this is not because the law requires him to do so, but because in the exercise of his best judgment the seller believes that such place is the most advantageous market; and it is held that if he is unable to sell readily for a fair price at the place of delivery and can get a better price by reshipment and sale at another place, he may do so; otherwise, the right of the seller to resell would be practically taken away. Also it is the duty of the seller to exercise good faith, and to realize the best price he can on resale; but if, in the light of the facts before him, obtained in the exercise of due diligence, he pursues the course. which prudence would dictate to a man of ordinary prudence, then the buyer ought not to be heard to say that the market in which the thing was sold was not in fact the most advantageous one. It has been held that a resale for the purpose of fixing damages for breach of a contract to purchase the products of a coal mine need not be made in the market at the place of delivery under the original contract though it was a large city.9 381. Effect of Purchase by Seller or Buyer. On the principle that the seller in reselling acts as the agent of the buyer, it has been held that the former is without capacity, either directly or indirectly, to purchase the property in whole or in part, where he undertakes to sell it in behalf of the buyer, and if he so purchases it, he cannot claim to recover on the theory of a resale on the account of the buyer. And a resale by the seller to himself is invalid where objected to by the buyer on this ground, and a subsequent sale will be regarded as a sale by the seller in his own behalf, and hence as an election to treat the property as his own.10 On the other hand it is generally held that when the sale is made at auction by a licensed auctioneer and fairly conducted the seller may himself become the purchaser without rendering the sale ineffectual for fixing the damages recoverable for the wrongful refusal of the buyer to accept and pay for the property.11 The fact that at the resale the buyer himself becomes the purchaser 6. White Walnut Coal Co. v. Crescent Coal, etc., Co., 254 Ill. 368, 98 N. E. 669, 42 L.R.A. (N.S.) 669. 7. North Georgia Milling Co. v. Henderson Elevator Co., 130 Ga. 113, 60 S. E. 258, 24 L.R.A. (N.S.) 235 (explaining an earlier case and the effect of the code provision thereon); White Walnut Coal Co. v. Crescent Coal, etc., Co., 254 Ill. 368, 98 N. E. 669, 42 L.R.A. (N.S.) 669; Piowaty v. Sheldon, 167 Mich. 218, 132 N. W. 517, Ann. Cas. 1913A 610; Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 A. S. R. 727. Notes: 52 L.R.A. 251; 42 L.R.A. (N.S.) 685. 8. Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 A. S. R. 727. 9. White Walnut Coal Co. v. Crescent Coal, etc., Co., 254 Ill. 368, 42 L.R.A. (N.S.) 669. 10. Note: 42 L.R.A. (N.S.) 675. 11. Ackerman v. Rubens, 167 N. Y. 405, 60 N. E. 750, 82 A. S. R. 728, 53 L.R.A. 867 (following Moore v. Potter, 155 N. Y. 481, 50 N. E. 271, 63 A. S. R. 692, as having in fact decided such question though it was not discussed in the opinion). Note: 42 L.R.A.(N.S.) 675. at a less price than originally agreed upon does not affect the right of the seller to recover the deficiency, as it is his duty to sell for the best price obtainable and it is therefore proper for him to accept the buyer's offer when it is the best. 12 382. Conclusiveness of Resale as Fixing Damages.-In some cases the view is taken that though a resale is a usual mode to ascertain the difference between the contract price and the value of the article when the buyer wrongfully refuses to accept it, it is not the only mode, nor even when it takes place is it decisive; and the jury may have evidence of other kinds to show the value, and are to judge in the best manner they can from the whole case, as the law lays down no one mode as the exclusive one for settling the value of an article in market, at or about a given time; but it is a matter to be left to the jury on the evidence.13 This is said to be especially true where no notice of the intention to resell was given to the buyer; 14 and it has been held that even though notice of the intention to resell is given the amount yielded at the resale is not conclusive on the extent of the buyer's liability, but he may still show its unfairness or that it was made under circumstances unusual or calculated to prevent a sale at a fair price, and therefore that the amount yielded was not the true market value.15 Ordinarily, however, according to the weight of authority, if the resale is fairly made at a proper place and time and the seller has exercised reasonable diligence to secure the best price obtainable, the amount received will be used as the criterion for fixing the market value of the property at the time.16 Action for Damages 383. In General.-Where the buyer refuses to accept a tender of delivery made in accordance with the contract of sale it follows as a matter of course that the seller may maintain an action for damages for breach of the contract; and in order to entitle him to do so it is not necessary that he resell the property on account of the buyer.17 So where the goods are to be shipped by carrier to the buyer and are so shipped, but the buyer refuses to accept them, the seller may there 12. Arkansas, etc., Grain Co. v. Young, etc., Grain Co., 79 Ark. 603, 96 S. W. 142, 116 A. S. R. 99. 13. McCombs v. McKennan, 2 Watts & S. (Pa.) 216, 37 Am. Dec. 505. 14. Note: 42 L.R.A. (N.S.) 680. 15. West v. Cunningham, 9 Port. (Ala.) 104, 33 Am. Dec. 300. 16. Arkansas, etc., Grain Co. v. Young, etc., Grain Co., 79 Ark. 603, 96 S. W. 142, 116 A. S. R. 99; Men del v. Miller, 126 Ga. 834, 56 S. E. 88, 7 L:R.A. (N.S.) 1184; Van Horn v. Rucker, 33 Mo. 391, 84 Am. Dec. 52; Rosenbaum v. Weeden, 18 Grat. (Va.) 785, 98 Am. Dec. 737. Notes: 52 L.R.A. 249; 42 L.R.A. (N.S.) 680, 687. 17. West v. Cunningham, 9 Port. (Ala.) 104, 33 Am. Dec. 300; Huguenot Mills v. Jempson, 68 S. C. 363, 47 S. E. 687, 102 A. S. R. 673. after treat the goods as his own and maintain his action for damages.18 Where an advance payment was made by the buyer under a stipulation in the contract that it should be "forfeited" on the failure of the buyer to perform, the seller has been held entitled to maintain an action for damages for breach by the buyer and recover the difference between the market value and the agreed price, deducting of course the amount of such advance payment, as such stipulation will be treated as in the nature of a provision for a forfeiture and not a liquidation of the damages recoverable for the buyer's breach.19 The fact that the buyer offers the seller, on refusing to accept and pay according to the terms of the contract, a slightly better price than the then market price does not require the seller to accept such offer, but he may refuse the offer and rely on his action for damages for the breach, as the acceptance of such offer by the seller might subject him to a claim on the part of the buyer that thereby he abandons the original contract.20 Where the seller is sued by the buyer for damages for an alleged breach of the contract of sale on his part he is not bound to set up his claim for a breach by the buyer, and if without doing so he succeeds in defeating the action on the ground that there was no breach of the contract on his part he may thereafter sue the buyer for his breach of the contract.1 384. Time of Bringing Action.-As is heretofore shown it is the general rule that where the buyer refuses to accept delivery of the article sold, the sale being on credit, the seller cannot sue for the price until the term of credit has expired, but where the buyer refuses to take the goods, the fact that a term of credit has been agreed on will not preclude the bringing of an action immediately for breach of contract. And where the buyer repudiates the contract after a partial delivery, an action is maintainable before the expiration of the period of credit in which the purchase price of the goods delivered may be recovered, not technically as the contract price, but as damages for the breach of the contract. Also, as is heretofore shown, where the doctrine of anticipatory breach is fully recognized, if the buyer repudiates the executory contract of sale prior to the time fixed for delivery, the seller may treat this as a breach of the contract and sue immediately for his damages without waiting for the time for delivery to arrive.5 18. Huguenot Mills v. Jempson, 68 of the buyer to accept the seller's ofS. C. 363, 47 S. E. 687, 102 A. S. R. fer to sell on different terms, see supra, 673. par. 351. 19. Evans v. Moseley, 84 Kan. 322, 114 Pac. 374, 50 L.R.A.(N.S.) 889 and note. See DAMAGES, vol. 8, p. 559 et seq., as to the distinction between provisions for forfeiture and for liquidated damages. 20. Krebs Hop Co. v. Livesley, 59 Ore. 574, 114 Pac. 944, 118 Pac. 165, Ann. Cas. 1913C 758. As to the duty 1. La Follett v. Mitchell, 42 Ore. 465, 69 Pac. 916, 95 A. S. R. 780. 2. See supra, par. 362. 3. Girard v. Taggert, 5 Serg. & R. (Pa.) 19, 9 Am. Dec. 327. Note: 3 L.R.A.(N.S.) 909. 385. Pleading.-Where there is an executory contract for the sale of an article to be paid for on delivery, at any time within a certain period, in an action by the seller for damages for the buyer's breach of the contract it is not enough simply to show the default of the buyer; the seller must show that he was ready and offered to deliver the goods, or circumstances excusing such tender. The complaint need not set out the contract in full, but the substance of it must be alleged, otherwise the seller may be defeated on account of a variance." 386. Measure of Damages Generally.-As a general rule the measure of damages recoverable by the seller for the buyer's breach of the contract is the difference between the price agreed to be paid and the market value of the property. The principle on which this rule rests is that of an indemnification of the injured party for the injury which he has sustained and, in ordinary cases, the value in the market on the day forms the readiest and most direct method of ascertaining the measure of this indemnity. If the article is bought and sold in the market, the market price shows what pecuniary sum it would take to put the plaintiff in as good a position as if the contract had been performed. If the cost of delivery at the place fixed therefor is saved to the seller, deduction therefor should be made.10 It has been held that loss to the seller arising out of his inability to carry out an independent contract with third persons entered into in anticipation of the due receipt of the price for the goods sold is not a proper element of damages, being too remote.11 Where the title remains in the seller, the accidental destruction of the property after the buyer's wrongful refusal to accept it does not affect the general rule as to the measure of 6. Note: 5 L.R.A. 770. 7. Robinson Consol. Min. Co. v. Johnson, 13 Colo. 258, 22 Pac. 459, 5 L.R.A. 679. 8. Gibbons v. United States, 8 Wall. 269, 19 U. S. (L. ed.) 453; Parish v. United States, 8 Wall. 489, 19 U. S. (L. ed.) 472; Parish v. United States, 100 U. S. 500, 25 U. S. (L. ed.) 763; Kadish v. Young, 108 Ill. 170, 48 Am. Rep. 548; Murray v. Doud, 167 Ill. 368, 47 N. E. 717, 59 A. S. R. 297; Pittsburg, etc., R. Co. v. Heck, 50 Ind. 303, 19 Am. Rep. 713; Dwiggins v. Clark, 94 Ind. 49, 48 Am. Rep. 140; Bell v. Hatfield, 121 Ky. 560, 89 S. W. 544, 2 L.R.A. (N.S.) 529; Funke v. Allen, 54 Neb. 407, 74 N. W. 832, 69 A. S. R. 716; Masterton v. Brooklyn, 7 Hill (N. Y.) 61, 42 Am. Dec. 38; Cahen v. Platt, 69 N. Y. 348, 25 Am. Rep. 203; Todd v. Gamble, 148 N. Y. 382, 42 N. E. 982, 52 L.R.A. 225; Krebs Hop Co. v. Livesley, 59 Ore. 574, 114 Pac. 944, 118 Pac. 165, Ann. Cas. 1913C 758; Girard v. Taggart, 5 Serg. & R. (Pa.) 19, 9 Am. Dec. 327; Unexcelled F. Works Co. v. Polites, 130 Pa. St. 536, 18 Atl. 1058, 17 A. S. R. 788; Huguenot Mills v. Jempson, 68 S. C. 363, 47 S. E. 687, 102 A. S. R. 673; Rider v. Kelleg, 32 Vt. 268, 76 Am. Dec. 176; Lincoln v. Charles Alshuler Mfg. Co., 142 Wis. 475, 125 N. W. 908, 28 L.R.A. (N.S.) 780. Notes: 9 Am. Dec. 336; 17 A. S. R. 790; 3 L.R.A. 589; 52 L.R.A. 246; 43 L.R.A. (N.S.) 24; Ann. Cas. 1913C 765. 9. Todd v. Gamble, 148 N. Y. 382, 42 N. E. 982, 52 L.R.A. 225; Rider v. Kelleg, 32 Vt. 268, 76 Am. Dec. 176. 10. Note: 52 L.R.A. 246. 11. Masterton v. Brooklyn, 7 Hill (N. Y.) 61, 42 Am. Dec. 38. Note: 3 L.R.A. 590. damages, as the refusal is in no sense a contributing cause to the destruction of the property, and the risk of destruction follows the title.12 The burden of proving the difference between the market value and the agreed price is on the seller and if no evidence is given to establish such fact nominal damages at the most can be recovered.13 If there has been a partial delivery under the contract before the breach by the buyer, the seller may recover in addition to the difference between the agreed price and the market value of the part not delivered the reasonable value of the part delivered, which is usually fixed at the agreed price.14 387. Sale of Articles to Be Manufactured or Produced Generally.In considering the question as to what damages may be recovered by the seller in case of a breach by the buyer of a contract for the purchase and sale of articles to be manufactured or produced by the seller, it must be borne in mind that the aim of the law is to place the seller in the same position from a monetary standpoint that he would have occupied if the buyer had performed his contract. As regards articles actually manufactured at the time of the buyer's breach, the seller is entitled to recover the difference between the price to be paid and the market value of the article, that is, what it could be sold for on the market.15 This rule, however, is not of universal application, and it seems that it is not applicable unless it appears that on breach by the buyer the seller could have placed the commodity on the market and by thus disposing of it have relieved himself from the consequences of the buyer's default; and it seems to be generally held that if the article manufactured is made after a particular pattern or style, so that it would be useless or practically useless to anyone except the person for whom made, the seller should be allowed to recover the price.16 Other cases, however, deny the seller's right to recover the contract price though the article was manufactured according to a special pattern or design, and there was no general market therefor, and these cases limit the right to recover to the difference between the agreed price and the amount for which the article may be sold on the market, 12. Pittsburgh, etc., R. Co. v. Heck, 50 Ind. 303, 19 Am. Rep. 713. See also McConehe v. New York, etc., R. Co., 20 N. Y. 495, 75 Am. Dec. 420. See supra, par. 310, as to which party must bear the loss in case of the destruction of the subject matter of the sale. 13. Note: 52 L.R.A. 246. 14. Alpha Portland Cement Co. v. Oliver, 125 Tenn. 135, 140 S. W. 595, Ann. Cas. 1913C 120, 38 L.R.A. (N.S.) 416. 15. Dwiggins v. Clark, 94 Ind. 49, |