21 N.Y.S. 739 | N.Y. Sup. Ct. | 1893
The existence of the contract, and that it was broken by the defendants, were facts conceded on the trial, as was also the quantity of American silicate of soda which defendants purchased of manufacturers other than the plaintiff, and used in their business, during the term for which the contract ran. In case a vendor agrees, by an executory contract, to manufacture goods, to be delivered from time to time as ordered by the vendee, to be paid for after each .successive delivery, and the vendee, after having accepted and paid for a part, gives notice that he will not receive or pay for the rest, the vendor may recover damages for the breach of the contract without manufacturing or tender? ing the remainder of the goods. Windmuller v. Pope, 107 N. Y. 674, 14 N. E. Rep. 436; Dingley v. Oler, 11 Fed. Rep. 373; Ripley v. McClure, 4 Exch. 345. In such a case the vendor is not entitled to elect between several remedies, as in case of a sale of goods in existence and identified, or in case goods are manufactured before the contract is rescind ed, but be is confined to recovering the difference between the contract price and the actual money value of the property at the time and place appointed for their delivery. Windmuller v. Pope, supra; Borries v. Hutchinson, 18 C. B. (N. S.) 445. This rule of liability, as ■well as the one above stated for ascertaining the amount of the liability, seems to be acquiesced in by the learned counsel for both parties to this litigation. Both agree that when an executory sale is made of articles having a market value, which the vendee refuses to accept, the measure •of his liability is the difference between the contract price and their actual value, which the law deems equivalent to their value in the market. But, if the subject, of the sale has no market value,'the measure of the vendee’s liability is still the difference between the contract price and the actual value of the goods; the actual value being a factor in each case in determining the question of damages. When the value of the