If the buyer, without lawful excuse, fails to accept goods which he agreed to buy, he is liable on ordinary principles of contract for this breach of obligation. The amount of the plaintiff's recovery in such an action should be such a sum of money as will put him in as good a position as he would have been in had the defendant performed his le gal obligation.
As to the effect of repudiation before the time for performance, see ANTICIPATORY BREACH ; BREACH ; PERFORMANCE.
Rescission by the seller. When the goods have not been delivered, and the buyer has repudiated the contract or sale, or has mani fested his inability to perform his obligations thereunder, or has committed a material breach, the seller may totally rescind the contract or sale by giving notice of his elec tion so to do to the layer. It will generally be more favorable for a seller, if the buyer makes default, not to rescind the contract, but merely to rely on such default as his own excuse for not performing and sue the buyer for his default on the contract. Though the seller who has elected, for due cause, to rescind a contract, cannot thereaft er sue upon it, he is entitled to recover the value of whatever he has delivered to the buyer by invoking the principles of quasi contract. See QUASI-CONTRACT.
Remedies of the buyer. Where the buyer has fully performed all his own obligations under the contract which are precedent or concurrent with the seller's obligation to de liver the goods, and the property in the goods has passed to the buyer, then upon a failure to deliver, the seller is guilty of both a tort and a breach of contract, for he is detaining or converting without just excuse the prop erty which belongs to the buyer, and he is also violating his contractual duty as seller. See CoNvkasiolv ; TROYER.
The amount of the buyer's recovery for the seller's failure to deliver the goods when the property has passed, whether he sues in con tract or in tort, is prima facie the market value of the •goods at the time and place when delivery should have been rendered; and if the price has been paid, such is the recovery actually allowed ; Deere v. Lewis, 51 III. 254; Hill v. Smith, 32 Vt. 433. The ordinary rule is that of confining the plain tiff's damages to the value of the goods at the time of the defendant's breach of duty, but it has often been urged that the value of the goods at the time of the wrongful con version or refusal to deliver may not fully compensate the buyer for the wrong done him. Accordingly, in some jurisdictions,
especially in regard to the sale of stocks and other articles of rapidly fluctuating value, the rule has been suggested that the plain tiff ought to receive damages based on the highest market price up to the time of trial ; Wright v. Bank, 110 N. Y. 237, 18 N. E. 79, 1 L. R. A. 289, 6 Am. St. Rep. 356. Howev er, the United States Supreme Court quali fied the rule by allowing only the highest in termediate value up to such time after the owner has received notice of the conversion as is reasonably needed to enable him to re place the converted property; Galigher v. Jones, 129 U. S. 193, 9 Sup. Ct. 335, 32 L. Ed. 658.
Where the property in the goods has not passed to the buyer, and the seller wrongful ly neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for non-delivery. The measure of damages is identical with that of the seller where the buyer refuses accept ance, which has been considered supra. Where the seller repudiates and makes ma terial default, the buyer may rescind the con tract and recover the price or any part of it that he may have paid; 3 Bing. 724.
Courts of equity have very closely restrict ed their jurisdiction in regard to the specific performance of contracts for the sale of per sonal property, and it has been held that for breach of contracts for the sale of goods, damages are, as a rule, an adequate remedy. In a few exceptional cases specific perform ance has been granted, as for slaves ; Wo mack v. Smith & Tinsley, 11 Humph. (Tenn.) 478, 54 Am. Dec. 51; works of art; Falcke v. Gray, 4 Drew. 651; valuable documents of various kinds; McMullen v. Vanzant; 73 Ill. 190 ; Dock v. Dock, 180 Pa. 14, 36 Atl. 411, 57 Am. St. Rep. 617. By the Sales Act, where the seller has broken a contract to de liver specific or asc,rtained goods, a court having the powers of a court of equity may, if it thinks fit on the application of the buy er, direct that the contract shall be perform ed specifically without giving the seller the option of retaining the goods on payment of damages. See EQUITY ; SPECIFIC PERFORM ANCE.