§ 2. Damages for Non-Acceptance. 366. Ordinarily, these are the difference between the contract price and the market price at the time and place for delivery. If the latter equals or exceeds the former, or if no price is named in the contract, or if by its terms the seller is to receive the market price, or if the seller fails to show a difference between the price agreed upon and the market price, his recovery will be confined to nominal damages. The fact, however, that the seller disposed of the goods, after the buyer's breach, at a higher price than the buyer was to pay does not affect his claim to damages.5 It may happen, 6 367. When Market Price is abnormal. however, that the market price, at the time and place for delivery, does not represent the fair value of the goods by reason of a wrongful combination of those controlling the price, or because the seller monopolizes the supply at the place where delivery is to be made. In such cases, as well as in cases where there is no market for the goods at the time and place for delivery, other evidence must be resorted to for the purpose of showing "the loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract." 8 The seller, in disposing of the goods, which are wrongfully rejected by the purchaser, must act in a reasonable manner, but is not "under any obligation to do anything otherwise that his action should have been for damages caused by the vendee's breach of his contract to accept, and not for the purchase price. 1 Tufts v. Bennett, 163 Mass. 398; 40 N. E. 172 (1895); Ridgley v. Mooney, 16 Ind. App. 362; 45 N. E. 348 (1896); Burdick's Cases on Sales, 570; Minneapolis T. M. Co. v. McDonald, 10 N. D. 408; 87 N. W. 993 (1901); Southern Cotton Oil Co. v. Heflin, 99 Fed. 339 (1900). 2 Foos v. Sabin, 84 Ill. 564 (1877). McGrath v. Cannon, 55 Minn. 457, 461; 57 N. W. 150 (1893). Unexcelled Fireworks Co. v. Polites, 130 Pa. St. 536; 18 At. 1058 (1889); Burdick's Cases on Sales, 173; McGrath v. Gegner, 77 Md. 331, 340; 26 At. 502 (1893). " W. U. Tel. Co. v. Nye & S. G. Co., 70 Neb. 251; 97 N. W. 305; 63 L. R. A. 803 (1903). Kountz v. Kirkpatrick, 72 Pa. 376; 13 Am. R. 687 (1872). 7 Grand Tower Co. v. Phillips, 23 Wall. (U. S.) 471 (1874). 8 Sale of Goods Act, § 50 (2); Uniform Sales Act, § 64 (2). Hence, if there than in the ordinary course of business." is no market for the goods at the place of delivery, he may ship them to "some other reasonably convenient place" and "deduct the reasonable cost of transportation to that place" from their market value there; 2 or he may show their fair value at the place stipulated for delivery, by proving the market price of like goods at or about the time for delivery in neighboring places.3 But if there is a market at the place for delivery, he will not be justified, ordinarily, in sending and selling them elsewhere, for the purpose of fixing his damages.1 368. Premature Repudiation by Purchaser. In case the buyer repudiates the contract before the time for delivery arrives, the seller may treat such repudiation as inoperative,5 and, upon the buyer's failure to discharge his contract obligations at their maturity, hold him responsible for all the consequences of non-performance, or he may treat such "repudiation as a wrongful putting an end to the contract, and at once bring his action as on a breach of it." If he elects the first course, "he keeps the contract alive for the benefit of the other party as well as his own, . . . and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining 1 Dunkirk Co. v. Lever, 9 Ch. D. 20, 25; 39 L. T. 239 (1878). 2 Dwiggins v. Clark, 94 Ind. 49, 56; 48 Am. R. 140 (1883). McCormick v. Hamilton, 23 Gratt. (Va.) 561, 577 (1873); Ingram v. Wackernagil, 83 Ia. 82, 86; 48 N. W. 998 (1891). ♦ Chapman v. Ingram, 30 Wis. 290 (1872). Roper v. Johnson, L. R. 8 C. P. 167, 177 (1873); Burdick's Cases on Sales, 575; Sumwalt Ice & C. Co. v. Knickerbocker Ice Co.,112 Md. 437; 77 At. 56. In this case, the breach was by the seller, under an instalment contract; and the buyer, though "waiving his right to rescind the contract, did not waive his right to claim damages" for the seller's breach as to the instalment. Honesdale Ice Co. v. Lake Lodore Imp. Co., 232 Pa. 293; 81 At. 306 (1911), "buyer not bound to supply himself before the contract date of delivery, even on a rising market. 6 Moffatt v. Davitt, 200 Mass. 452; 86 N. E. 929 (1909); defendant's repudiation was not express, but was evidenced by her delay in making payments and by letters showing that she planned an early sale of her business, which was unprofitable. to complete it; "1 and when he sues upon the contract he "must allege and prove performance upon his part, or a legal excuse for non-performance." 2 369. It does not follow from the foregoing authorities, however, that, if a party to a contract for the future sale and delivery of goods repudiates it, and never withdraws his repudiation, the other party can tender performance and recover the contract price. In such cases, another principle comes into operation: that the injured party is bound to use all reasonable efforts to minimize the injurious effects of the other party's default. If this principle were not applied, a party "might be entirely ruined by being compelled to pay for work which an unexpected change of circumstances, after the contract, would render of no value to him." 5 "The just claims of the party employed are satisfied when he is fully recompensed for his part performance, and indemnified for his loss in respect to the part left unexecuted." 6 370. Accordingly, "in assessing the damages the jury will take into consideration whatever the plaintiff has done, or has had the means of doing, and as a prudent man ought to have done, whereby his loss has been, or would have been, diminished." Hence it is held, generally, that upon the purchaser's repudiation of a contract for an article to be manufactured, the seller is not justified in completing the article for the purpose of charging the full contract price or of increasing the 1 Frost v. Knight, L. R. 7 Ex. 111 (1872); Louisville Packing Co. v. Crain, 141 Ky. 379; 132 S. W. 575 (1910); Armsby & Co. v. Grays Harbor C. Co., Ore. ; 123 Pac. 32 (1912). 2 Lake Shore Ry. v. Richards, 152 Ill. 59, 80; 38 N. E. 773 (1894). Davis v. Bronson, 2 N. D. 300; 50 N. W. 836; 33 Am. St. R. 783 and note, pp. 791-797; Unexcelled Fire Works v. Polites, 130 Pa. St. 536; 18 At. 1059; 17 Am. St. R. 788; Burdick's Cases on Sales, 173 (1889); Butler v. Butler, 77 N. Y. 472 (1879); Burdick's Cases on Sales, 566; Chicago Bldg. & M. Co. v. Barry, 52 S. W. 451 (Tenn. 1898). Johnson v. Meeker, 96 N. Y. 93, 97; 48 Am. R. 609 (1884). • Clark v. Marsiglia, 1 Den. (N. Y.) 317; 43 Am. Dec. 670 (1845); Mayo v. Latham, 159 Mich. 136; 123 N. W. 561 (1909); Livesley v. Krebs Hop Co., 57 Ore. 352; 97 Pac. 718; 107 Pac. 460; 112 Pac. 1 (1910). 7 Roper v. Johnson, supra, at p. 181; Burdick's Cases on Sales, at p. damages.1 Whether he completes it or not, his damages are the difference between the contract price and what it would cost him to manufacture and deliver it under the contract, or, in other words, the "profits which the performance of the contract by the vendee would have produced to him." 2 371. Rules for the Measure of Damages. - These were formulated as follows in a recent case: "1. The measure of damages for a breach of a contract to purchase personal property is the difference between the market value and the contract price of the property at the time of the breach, if the latter be greater than the former. "2. The same rule is applicable to the measure of damages resulting from the failure to accept articles which have been made and are ready for delivery at the time of the breach by the purchaser of the contract to purchase goods of a manufacturer, but it is not the true rule for the measure of damages resulting from the breach on account of those not then made and ready for delivery. "3. Where materials have been purchased and labor has been bestowed upon such articles under such a contract before the manufacturer has notice of the breach, his damages on these articles are the difference between the amount it would cost him to make and deliver them and their contract price, if greater, plus the difference between the value of the partly manufactured articles and the cost of the labor and materials that had been bestowed upon them at the time of the breach, if the cost be greater than the value. "4. If materials have been purchased with which to fulfil the contract, but no work has been bestowed upon them at the time of the breach, the measure of the manufacturer's damages upon the articles which might have been made with such materials under the contract is the difference between the amount it would cost him to make and deliver them, including the cost 1 Tufts v. Weinfeld, 88 Wis. 647; 60 N. W. 992 (1894). But see Kadish v. Young, 108 Ill. 170 (1883). 2 Todd v. Gamble, 148 N. Y. 382, 390; 42 N. E. 982 (1896); Trinidad Asphalt Mnfg. Co. v. Buckstaff Bros. Mnfg. Co., 86 Neb. 623; 126 N. W. 293 (1910); C. P. Mayer Brick Co. v. D. J. Kennedy Co., 230 Pa. 98; 79 At. 246 (1911). of the materials, and their contract price, if greater, plus the difference between the cost and the market value of the materials that have been purchased at the time of the breach, if the market value be less than the cost. "5. The measure of the damages upon articles covered by such a contract for which no materials had been bought, and upon which no work had been expended at the time of the breach, is the difference between the amount it would cost the manufacturer to make and deliver them and their contract price, if that price is greater than the cost." 1 372. Seller may sue as soon as Buyer repudiates. — In case the seller elects to treat the repudiation by the vendee as a ground for rescinding the contract, he may bring his action for damages at once.2 If the trial takes place before the time for performance has arrived, the assessment of damages may be difficult, but the difficulty "is no reason for refusing to fix them," nor is it insuperable. 3 This subject has recently received the careful consideration of a number of courts in this country. Perhaps the most valuable case of all is that of Horst v. Roehm, which was tried before Circuit Judge Dallas without a jury; his decision being affirmed successively by the Circuit Court of Appeals and by the United States Supreme Court. Since that decision, there can be no doubt that the overwhelming weight of judicial authority is in favor of the doctrines stated above in the text." 1 Kingman & Co. v. Western Mfg. Co., 92 Fed. 486; 33 C. C. A. 489 (1899); Jackson v. Washington, B. & A. Ry., 35 App. D. C. 41 (1910). 2 Windmuller v. Pope, 107 N. Y. 674; 14 N. E. 436 (1887); Burdick's Cases on Sales, 577 n. But see Daniels v. Newton, 114 Mass. 530 (1874); Sanford v. McGill, 6 N. D. 536; 72 N. W. 938; 38 L. R. A. 760 (1897); also note to Lake Shore, etc. v. Richards, in 30 L. R. A. 33; 152 Ill. 59; 38 N. E. 773 (1894). 3 Mayne on Damages (5th ed.), 174. 4 84 Fed. 565 (1898). Roehm v. Horst, 91 Fed. 345; 65 U. S. App. 520; 33 C. C. A. 550 (1898); 178 U. S. 1; 20 Sup. Ct. R. 780 (1900); Burdick's Cases on Sales, 720. Kirchman v. Tuffli Bros., etc. Co., 92 Ark. 111; 122 S. W. 239 (1909); Jackson v. Wash. B. & A. Ry., 35 App. D. C. 41 (1910); Koch v. Winebrow, 111 Md. 21; 73 At. 896 (1909); Moffatt v. Davitt, 200 Mass. 452; 86 N. E. 929 (1909); Trinidad A. M. Co. v. Buckstaff M. Co., 86 |