| Conn. | Jul 15, 1848
Two questions are presented upon this motion. One is, whether there is a fatal variance between the contract proved and that stated in any one count in the declaration ; and the other relates to the amount of damages to which the plaintiffs are entitled.
1. As to the variance. We do not think the claim of the
The contract, upon its face, is absolute and unconditional. The defendants, by their acceptance, undertook to deliver the goods, when required by the plaintiffs. The plaintiffs, therefore, had a right to declare upon it, according to its legal effect, as they have done.
Suppose Dunning had deposited, as collateral security for bis debt, a bill of exchange, drawn by him and accepted by the defendants ; would there be any doubt but that the plaintiffs might declare upon it in the usual form ? The manner in which the plaintiffs might be required to account for the proceeds with Dunning, would have no' effect upon the form of declaring in a suit against the acceptors, although in some cases it might affect the damages.
2. The next enquiry is, what damages are the plaintiffs entitled to recover, for the refusal of the defendants to deliver the goods according to their contract?
The general rule upon this subject, is well settled. They are entitled to the value of the goods, at the time the contract was broken by the defendants. “ Where a man” says judge Swift, “ contracts to deliver any article besides money, and fails to do it, the rule of damages is the value of the article at the time and place of delivery, and the interest for the delay.” Bush v. Canfield, 2 Conn. R. 487.
The rule, as thus stated, was subsequently recognized as the correct rule, by this court. Wells v. Abernethy, 5 Conn R. 227. and may be considered as the settled rule in England and in the adjoining states. Boorman v. Nash, 9 B. & Cress. 145. (17 E. C. L. 344.) Shaw v. Nudd, 8 Pick. 9. Swift v. Barnes, 16 Pick. 194. 196. Clark v. Pinney, 7 Cowen, 681. Shepherd v. Hampton, 3 Wheat. 200.
But to this general rule, an exception has been made, in many of the modern cases. And that is, where the price of the goods is paid in advance, and the vendor subsequently refuses to deliver them, the purchaser is not confined to their value at the time when they should have been delivered, but if the goods have risen in value, he may recover their value at the time of trial.
“ The true measure of damages,” says Grose, J., “ in all these cases, is, that which will completely indemnify the plaintiff for the breach of the engagement. If the defendant neglect to replace the stock, at the day appointed, and the stock afterwards rise in value, the plaintiff can only be indemnified, by giving him the price of it at the time of trial.” Shepherd v. Johnson, 2 East, 211. Payne v. Burke, 2 East, 213. n. Harrison v. Harrison, 1 Car. & Pa. 412. (11 E. C. L. 436.)
And in such case, the party has his election, either to take the price at the time specified for the delivery, or the value at the time of trial. McArthur v. Seaforth, 2 Taun. 258. Downes v. Back, 1 Stark. R. 318.
But this rule is not now confined to contracts for the transfer of stock, and there is no reason why it should be. Thus, in an article of trover, for East-lndia Company’s warrants for cotton, the cotton rose in value after the defendant’s refusal to deliver it. Abbott, Ch., J., held, that the jury, in assessing the damages, were by no means confined to the value of the cotton, on the day of the conversion. He observed, “it may be said, that if the plaintiff had wanted cotton, he might have immediately bought more, at that day’s price, as soon as he found that this cotton was detained from him ; but then to do that, he must have had the money, which he might not have ready on the very day of the detention, nor on any day after, until the price had risen.” Greening v. Wilkinson, 1 Car. & Pa. 625. (11 E. C. L. 499.) Clark v. Pinney, 7 Cowen 681.
But this exception does not apply, where a contract is made for the purchase of goods, which are to be paid for when delivered. There, as nothing is paid by the purchaser upon the •contract, he has the money in his possession, and may, immediately after the contract is broken by the defendant, purchase other goods; and if he sustains any loss, by neglecting to do so, the fault is his own. He cannot avail himself of
So where a contract was made for the sale and delivery of a quantity of cotton, to be paid for on the delivery ; in an action by the vendee for not delivering the cotton, the supreme court of the United States held, that the measure of damages was the price of the cotton at the time it was to be delivered. And Marshall, Ch. J., after delivering the opinion of the court, added, “ for myself only, I can say that I should not think the rule would apply to a case where advances of money had been made by the purchaser, under the contract.” Shepherd v. Hampton, 3 Wheat. 200. 204.
Although the exception to the rule seems not to have been universally adopted, yet in our opinion, it appears to be founded upon principles of natural justice. The effect is, to give indemnity to the injured party, who has been induced to part with his property, relying upon the engagements of another. And the weight of authorities is altogether in favour of the exception. Kennedy v. Whitwell, 4 Pick. 466. Shaw v. Nudd, 5 Pick. 9.
The rule which was adopted in this case, on the circuit, was, to take the purchase money paid as the measure of damages. That rule seems to have been applied in Bush v. Canfield, but was afterwards repudiated, in the case of Wells v. Aber-nethy. The court, in the latter case, say, “ the consideration of the contract is never the rule in estimating the damages for the breach of an express contract.”
The plaintiffs, on the trial, claimed to recover the amount of their note against Dunning, provided the goods, which the defendants had refused to deliver, at the prices specified in the bill of sale, would amount to that sum ; and the jury were so instructed.
They are consequently not entitled to retain the full amount of their present verdict. But as they parted with their property to Dunning, relying upon the defendants’ promise to deliver the goods, they are entitled to stand in the same situation, as if they had paid the same amount to the defendants, and are not obliged to take, as damages, the value of the goods only at the time of the demand, provided the goods, as they claim, have since risen in value.
New trial to be granted, nisi.