The rule in regard to the difference between the market price and the contract price is applicable where the right of action. is based upon repudiation as well as where based upon actual breach.26 Where the goods are by terms of the contract deliverable in instalments, the same principle is to be applied. And if the value of the goods varies during the period of the contract, the plaintiff's damages must be separately calculated for each instalment.27 Sometimes when the seller is unable to fulfill his obligation at the time when performance was due, by mutual consent or by the election of the buyer to continue the contract in spite of the seller's default, the time for delivery is extended. The damages are then to be calculated as of the time fixed by the later agreement.28 If the seller has prepaid the price no deduction of course must be made from the market price.29 And on the other hand if the market price is no greater than the contract price, the buyer though he has a right of action can recover only nominal damages.30

mate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver." For decisions under this section, see Phillips Sheet & Tin Plate Co. v. Boyer, 133 Md. 119, 105 Atl. 166; Gruen v. Ohl & Co., 81 N. J. L. 626, 80 Atl. 547; Pope v. Ferguson, 82 N. J. L. 566, 83 Atl. 353; Fowler v. Gress Mfg. Co., 94 N. Y. Misc. 650, 158 N. Y. S. 524; Salsberg v. Spero, 106 N. Y. Misc. 436, 175 N. Y. S. 839; N. P. Sloan Corp. v. Linton, 260 Pa. 569, 103 Atl. 1011; Allen v. Wolf River Lumber Co., 169 Wis. 253, 172 N. W. 158.

*Leigh v. Paterson, 8 Taunt. 540; Emory Mfg. Co. v. Salomon, 178 Mass. 582, 60 N. E. 377; Austrian v. Springer, 94 Mich. 343, 54 N. W. 50.

Brown v. Muller, L. R. 7 Ex. 319; Ex parte Llansamlet T. P. Co., L. R. 16 Eq. 155; Barningham v. Smith, 31 L. T. R. 540; Sizer v. Melton, 129 Ga. 143, 58 S. E. 1055;

Delaware, etc., H. C. Co. v. Mitchell, 92 Ill. App. 577; Salsberg v. Spero, 106 N. Y. Misc. 436, 175 N. Y. S. 839; Sharpsville Furnace Co. v. Snyder, 223 Pa. 372, 72 Atl. 786; Hill v. Chipman, 59 Wis. 211, 18 N. W. 160.

28 Ogle v. Earl Vane, L. R. 2 Q. B. 275; Hickman v. Haynes, L. R. 10 C. P. 598; Ralli v. Rockmore, 111 Fed. 874; Consumers' Bread Co. v. Stafford County Flour Mills Co., 239 Fed. 693, 152 C. C. A. 527; Brown v. Sharkey, 93 Iowa, 157, 61 N. W. 364; Schultz v. Glickstein, (Supr. Ct. App. Term), 168 N. Y. S. 490.

29 Startup v. Cortazzi, 2 Cromp. M. & R. 165; Winside State Bank v. Lound, 52 Neb. 469, 72 N. W. 486; Tompkins v. Lamb, 195 N. Y. 518, 88 N. E. 1133; Smethurst v. Woolston, 5 W. & S. 106; Humphreysville Copper Co. v. Mining Co., 33 Vt. 92; Hill v. Smith, 32 Vt. 433.

30 Valpy v. Oakley, 16 Q. B. 941; Moses v. Rasin (C. C.), 14 Fed. 772; Acme Elevator Co. v. Johnson, 141 Ky. 718, 133 S. W. 784; Fessler v. Love, 48 Pa. St. 407; Wire v. Foster,

§ 1384. Buyer's damages where there is no market price. It may be that no market exists at the place where delivery was due. The nearest available market furnishes the basis under such circumstances; the expense of obtaining and transporting the goods from that market to the place where delivery is due being added.31 It will not infrequently happen that goods have no market value or none which can be determined with any exactness. Wherever goods are of a special kind or are of a peculiarly good or bad grade or quality, this is likely to occur. In such a case the court must determine the value of the goods as best it can by considering the expense to the buyer of securing similar goods, or goods which would equally well serve the purpose; 32 33 or by the loss of profit suffered, or the added expense incurred.34 If the goods have no value whatever, the buyer can never be entitled to more than nominal damages; 35 and as the burden is on the buyer to prove his damages, if he fails

62 Iowa, 114, 17 N. W. 174; Merriman v. Machine Co., 96 Wis. 600, 71 N. W. 1050; Anderson v. Savoy, 142 Wis. 127, 124 N. W. 1053. The result is the same if the plaintiff fails to prove a market price or that this standard is inapplicable. Harman v. Washington Fuel Co., 228 Ill. 298, 81 N. E. 1017.

31 Grand Tower Co. v. Phillips, 23 Wall. 471, 23 L. Ed. 71; Marshall v. Clark, 78 Conn. 9, 60 Atl. 741; Capen v. Glass Co., 105 Ill. 185; Tuttle Chapman Coal Co. v. Coaldale Fuel Co., 136 Ia. 382, 113 N. W. 827; South Gardiner Lumber Co. v. Bradstreet, 97 Me. 165, 53 Atl. 1110; National Tar Co. v. Gaslight Co., 189 Mass. 234, 75 N. E. 625; Cahen v. Platt, 69 N. Y. 348, 25 Am. Rep. 203; Nottingham Coal & Ice Co. v. Preas, 102 Va. 820, 47 S. E. 823.

32 Wilmoth v. Hamilton, 127 Fed. 48, 61 C. C. A. 584; Vulcan Iron Works v. Roquemore, 175 Fed. 11, 99 C. C. A. 77; Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52; Jordan v. Patterson, 67 Conn. 473, 35 Atl.

521; Johnston v. Faxon, 172 Mass. 466, 52 N. E. 539; F. W. Kavanaugh Mfg. Co. v. Rosen, 132 Mich. 44, 92 N. W. 788, 102 Am. St. Rep. 378; Ideal Wrench Co. v. Garvin Machine Co., 92 N. Y. App. Div. 187, 87 N. Y. S. 41, 181 N. Y. 573, 74 N. E. 1118; McHose v. Fulmer, 73 Pa. St. 365; Davis v. School Furniture Co., 41 W. Va. 717, 24 S. E. 630. In Hinde v. Liddell, L. R. 10 Q. B. 265, the court took into consideration the expense of obtaining a substitute for the goods contracted for. But an unnecessarily expensive substitute can not be taken as the measure of the buyer's damages. Warren v. Stoddart, 105 U. S. 224, 26 L. Ed. 1117.

33 Talcott v. Freedman, 149 Mich. 577, 113 N. W. 13; Eddy v. Fay Fruit Co. (R. I.), 67 Atl. 586.

34 British &c. Mfg. Co. v. Underground &c. Electric Co. [1912] A. C. 673.

35 Barnes v. Brown, 130 N. Y. 372, 29 N. E. 760.

to prove the market price, or some other appropriate measure of damages, his recovery is only nominal. 36

In many cases the plaintiff's damage may exceed the difference between the contract and the market price. In what cases such special or consequential damage can be recovered will be considered in other sections.37

§ 1385. Limitation of the buyer's right to recover the difference between the market price and the contract

price.

The test of market value is, at most, but a means of getting at the buyer's loss, and under special circumstances it may cease to be exact or may become inapplicable. The buyer may be able to get similar goods for less than the market price, and if he does buy goods against the defendant's contract his damages must be based on his actual loss; namely, the difference between the price he paid and that which he would have had to pay under the contract.38

If the buyer had paid for the goods it seems clear that he would be under no obligation to put out a further sum of money in order to take advantage of a favorable offer to purchase such goods elsewhere at less than market price; and if the buyer chooses to take advantage of an exceptional chance to buy goods cheaply, and does not profess to make the purchase for the account of the defaulting seller, there seems no reason why the buyer should not be allowed to claim the benefit of the transaction for himself and not give the seller the advantage of it. Even though the buyer has not paid the price, it may be urged that he is under no duty to the defaulting seller to give him the advantage of a special opportunity to buy at a low price if only a limited amount of the goods can be obtained at that price. It seems, however, to be generally assumed that the buyer is under a duty to purchase the goods at a diminished price on the seller's account if he can do so, and even though his opportunity to purchase at a reduced price is from the de

"Harman v. Washington Fuel Co., 228 III. 298, 81 N. E. 1017. "Supra, § 1347; infra, § 1393. "Theiss v. Weiss, 166 Pa. St. 9,

31 Atl. 63, 45 Am. St. Rep. 638; Morris v. Supplee, 208 Pa. St. 253, 57 Atl. 566.

faulting seller himself, it has been held he must take advantage of the opportunity in order to minimize the damages; 39 for not infrequently the defaulting seller offers to sell to the buyer the goods contracted for on terms less favorable than those agreed upon in the contract, but more favorable than could be obtained by purchase in the market. Especially common is the offer of a seller, who has contracted to sell on credit and who later refuses to do so, to sell for cash. Generally such an offer is made as an offer of settlement and as the basis for an accord and satisfaction. If so the buyer clearly need not accept the offer, and this is generally recognized by the decisions.40 Nor need he do so if his pecuniary circumstances are such as to make payment of cash an undue hardship.41 Some cases, indeed, seem broadly to deny any limitation of the buyer's damages because of such an offer.42 But if acceptance of the offer of the seller clearly will diminish the buyer's damages, and will subject him to no unreasonable hardship, the principle that a plaintiff cannot recover for avoidable consequences seems applicable.43 In any event, should the buyer pay more than the market price, he cannot charge the excess against the seller, for not the seller's wrong but his own folly was the cause of the excessive payment. 44

§ 1386. Other cases where the buyer's damages are limited. Owing to other special circumstances the buyer may actually suffer less damage from the seller's failure to deliver than the 39 Lawrence v. Porter, 63 Fed. 62, 22 U. S. App. 483, 11 C. C. A. 27, 26 L. R. A. 167.

40 Lawrence v. Porter, 63 Fed. 62, 11 C. C. A. 27, 22 U. S. App. 483, 26 L. R. A. 167; Campfield v. Sauer, 189 Fed. 576, 111 C. C. A. 14, 38 L. R. A. (N. S.) 837; Coppola v. Marden, Orth & Hastings Co., 228 Ill. 281, 118 N. E. 489; Plesofsky v. Kaufman, 140 Tenn. 208, 204 S. W. 204, 1 A. L. R. 433. See also Hirsch v. Georgia Iron & Coal Co., 169 Fed. 578, 95 C. C. A. 76.

41 Ibid. See also Weber Implement Co. v. Acme Harvester Mach. Co., 268 Mo. 363, 187 S. W. 874.

42 Louis Cook Mfg. Co. v. Randall, 62 Iowa, 244, 17 N. W. 507; Frohlich v. Independent Glass Co., 144 Mich. 278, 107 N. W. 889; F. W. Kavanaugh Mfg. Co. v. Rosen, 132 Mich. 44, 92 N. W. 788, 102 Am. St. 378; Coxe v. Anoka Waterworks &c. Co., 87 Minn. 56, 91 N. W. 265. See also Havermeyer v. Cunningham, 35 Barb. 515; Lakner v. Korn (N. Y. Misc.), 164 N. Y. S. 165.

43 See cases supra, n. 40; also Payzu v. Saunders, [1919] 2 K. B. 581; Warren v. Stoddart, 105 U. S. 224, 26 L. Ed. 1117.

44 See Gruen v. Ohl, 81 N. J. L. 626, 631, 80 Atl. 547.

difference between the contract price and the market price; as for instance where if the contract had been kept the buyer must have put the goods to a less advantageous use than selling them at the market price. If the plaintiff was under no obligation to put the particular goods to be furnished by the seller to this use he would have a right to change his mind and realize the market value. In such a case, putting the goods to their normal and ordinary use would be a possibility which should have been contemplated by the seller even though he knew prior to the formation of his contract of the buyer's intention. But the buyer may have been bound by a sub-contract with a third person to deliver to the latter the very goods which he expected to obtain from the defendant. Here there is authority for restricting the plaintiff to the profit which he would have obtained had he performed his contract with the third person.45 The Uniform Sales Act, 46 however, provides that a buyer's measure of damages in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver." The use of the word "greater" in this passage negatives the possibility of restricting the plaintiff's damages in the case supposed, and this conclusion seems nearly if not quite always sound on principle. The extent of the wrong which the defendant has committed is measured by the difference between the market price and the contract price, and though the full amount of the reparation for this wrong would not have accrued to the profit of the plaintiff if the contract had been carried out, the profit which he would have made, added to the liability to which he exposed himself to the third person with whom he contracted, together amount to the full sum for which the defendant should be held. 48 It is only in the

"Messmore v. New York Shot & Lead Co., 40 N. Y. 422; Isaacson v. Crean, 165 N. Y. S. 218. See also Wertheim v. Chicoutimi Pulp Co. [1911] A. C. 301; Williams v. Agius, [1914] A. C. 510, per Lord Haldane;

Foss v. Heineman, 144 Wis. 146, 128 N. W. 881.

See supra, § 1383 n. 25.

47 Sec. 67 (subdivision 3). And see Goldfarb v. Campe Corp., 164 N. Y. S. 583, 99 N. Y. Misc. 475.

48 See Floyd v. Mann, 146 Mich.