83 Me. 407 | Me. | 1891
It becomes immaterial whether the AA'riting signed by the parties in this case be considered a contract of sale, or a contract to manufacture an article upon the order of the defendant, inasmuch as Ave feel convinced that the rule of damages would be the same in this State whether it be the one or the other kind of contract.
The defendant ordered a soda fountain of the plaintiff, Avhich was manufactured and tendered to him and the price demanded.
The general rule is familiar, that for the vendee’s failure to receive and pay for the goods he has contracted for, the vendor may recover the difference between the market value at the time and place stipulated for delivery and the contract price, together with the expenses of reselling the property. The general rule is not questioned, but the plaintiff contends that a special and more equitable rule governs when a vendor has manufactured the- article after a particular pattern upon the order of the vendee, who refuses without excuse to accept the same. The plaintiff says, I have done all I bargained to do and now the defendant should be compelled to do what he bargained to do, namely, to pay the contract price.
Wo feel that there is force in the plaintiff’s position, supported as it is by considerable authority, but we are inclined to believe that there should be but one rule of damages in cases where a vendee refuses to accept goods which he has agreed to purchase, whether the article to he delivered to the vendee is already in existence or is to he manufactured on Ms account. Wherein does the general rule fail to furnish an efficacious remedy? The vendor was to receive in this ease money and notes. While the law fully recognizes the obligation of the vendee, and cannot require specific performance, it undertakes to make full reparation by allowing recovery for all the damages sustained. What difference, practically, can there be between a seller receiving the consideration wholly from the vendee or partly from him and the balance from some one else ? The law in its own way obtains for ihe vendor ail equivalent for a full execution of the contract.
There are courts which have held that, in all cases where a vendee refuses to accept the goods contracted for by Mm, the vendor may recover the contract price as damages. There is a
The rule invoked here has not been much noticed in the English law, but finds its principal support in this country, and, ,still, even here it will be found, we think, to be in contradiction most of the authorities. The first case in this country sustaining this special rule, was Bement v. Smith, 15 Wend. 493. In Dustan v. McAndrew, 44 N. Y. 72, although the case Balled for no such classification, the opinion formulates the law on tin point in question in the following manner: (1) The vendor-may store or retain the property for the vendee and sue him for the entire purchase price; (2) or he may sell the property, acting as agent of the vendee, and recover the difference between the contract price and the price obtained on such resale ; (3) or he may keep the property as his own and recover the difference between market price and the contract price. This formulary seems to have crept into several text
A formidable barrier against the plaintiff’s recovery upon the theory of damages claimed by him is that the question has been virtually decided in this State against such theory. In Atwood v. Lucas, 53 Maine, 508, it was held that an action of assumpsit for goods sold and delivered cannot be sustained where the goods have not been accepted by the vendee. In Moody v. Brown, 34 Maine, 107, it was held that such an action would not lie although the articles claimed to be sold were manufactured after a peculiar pattern for the special use of the vendee, who refused to accept them when tendered to him. In the latter case, the action did not, as the present action does, allege a claim against the defendant for damages for not accepting and paying for the goods, but went upon the theory of goods sold and title passed. But no question of pleading was discussed in the case, and the opinion, taking no objection to the declaration, determines that upon the facts in proof no more damages were recoverable than the difference between contract price and market value. The case was decided on the legitimate effect of the facts, and not upon the form of the action. The court dissents from the doctrine of the case of Bement v. Smith, 15 Wend. 493, before cited, as wrong in principle and contradictory "to the result of the best considered cases.”
But then we are confronted with the case of Oatman v. Walker, 33 Maine, 67, where the plaintiff was allowed to recover against the defendants the contract price of land which they had agreed to purchase of the plaintiff, afterwards repudiating their contract. The facts do not appear to be fully reported, but it looks like a case where the defendants were to repurchase a parcel of land they had conveyed to the plaintiff, thereby rescinding a former contract. Such a case may be an exception to the general rule. Laubach v. Laubach, 73 Penn. St. 367, before cited. The opinion in a few words merely follows the case of Alna v. Plummer, 4 Maine, 258, where the
Exceptions sustained.