Breach of agreement to sell personal property, not paid for. Parke, B., said: "The inquiry is, how much worse off is the plaintiff by the diminution of the value of the land, or the loss of the purchase money in consequence of the non-performance of the contract." 3308. The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has not been fully paid in advance, is deemed to be the excess, if any, of the value of the property to the buyer, over the amount which would have been due to the seller under the contract, if it had been fulfilled. NOTE.-Dana vs. Fiedler, 12 N. Y., p. 40; M'Knight vs. Dunlop, 5 N. Y., p. 537; Portman vs. Middleton, 4 C. B. (N. S.), p. 322; Shaw vs. Holland, 15 M. & W., p. 136; Shepherd vs. Hampton, 3 Wheat., p. 200; see Clark vs. Pinney, 7 Cow., p. 681; Pinney vs. Gleason, Wend., p. 393; see, also, Debovich vs. Emeric, 12 Cal., p. 171. The rule is declared to be the highest market price at the place of delivery, or if there be no market, then at the nearest market, deducting the cost of carrying it to market. A vendee can sustain no action without tendering the price, and if the articles are worth no more than the price tendered he may be said to lose nothing if they are withheld. They may have gained nothing up to the time they were to be delivered, but may have gained greatly since, and it is for this the vendee demands compensation.-3 Parsons on Contracts, pp. 204-5. Being somewhat dependent on full or partial payments and other facts, the time at which the price of the goods is to be estimated in several States and in many decisions does not seem to be fully settled. Where the price has not been paid the authorities generally agree that the value is to be fixed at that existing at the time of the promised delivery. In support of this view, 3 Parsons on Contracts, in Note "K," pp. 205-6, cites an array of nineteen cases, among them the case of Tobin & Duncan vs. Post & Upham, 3 Cal., p. 373, rendered by Chief Justice Murray as early as October, 1853, and which has not been overruled, but sustained in 12 Cal., pp. 171-185, the case above cited and one in next note, wherein the learned Justice holds this language: "The true rule of damages was the price agreed on between the parties and the market value of the goods at the time of the breach of the contract." As to what constitutes market value, and the mode of determining and proving it, see Bly- 3309. The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has been fully paid to him in advance, is deemed to be the same as in case of wrongful conversion. NOTE.-See Clark vs. Pinney, 7 Cow., p. 681; Dey vs. Dox, 9 Wend., p. 129; Elliott vs. Hughes, 3 Fost. & Finl., p. 387. A breach of contract for the sale of personal property subjects the party making the breach to damages in the difference between the amount of the contract price and the value of the article sold.-Crosby vs. Watkins, 12 Cal., p. 85; Tobin vs. Post, 3 Cal., p. 373. In the case of Maher vs. Riley, 17 Cal., p. 415, the contract price being paid and there was a failure to deliver, the Court permitted a verdict for the contract price, with ten per cent added as damages, and it was held not to be error. In the case in the text, damages may be allowed equal to the highest market value at any time after breach and before verdict or interest on the value of the property.-See Sec. 3336, and note. Breach of agreement to sell personal property Breach of agreement 3310. The detriment caused by the breach of a buyer's agreement to accept and pay for personal property, the title to which is vested in him, is deemed property to be the contract price. NOTE.-Orr vs. Bigelow, 20 Barb., p. 21; Bement vs. Smith, 15 Wend., p. 493. Of course the seller cannot recover the full price, if he has resold the goods.See Lamond vs. Davall, 9 Q. B., p. 1030. to pay for personal sold. agreement to buy personal 3311. The detriment caused by the breach of a Breach of buyer's agreement to accept and pay for personal property, the title to which is not vested in him, is deemed property. to be: 1. If the property has been resold, pursuant to Section 3049, the excess, if any, of the amount due from Same. Breach of warranty of title to personal property. the buyer, under the contract, over the net proceeds of the resale; or, 2. If the property has not been resold in the manner prescribed by Section 3049, the excess, if any, of the amount due from the buyer, under the contract, over the value to the seller, together with the excess, if any, of the expenses properly incurred in carrying the property to market, over those which would have been incurred for the carriage thereof, if the buyer had accepted it. NOTE.-Subd. 1.-Sands vs. Taylor, 5 Johus., p. 395. Subd. 2.-Boorman vs. Nash, 9 B. & C., p. 145. This provision seems to be only reasonable. Some things are marketable only in large cities, yet are manufactured or owned, in many cases, by persons living in the country. If such things should be bought by a resident of the country, the expense of forwarding them to him might be trifling compared with the expense of transportation to the nearest market. Justice to the buyer requires that the market price should be allowed to him, but justice to the seller requires that he should be allowed the increased cost of sending the things to market. See on entire section Parsons on Contracts, 3d vol., pp. 28-9, 208-9, and notes. In Green vs. Bateman, 2 Woodb. & M., p. 359, it was held where there was such misunderstanding as to price that no express contract could be proved, the vendee offering to return the goods, which was refused, and he sold them, the vendee was treated as the trustee of the vendor, liable to vendor for the price received, deducting compensation for his services. 3312. The detriment caused by the breach of a warranty of the title of personal property sold, is deemed to be the value thereof to the buyer, when he is deprived of its possession, together with any costs which he has become liable to pay in an action brought for the property by the true owner. NOTE. What constitutes a warranty in the numerous cases referred to in this Article, see Secs. 17631778, ante, inclusive. This note is referred to under the Title "Warranty." A different rule has been laid down in New York, conforming to the rule concerning real property (Armstrong vs. Percy, 5 Wend., p. 535); but this section states the law as it appears to 3313. The detriment caused by the breach of a warranty of the quality of personal property is deemed Breach of quality of warranty of personal to be the excess, if any, of the value which the prop- property. erty would have had at the time to which the warranty referred, if it had been complied with, over its actual value at that time. NOTE.-Tallman vs. Clute, 3 Barb., p. 424; Cary vs. Gruman, 4 Hill, p. 625; Comstock vs. Hutchinson, 10 Barb., p. 211; Roberts vs. Carter, 28 Barb., p. 462; Milburn vs. Belloni, 34 Barb., p. 607; 12 Abb. Pr., p. 451; Voorhees vs. Earl, 2 Hill, p. 288; Lattin vs. Davis, Hill & D. Supp., p. 9; Muller vs. Eno, 14 N. Y., p. 597; Prentice vs. Dike, 6 Duer, p. 220; Fales vs. MeKeon, 2 Hilt., p. 53; Hilliard on Torts, Vol. 2, pp. 181, 211, 212, and Note (w) on p. 180; Harrison vs. Berkley, 1 Strobh., p. 548. Cary vs. Gruman, first above cited, was an action for the breach of warranty in the sale of a horse. The measure of damages was held to be the difference between what would have been its value as a sound horse and its value with its defects. Cowen, J., Broach of warranty of special purpose. held that the agreed price is strong evidence of actual value. The vendee, if he objects to the articles as such not bargained for, may rescind the contract as a whole. He cannot retain part and sue for non-delivery of the whole, nor can he require the delivery of the whole and sue for inferiority. Shields vs. Potter, 2 Sandf., p. 262, was an action on a contract for pig iron, part being delivered but rejected, not being such as contracted for. It rose in price, and Oakly, J., held that they could not repudiate as to the part undelivered and retain the part delivered, but they were held to pay market price of part delivered. The damage to be recovered is the difference between what the goods are and what they ought to be.-3 Parsons on Contracts, pp. 211, 212. 3314. The detriment caused by the breach of a quality for warranty of the fitness of an article of personal property for a particular purpose, is deemed to be that which is defined by the last section, together with a fair compensation for the loss incurred by an effort in good faith to use it for such purpose. NOTE.-Passenger vs. Thirburn, 35 Barb., p. 17; Randall vs. Roper, E. B. & E., p. 84. What constitutes a warranty is fully discussed in 1 Parsons on Contracts, pp. 573-593, and the numerous and recent authorities there cited. See 1 Parsons on Contracts, p. 586. Fitness of the article for the purpose for which it is ordered is here discussed.-See Beals vs. Olmstead, 24 Vt., p. 114. The case of Jones vs. Bright, 5 Bing., p. 533, is a leading case on this point in the English Courts. The plaintiff applied to defendant, a manufacturer thereof, for copper sheathing for vessels. Defendant said: "I will supply you well." It was taken and used, and lasted only about four months, instead of four years, the "usual time." An implied warranty was held to have been made. There is a distinction between the purchase of an article already existing or manufactured, and one ordered to be made or supplied to perform or supply a certain purpose--the difference is in ordering a thing for a special purpose, and a special thing, whether for a special purpose or not. If the specific thing is ordered, the vendee is under the rule of caviat emptor; but if he orders a thing for a special purpose, the risk is on the vendor.-1 Parsons on Contracts, pp. 587, 588; Keates vs. Coddington, 2 E. L. & E., p. 320, S. C.; 10 |