Though the market value at the time and place where delivery should have been accepted under the contract is the exact matter to be determined, that value sometimes cannot be determined directly. There may be no available market at that place. In such a case the value at the nearest available market will be accepted, taking the expense of transportation into account. 12

§ 1379. Seller's damages where goods have no market value. If there is no market value for which the goods can be sold, it is impossible to lay down a narrower principle than that sellers in such a position are "entitled to the full amount of the damage which they have really sustained by a breach of the contract." It does not necessarily follow that because there is no available market in which the goods can be sold at the time, that they have no pecuniary value. In some cases, however, this may be true, and in such a case damages are the entire contract price without deduction.14

494; Foos v. Sabin, 84 Ill. 564; Tufts v. Bennett, 163 Mass. 398, 40 N. E. 172.

12 In Barry v. Cavanagh, 127 Mass. 394, the purchaser failed to take paving stones at a specific place in Boston, Dover street bridge. The court said, speaking of the stone: "Now, if, when they were brought to Dover street bridge, where there was no market for them, it would cost all they would sell for at a market to carry them to the market, they were valueless there, and they would be entitled to recover the contract price in order to be made whole. If they (the stones) could be conveyed to a market for a part of what they would sell for, they were worth at the bridge the market price less the cost of getting them to the market, and the true rule would be the difference between what they were so worth and the contract price. Stated otherwise, if they were salable where they lay, to be delivered elsewhere at a price larger than the cost of delivery there,

the excess of such price above the cost of delivery was the market value, which should have been deducted from the contract price, in order to get at the damages." See also Chicago v. Greer, 9 Wall. 726, 19 L. Ed. 769; Kirchman v. Tuffle Bros. Co., 92 Ark. 111, 122 S. W. 239; McCormick v. Hamilton, 23 Gratt. 561. Also if the market is controlled by the buyer, and perhaps if for any cause the local market is subject to such peculiar conditions as not fully to reflect the value of the goods, the market value at the nearest available market may be used to determine the seller's damage. Yellow Poplar Lumber Co. v. Chapman, 74 Fed. Rep. 444, 42 U. S. App. 21, 20 C. C. A. 503.

13 Dunkirk Colliery Co. v. Lever, 9 Ch. D. 20, 25.

14 Allen v. Jarvis, 20 Conn. 38; Barry v. Cavanagh, 127 Mass. 394. See also Chicago v. Greer, 9 Wall. 726, 19 L. Ed. 769. If the seller was under a duty to deliver, and to put on

§ 1380. Seller's damages where he has not obtained the goods. In the preceding sections it is assumed that the seller has acquired at the time of the breach the goods to which the contract relates, but owing to the defendant's repudiation this may not be the case. None or only part of the goods may yet have been acquired. If those not yet acquired must have been bought in the market by the plaintiff, the market price still furnishes the test of the value of the plaintiff's performance which must be deducted from the contract price to determine the amount of the defendant's liability. If, however, by the terms of the contract the plaintiff was to manufacture the goods, or if the defendant had notice when the contract was made that he planned to manufacture, the cost to the plaintiff of so doing (which may be much less than the market price of the completed goods) furnishes the test.15 That the seller cannot enhance damages by unnecessarily manufacturing the goods after a total breach or repudiation has been previously considered. 16 This rule based on cost of manufacture is not the less applicable because at the time of the breach the plaintiff had on hand goods of the description called for by the contract which he intended to appropriate to the contract. He had a right to change his mind, and he had a right to make sales to as many persons as would deal with him. Only where the plaintiff could not have manufactured other goods to fulfill the contract will the market value of what he has on hand be the amount to deduct from the contract price.

§ 1381. Damages for failure to deliver goods when property has passed.

As the goods belong to the buyer as soon as the property in them has passed, the amount of his recovery if the seller fails

the cars, the expense of doing so should be deducted. Willis v. Jarrett Const. Co., 152 N. C. 100, 67 S. E. 265.

15 Silkstone &c. Co. v. Joint Stock Coal Co., 35 L. T. Rep. (N. S.) 668; Hinckley v. Pittsburg &c. Co., 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967; Skeele Coal Co. v. Arnold, 200 Fed. 393, 118 C. C. A. 545;

Thistle Coal Co. v. Rex &c. Co., 132
Ia. 592, 109 N. W. 1094; Bullard v.
Eames, 219 Mass. 49, 106 N. E. 584;
Black River Lumber Co. v. Warner, 93
Mo. 374, 6 S. W. 210; Meyer Bros.
Drug Co. v. McKinney, 137 N. Y. App.
D. 541.

16 See supra, § 1299.

to deliver, whether the action is in tort or in contract, is prima facie the market value of the goods at the time and place when delivery should have been rendered. And if the price has been paid, such is the recovery actually allowed." Where the goods have no market value at that time and place the same principles must be applied when the property has passed as are applied when the breach of contract consists of a failure to transfer the property. 18 If the price has not been paid, however, the seller's breach of duty in failing to deliver the goods involves the result that the buyer is excused from his obligation to pay the price. Accordingly the contract price of the goods must be deducted from the plaintiff's recovery, and thus the measure of damages is in effect the same as if the property in the goods had not passed. 19

§ 1382. Allowance of higher subsequent value.

It has often been urged that the value of the goods at the time of the wrongful conversion or refusal to deliver by the seller may not fully compensate the buyer for the wrong done him. It may be supposed that the value of the goods increases rapidly immediately after the time fixed by the contract for delivery. The circumstances of the case may be such as to make it reasonably clear that the buyer would have retained the goods until the advance in price and would thus have got the advantage of their increased value. If the buyer has not paid the price it may be urged in answer to this that on the breach of the seller's obligation the buyer should buy elsewhere with his money and that if he did so he would then get the advantage of the subsequent increase in price. This answer seems sound and is generally accepted, but if the buyer has paid the price the reasoning is inapplicable. The buyer may not have money or credit to secure a further supply of goods, and if he has it is not just to deprive him of the right to make as many profitable contracts for his own benefit as his means and credit will permit. Accordingly in some jurisdictions, especially in regard to the sale

17 Deere v. Lewis, 51 Ill. 254; Winside Bank v. Lound, 52 Neb. 469, 72 N. W. 486; Hill v. Smith, 32 Vt. 433. See Uniform Sales Act, Sec. 66.

18 See supra, § 1379.

19 Chinery v. Viall, 5 H. & N. 288. See also Kennedy v. Whitwell, 4 Pick. 466.

of stocks and other articles of rapidly fluctuating value, the rule has been suggested that the plaintiff ought to receive damages based on the highest market price up to the time of trial.20

But this rule allows the plaintiff a very inequitable advantage over the defendant. Months and perhaps years may elapse be. fore the case comes to trial, and to give the plaintiff the advantage of the highest intermediate price is to give him a speculative advantage which it is hardly conceivable he would actually have realized to the full and perhaps not in any part. Accordingly the Supreme Court of the United States, following the later New York decisions, has qualified the rule by allowing only the highest intermediate value up to the time when the plaintiff, having discovered the defendant's default, could reasonably supply himself elsewhere with similar property.21 The ordinary rule of confining the plaintiff's damages to the value of the goods at the time of the defendant's breach of duty has at least the merit of certainty and ease of application. It is undoubtedly the general rule everywhere, and in many jurisdictions would doubtless be applied even in the case of stock or goods of fluctuating value.22 At least where the buyer has not

See Markham v. Jaudon, 41 N. Y. 235 (overruled); Baker v. Drake, 53 N. Y. 211, 13 Am. Rep. 507, 66 N. Y. 518, 23 Am. Rep. 80; Wright v. Bank of Metropolis, 110 N. Y. 237, 18 N. E. 79, 1 L. R. A. 289, 6 Am. St. Rep. 356. In Livesley v. Krebs Hop Co., 57 Oreg. 352, 107 Pac. 460, 112 Pac. 1, it was said that a seller who unreasonably delayed reselling goods on the buyer's account was liable for the highest value between the date when delivery was due and when the resale took place. (See also Krebs Hop Co. v. Livesley, 51 Or. 527, 92 Pac. 1084, 55 Or. 227, 104 Pac. 3, 59 Or. 574, 114 Pac. 944, 118 Pac. 165). In support of this the court cited Hamer v. Hathaway, 33 Cal. 117; Learock v. Paxson, 208 Pa. 602, 57 Atl. 1097. "Galigher v. Jones, 129 U. S. 193, 9 S. Ct. 335, 32 L. Ed. 658 (citing many State decisions); McKinley v.

Williams, 74 Fed. 94, 20 C. C. A. 312, 36 U. S. App. 749; Wilson v. Colorado Mining Co., 227 Fed. 721, 142 C. C. A. 245; Wallace v. Noble, 203 Mich. 58 168 N. W. 984.

22 Beaty v. Johnston, 66 Ark. 529, 52 S. W. 129; Bank of Culloden v. Bank of Forsyth, 120 Ga. 575, 48 S. E. 226, 102 Am. St. 115; Porter v. Buckfield Branch Railroad, 32 Me. 539; Belden v. Krom, 34 Wash. 184, 75 Pac. 636; McNeil v. Fultz, 38 Can. Supreme, 198. In Williams v. Reynolds, 34 L. J. Q. B. 221, and Kennedy v. Whitwell, 4 Pick. 466, the defendant had resold goods, subsequently to their conversion, at a higher price than the market value at the time of the defendant's breach of duty. Even in such a case, the plaintiff was held not entitled to the advantage of this enhanced price.

paid for the property contracted for, even if it is stock or goods of fluctuating value, most courts calculate the buyer's damages from the value of the property on the day of the breach. 23 How far the principles stated in this section may be qualified by the allowance of consequential damages is elsewhere considered. 24

§ 1383. Buyer is entitled to the difference between the market and contract prices.

The application of the general principle of compensation can be summed up by the same formula where the title has not passed and the buyer is the plaintiff as in the case where the seller is the plaintiff. "The proper measure of damages in general is the difference between the contract price and the market price of such goods at the time when, and place where, the contract is broken, because the purchaser having the money in his hands may go into the market and buy."25

23 Russ v. Tuttle, 158 Calif. 226, 110 Pac. 813; Wilson v. London &c. Finance Corp., 14 T. L. R. 15; Coffin v. State, 144 Ind. 578, 43 N. E. 654, 55 Am. St. 188; Sloan v. McKane, 131 N. Y. App. D. 244, 115 N. Y. S. 648; Patterson v. Plummer, 10 N. Dak. 95, 86 N. W. 111. Cf. In re Swift, 114 Fed. 947; Vos v. Child, 171 Mich. 595, 137 N. W. 209, 43 L. R. A. (N. S.) 368.

24 §§ 1347, 1355.

25 Barrow v. Arnaud, 8 Q. B. 595, 609. To the same effect are Grand Tower Co. v. Phillips, 23 Wall. 471, 23 L. Ed. 71; Capen v. Glass Co., 105 Ill. 185; Rahm v. Deig, 121 Ind. 283, 23 N. E. 141; Bucyrus Hay Co. v. Cincinnati Grain Co. (Ky.), 119 S. W. 182; Kribs v. Jones, 44 Md. 396; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502, 39 Am. St. Rep. 415; Austrian v. Springer, 94 Mich. 343, 54 N. W. 50, 34 Am. St. Rep. 350; Talcott v. Freedman, 149 Mich. 577, 113 N. W. 13; Pittsburgh Coal Co. v. Northy, 158 Mich. 530, 123 N. W. 47; Olson v. Sharpless, 53 Minn. 91, 55 N. W. 125; Hewson Supply Co. v. Minnesota Brick Co., 55 Minn. 530, 57 N. W. 129;

Eaves v. W. H. Harris & Sons Co., 95 Miss. 607, 49 So. 258; McKnight v. Dunlop, 5 N. Y. 537, 55 Am. Dec. 370; Dana v. Fiedler, 12 N. Y. 40, 62 Am. Dec. 130; Cahen v. Pratt, 69 N. Y. 348, 25 Am. Rep. 203; Saxe v. Penokee Lumber Co., 159 N. Y. 371, 54 N. E. 14; Sharpsville Furnace Co. v. Snyder, 223 Pa. 372, 72 Atl. 786; Thomas Raby, Inc., v. Ward-Meehan Co., 261 Pa. 468, 104 Atl. 750; Hill v. Smith, 32 Vt. 433; Austin v. Langlois, 83 Vt. 104, 74 Atl. 489; Cockburn v. Ashland Lumber Co., 54 Wis. 619, 12 N. W. 49.