SALES. Where the seller of chattels fails to perform his agreement, the measure of , damages is the difference between the con tract price and the market value of the ar ticle at the time and place fixed for delivery ; Windmuller v. Pope, 107 N. Y. 674, 14 N. E. 436 ; McKercher v. Curtis, 35 Mich. 478 ; Randon v. Barton, 4 Tex. 289 ; Smith v. Dunlap, 12 Ill. 184 ; Shepherd v. Hampton, 3 Wheat. (U. S.) 200, 4 L. Ed. 369 ; Berry v. Dwinel, 44 Me. 255 ; Bickell v. Colton, 41 Miss. 368 ; Arnold v. Blabon, 147 Pa. 372, 23 Atl. 575 ; Humphreysville Copper Co. v. Min ing Co., 33 Vt. 92 ; Smith v. Synder, 82 Va. 614 ; Osgood v. Bauder, 75 Ia. 550, 39 N. W. 887, 1 L. R. A. 655 ; Griffith v. Construction Co., 46 Mo. App. 539 ; Kehler v. Einstman, 38 Ill. App. 91; Erwin v. Harris, 87 Ga. 333, 13 S. E. 513 ; Ramish v. Kirschbraun, 98 Cal. 676, 33 Pac. 780 ; 8 Q. B. 604 ; Benj. Sales § 758 ; Moffat v. Devitt, 200 Mass. 452, 86 N. E. 929.
The same rule applies as to the deficiency where there is a part-delivery only ; 16 Q B. 941; Benjamin v. Hillard, 23 How. (U. S.) 149, 16 L. Ed. 518; Horn v. Batchelder, 41 N. H. 86 ; Shreve v. Brereton, 51 Pa. 175 ; Fisk v. Tank, 12 Wis. 276, 78 Am. Dec. 737 ; Converse v. Burrows, 2 Minn. 229 (Gil. 191). Where, however, the purchaser has paid the price in advance, some of the cases, particu larly in England and New York, allow the highest market price up to the time of the trial; Arnold v. Bank, 27 Barb. (N. Y.) 424 ; Bank of Montgomery v. Reese, 26 Pa. 143; Calvit v. McFadden, 13 Tex. 324. Where the purchaser refuses to take and pay for the goods, the seller may sell them fairly, and charge the buyer with the difference between the contract price and the best market price obtainable within a reasonable time after the refusal; Saladin v. Mitchell, 45 Ill. 79; Girard v. Taggart, 5 S. & R. (Pa.). 19, 9 Am. Dec. 327 ; Pollen v. Le Roy, 30 N. Y. 549 ; Cook v. Brandeis, 3 Mete. (Ky.) 555; Tufts v. Grewer, 83 Me. 407, 22 Atl. 382 ; Adler v. Kiber, 5 Tex. Civ. App. 415, 27 S. W. 23. Where the .goods are delivered and received,
but do not correspond in quality with a war ranty given, the vendee may recover the dif ference between the value of the goods de livered and the value they would have had if they had corresponded with the contract; Tuttle v. Brown, 4 Gray (Mass.) 457, 64 Am. Dec. 80; Crabtree v. Kile, 21 Ill. 180 ; Moul ton v. Scruton, 39 Me. 287 ; Muller v. Eno, 14 N. Y. 597; Stoudenmeier v. Williamson, 29 Ala. 558 ; English v. Commission Co., 57 Fed. 451, 6 C. C. A. 416, 15 U. S. App. 218. But where the article is one which cannot be bought in the market (a machine), and it was not of the warranted capacity, it ap pearing that the vendee had contracted to supply the products of the machine, which he was unable to do because of the breach, and the facts were known to the vendor, the measure of damages is the difference be tween what it would have cost to fulfil his contracts and what the vendee would- have received if he had not lost them by reason of the defects in the machine; or if the work was done by others, the difference between what it would have cost him to do the work and what he paid for having it done ; Car roll-Porter Boiler & Tank Co. v. Machine Co., 55 Fed. 451, 5 C. C. A. 190, 3 U. S. App. 631; Springfield Milling Co. v. Mfg. Co., 81 Fed. 261, 26 C. C. A. 389, 49 U. S. App. 438.
Where one ordered a water wheel of un usual size and repudiated the contract, the contract price was held the measure of dam ages; Bookwalter v. Clark, 10 Fed. 793; so where one ordered a printing press to be made, and ordered the work stopped before completion, the manufacturer was entitled to recover the contract price less the value of the machine when the work was stopped and the cost of completing it ; Katz v. Kos ter, 6 Misc. 327, 26 N. Y. Supp. 785.
A vendee who accepts a motor built from a model furnished by him can recover as damages, if the motor does not conform with the model, only the cost of making necessary changes ; North. Chicago St. Ry. Co. v. Burn ham, 102 Fed. 669, 42 C. C. A. 584.