be procured, and not the profits which might have been made from its use. And, for like reasons, the damages to be recovered for the loss of the use of the property are to be estimated with reference to rental value 3 or fair interest upon investment, and not upon the uncertain and speculative basis of the profit which might have been mado from its usa.

$ 1780. Pleading special damages.- For all those losses which are the usual and necessary consequences of the seller's default, the buyer may recover damages without resorting to special allegations;* but when the object is to recover for the unusual consequences — those which have actually happened in this case but do not necessarily or ordinarily happen,- the plaintiff must, in his pleadings, allege the special injury with such particularity as reasonably to apprise the defendant of the origin, nature and extent of the losses for which damages will be sought.

1 Rigney v. Monette, supru.

to be recovered for not supplying gas 2 See ante, $ 1761.

as agreed for the operation of a glass 3 See, for example, Griffin v. Colver factory in a country where glass (1858), 16 N. Y. 489, 69 Am. Dec. 718, making was a new and untried inMechem’s Cases on Damages (2d ed.), dustry would be the fair rental value 126; Brownell v. Chapman (1892), 84 of the property thereby rendered Iowa, 504, 51 N. W. R. 249, 35 Am. St. idle, if it had a rental value, or, if R. 326, Mechem's Cases on Damages, not, then interest on the capital in139. See also Sherman Center Town vested, and not the prospective prof. Co. v. Leonard (1891), 46 Kan. 354, its which the business might have 26 Pac. R. 717, 26 Am. St. R. 101, earned. The latter, under the cirMechem's Cases on Damages, 147. cumstances, are too contingent, un

4 Paola Gas Co. v. Paola Glass Co. certain and speculative. (1896), 56 Kan. 614, 44 Pac. R. 621, 54 4 Smith v. Lime Co. (1898), 57 Ohio Am. St. R. 598, citing many cases. St. 518, 49 N. E. R. 695. Here it was held that the damages

2. Where the Goods have been Delivered.

$ 1781. Substantially the same remedies as the preceding. Where, in pursuance of the contract of sale, or as part of it, or because of it, the goods have been delivered to the buyer before the transfer of the title, the buyer's remedies would ordinarily be, at least, those to which, as has been seen in the preceding sections, he would be entitled if the goods had not been delivered. He would, however, in addition, have the advantages which flow from possession. If, as in certain cases of the conditional contract to sell, he has no definite right to possession under the contract, his possession might not be of great avail; but if, by the terms of the contract, he is entitled to possession until default on his part, the law would protect his possession, and upon performance or tender of performance would confirm bis title and thus put it beyond the seller's power to disturb it.

II.

WHERE THE TITLE HAS PASSED.

§ 1782, In general.— The question of the buyer's remedies, where the title has passed to him, may present two phases: (1) The seller, though the title has passed, may refuse to deliver the goods; or (2) though the title has passed and the goods are delivered, they prove not to be such in title, kind, quality or condition as they were expressly or impliedly warranted or represented to be. These two aspects may be separately considered.

11 Chitty on Pleading, 395; Tread- 47 Mich. 16, 10 N. W. R. 60, Mechem's well v. Whittier (1889), 80 Cal. 575, Cases, 75; Wabash W. Ry. Co. v. 22 Pac. R. 266, 13 Am. St. R. 175; Friedman (1892), 146 Ill. 583, 30 N. E. Stevenson v. Smith (1865), 28 Cal. 103, R. 353, 34 N. E. R. 1111, Mechem's 87 Am. Dec. 107, Mechem's Cases on Cases, 71. Damages, 70; Heister v. Loomis (1881),

1. Where the Goods are not Delivered.

$ 1783. Specific performance of agreement to deliver.The mere fact that the title has passed does not necessarily warrant the conclusion that the buyer is entitled to immediate possession. The seller may be entitled to retain possession until some act is done, by virtue of an express term of the contract; and even in the absence of such an express term, the seller will, as has been seen,' have the right, unless he waives it, to retain possession by virtue of his lien until the price is paid.

But assuming that the buyer is entitled to the possession of the goods and that the seller's retention is wrongful, the buyer may, as has been seen, in cases involving special considerations, obtain a decree for the specific performance of the agreement to sell and to deliver.2

$ 1784. Action for damages for breach of agreement to deliver,- It is, as has been seen, an implied if not an express term of the undertaking of the seller that he will not only transfer the title but will also deliver the goods to the buyer. How these duties are to be performed has already been considered, and the discussion need not be repeated here. If, therefore, the seller, having transferred the title, wrongfully refuses to deliver the goods, he violates his contract; and while the buyer has, as will be seen in following sections, the rights of an owner and may maintain trover or replevin, he has also, if he prefers to use them, the remedies based upon the breach of contract.

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$ 1785, — Measure of damages.- By the total breach of the seller's undertaking to deliver the goods, the buyer is placed in substantially the same predicament as though the seller had wholly refused to sell. He loses the goods, and he may recover

1 See ante, SS 1474 et seq.

SS 14, 41; Marsh v. Milligan (1857), 3 2 See ante, SS 1718 et seq. See also Jurist (N. S.), 979. Fry on Specific Performance (1892), 3 See ante, SS 1116 et seq.

4 See ante, SS 1112, 1116

upon the basis of that loss — if he has paid the price, the full value of the goods; if he has not paid the price, the difference between the contract price and the value of the goods;? if the goods were sold in contemplation of a special use, then the value for the use so contemplated may be made the basis. As to all of these matters, the rules already given will apply, and it seems unnecessary to repeat them.

$ 1786. Trover — Damages usually market value at time of conversion. The buyer who has the title and is entitled to possession, instead of basing his action for damages upon the breach of the seller's contract to deliver, as suggested in the preceding section, may maintain an action of trover as for conversion against the seller who has refused to recognize the buyer's rights, or has wrongfully resold the property to another.

The damages to be recovered in the action of trover are usually the value of the goods at the time of the conversion;' but

1 See ante, S 1741.

(1889), 71 Md.64, 18 Atl. R. 29, 20 Atl. R. 2 See ante, SS 1736-1740.

159; Jellett v. St. Paul Ry. Co. (1883), 3 See ante, SS 1771-1776.

30 Minn, 265, 15 N. W. R. 237; Beede · Kennedy v. Whitwell (1827), 4 v. Lamprey (1888), 64 N. H. 510, 15 Atl. Pick. (Mass.) 466; Philbrook v. Eaton R. 133, Mechem's Cas. on Damages, (1883), 134 Mass. 398. The wrongful 389; Griggs v. Day (1892), 136 N. Y. resale constitutes the conversion, 152, 32 N. E. R. 612, 32 Am. St. R. 704; and not the subsequent refusal to Crampton v. Marble Co. (1888), 60 Vt. surrender the goods upon demand. 291, 15 Atl. R. 153; Ingram v. Rankin Philbrook v. Eaton, supra.

(1879), 47 Wis. 406, 34 Am. R. 762; 5 Kennedy v. Whitwell, supra; Arkansas Valley L. & C. Co. v. Mann Terry v. Birmingham Nat. Bank (1888), 130 U. S. 69, 9 Sup. Ct. R. 458. (1890), 93 Ala. 599, 9 S. R. 299, 30 Am. The fact that since the conversion, St. R. 87; Jones v. Horn (1888), 51 by a wrongful refusal to deliver upon Ark. 19, 9 S. W. R. 309; Sturges v. payment and demand, and since the Keith (1870), 57 Ill. 451, 11 Am. R. 28; commencement of the action, the Brewster v. Van Liew (1886), 119 Ill. defendant has resold the goods at a 554, 8 N. E. R. 842; Thew v. Miller price greater than the market price (1887), 73 Iowa, 742, 36 N. W. R. 771; at the time of the conversion, does Simpson v. Alexander (1886), 35 Kan. not entitle the plaintiff to damages 225, 11 Pac. R. 171; Wing v. Milliken based upon that increased price. (1898), 91 Me. 387, 40 Atl. R. 138, 64 Kennedy v. Whitwell, supra. Am. St. R. 238; Hopper v. Haines

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