§ 9. Specific Performance by the Seller may be decreed.

335. Suits by the purchaser of goods for specific performance by the seller are rarely maintainable. This is not because of the personal nature of the subject-matter of sale contracts, but "because damages at law calculated upon the market price of the stock or goods are as complete a remedy to the purchaser as the delivery of the stock or goods contracted for, inasmuch as with the damages he may purchase the same quantity of the like stock or goods." 1

"3

It happens, however, at times, that the articles contracted for are of such a character that they cannot be duplicated in the market, and their value cannot be properly ascertained by a jury. Of this kind is “an old altar-piece, made of silver, remarkable for a Greek inscription and dedication to Hercules;" 2 or "a silver tobacco-box. . . adorned with several engravings of public transactions and heads of distinguished persons;' or china jars of unusual beauty, rarity, and distinction;" 4 or "a faithful or family slave, endeared by a long course of service or early association." 5 In the case last cited, it was declared that "no damages can compensate; for there is no standard by which the price of affection can be adjusted, and no scale to graduate the feelings of the heart." Letters patent and patented articles are of the same class.

336. The principle governing the foregoing cases applies to contracts for the sale of claims against insolvent persons. A jury called upon to value such claims would be forced to resort to conjecture. It applies, also, to a contract for the sale of

1 Adderley v. Dixon, 1 Sim. & Stu. 607, 610 (1824); 2 Keener's Cas. Eq. Juris. 13.

2 Duke of Somerset v. Cookson, 3 P. Wms. 390 (1735).

Fells v. Read, 3 Ves. 70 (1796).

4 Falcke v. Gray, 4 Drewry, 651 (1859).

Williams v. Howard, 3 Murphey (N. C.), 74, 80 (1819).

Cogent v. Gibson, 33 Beav. 557 (1864); 2 Keener's Cases on Eq. Juris. 86; Corbin v. Tracy, 34 Conn. 325 (1867); 2 Keener's Cases on Eq. Juris. 34; Hull v. Pitrat, 45 Fed. 94 (1891); Adams v. Messinger, 147 Mass. 185; 17 N. E. 491 (1888); 2 Keener's Cases on Eq. Juris. 41.

7 Cutting v. Dana, 25 N. J. Eq. 265 (1874); 2 Keener's Cases on Eq. Juris. 60.

corporate stock which has never been sold in the market, and which by the agreement between the parties is to be transferred only in accordance with a stipulated appraisal,' as well as to contracts for goods of which the seller has the only supply fairly available to the buyer. In such cases the extreme difficulty, if not impossibility, of giving the buyer adequate damages at law warrants a court of equity in decreeing specific performance by the seller.3

§ 10. Damages for Breach of an Essential Term of the Contract.

337. An extended discussion of this topic would not be consistent with the plan of the present work; and yet a brief statement of the general principles governing the assessment of damages for the seller's breach of his contract is proper, if not

necessary.

338. General Rule. - "Where a contract to deliver goods at a certain price is broken, 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 the contract is broken, because the purchaser, having the money in his hands, may go into the market and buy."4 Accordingly, one who contracts for the purchase of dies, to be used in the manufacture of lanterns, is entitled to recover as damages from the seller, upon the latter's failure to deliver the dies, the difference between the contract price and the price at which they could be obtained from other sellers.5 Such also is the measure of dam

1 N. Eng. Trust Co. v. Abbott, 162 Mass. 148, 154; 38 N. E. 432 (1894). Equit. Gas Co. v. Baltimore Co., 63 Md. 285 (1884); 2 Keener's Cases on Eq. Juris. 35.

This topic is now covered by Sale of Goods Act, § 52, and The Uniform Sales Act, § 68. In Quarton v. Law Book Co., 143 Ia. 517, 535; 121 N. W. 1009 (1909), it is declared that a subscriber for a set of defendant's Cyclopedia could have specific performance only upon paying all instalments due, and showing some excuse for non-performance on his part.

Barrow v. Arnaud, 8 Q. B. 595, 609 (1846); Billmeyer v. Wagner, 91 Pa. St. 92, 95 (1879); Peace River Co. v. Grafflin, 58 Fed. 550, 552 (1893).

Rochester Lantern Co. v. Stiles & Parker Co., 135 N. Y. 209, 218; 31 N. E. 1018 (1892).

ages for the seller's breach of his contract to sell and deliver municipal bonds.1 But this rule does not compel the purchaser to go into the market and actually buy the goods. "Proof of the contract price at the time and place of delivery establishes a basis for certain, not speculative profits." 2

As the measure of damages in these cases, "is the loss directly and naturally resulting, in the ordinary course of events, from the seller's breach of contract," it follows that the buyer may recover payment by him for freight and storage of goods rightfully rejected for nonconformity to contract. If the property is worthless damages must be nominal. If the parties agree upon a sum as liquidated damages, that is the limit of recovery.6

339. How Market Value is established. It has been judicially declared that "the market value of property is established when other property of the same kind has been the subject of purchase and sale to so great an extent and in so many instances that the value becomes fixed." It is not to be inferred from this holding, that one who breaks his contract for the sale of goods is not liable in damages to the other party, because the latter cannot establish a fixed market price. the case last cited, evidence was given by expert witnesses concerning the value of the property in question; and the plaintiff recovered as damages the difference between the contract price and the value of the property as found by the referee after weighing the expert evidence.R

In

340. Market Price at Time and Place of Delivery. If the

1 Coffin v. State, 144 Ind. 578; 43 N. E. 654 (1896); Zimmermann v.

Zimmermann, 193 N. Y. 486; 86 N. E. 540 (1908).

2 Maybank & Co. v. Rogers, 88 S. C. 572; 71 S. E. 48 (1911). Sale of Goods Act, § 51 (2); Uniform Sales Act, § 67 (2).

4 Ash v. International Harvester Co. of Am.,

Miss. -; 58 So. 529 (1912); Reeves & Co. v. Younglove, 148 Ia. 699, 705; 127 N. W. 1017 (1910).

Barnes v. Brown, 130 N. Y. 372, 385; 29 N. E. 760 (1892).
Yoder v. Strong, 227 Pa. 432; 76 At. 176 (1910).

7 Sloan v. Baird, 162 N. Y. 327; 56 N. E. 752 (1900).

8 Murray v. Stanton, 99 Mass. 345 (1868); Cody v. Am. Ed. Co., 131 Ill. App. 240 (1907); Ideal Wrench Co. v. Garvin M. Co., 92 App. Div. 187, 193; 87 N. Y. Supp. 41 (1904); 181 N. Y. 573; 74 N. E. 1118 (1905).

contract fixes the time and place of delivery, the market price at such time and place is to be resorted to in estimating the damages. "The wrong is done when the contract is broken, and the value of the thing when and where it ought to be delivered, is the indemnity."

"1

If they are not fixed by the contract, we have seen that the law regulates them. In such a case, the date of the seller's refusal to deliver is the time at which the market price is to be taken. "A party's right of recovery must be deemed fixed at some time, and he cannot wait for an indefinite period and speculate upon the changes in the market while taking upon himself none of the risks of decline. . . . A recovery which, at the time of the demand and refusal, would have enabled the party to purchase other property of the like kind and of equal value at the same place, is, in the absence of special circumstances, as nearly just as any the law can provide for." 2

341. No Available Market. It often happens that the buyer has no market to which he can resort for the purchase of the stipulated goods. In such a case his loss cannot be determined by a comparison of the contract price with the market price, for there is no market price; it must be determined by some other method.

The general principle to be applied in these cases is that upon which the rule, already considered, rests. It was announced in a leading case in these words: "The party injured is entitled to recover all his damages, including gains prevented as well as losses sustained; and this rule is subject to but two conditions. The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract; that is, must be such as might naturally be expected to follow its violation; and they must be certain, both in their nature and in respect to the cause from which they proceed." 3 Hence, if there is no market for the stipulated goods at the

1 Shaw v. Nudd, 8 Pick. (Mass.) 9, 14 (1829).
2 Chadwick v. Butler, 28 Mich. 349, 353 (1873).

Griffin v. Colver, 16 N. Y. 489, 494, 495; 69 Am. Dec. 718 (1857); Johnston v. Faxon, 172 Mass. 466; 52 N. E. 538 (1899); Burdick's Cases on Sales, 714; Berg v. Rapid Motor Vehicle Co., 78 N. J. L. 724; 75 At. 933 (1909).

time and place of delivery, the buyer may show his loss by evidence of "the value which he would have received had the seller faithfully performed his contract;"1 and this value may be arrived at by adding to the prime cost the expense of transit, and a reasonable profit to the buyer; 2 or the loss may be shown by evidence of the price at which the buyer had contracted to sell them, whether the contract of sub-sale had been notified to the seller or not.3

If goods similar to those contracted for can be obtained at the place of delivery while the exact goods are not available, the buyer will be justified in purchasing such goods to replace those which the seller has failed to furnish, although their market price may be higher than the fair value of the stipulated articles. Under such circumstances, it has been held, "the value of the goods contracted to be supplied by the defendants" (the sellers) "at the time of their breach of contract was the price the plaintiff" (the buyer) "had to give for the substituted article." 5

341 (a). When a Promissory Condition is Fraudulent, and the buyer rescinds the contract because of the fraud and refuses to keep the goods, he cannot recover damages for breach of the contract; but is limited to such special damages to his reputation or business, as he can show to have been the natural and proximate consequence of the fraud. If he has paid for the goods he can recover the price."

1 Bridge v. Wain, 1 Stark. 504, 506 (1816), (scarlet cuttings for the Chinese market).

2 O'Hanlan v. Great W. Ry., 6 B. & S. 484 (1865).

Stroud v. Austin, 1 C. & E. 119 (1883); Grébert-Borgnis v. Nugent, 15 Q. B. D. 85, 87, 88 (1885); Burdick's Cases on Sales, 555; Loescher v. Deisterberg, 26 Ill. App. 520 (1887); Trigg v. Clay, 88 Va. 330; 29 Am. St. R. 723; 13 S. E. 434 (1891).

Gruen v. Ohl & Co., 81 N. J. L. 626; 80 At. 547 (1911), applying § 67 (3) of the Uniform Sales Act.

Hinde v. Lindell, L. R. 10 Q. B. 265, 270 (1875); Hardwood Lumber Co. v. Adam & Steinrugge, 134 Ga. 821; 68 S. E. 725 (1910).

Am. Pure Food Co. v. Elliott, 151 N. C. 393, 397; 66 S. E. 451 (1909), citing Railroad v. Hodnett, 29 Ga. 461 (1859); Warren v. Cole, 15 Mich. 265 (1867).

7 Smith v. Alphin, 150 N. C. 425; 64 S. E. 210 (1909). See Sale of Goods Act, § 54; Uniform Sales Act, § 70.