tract was for "best classical Italian silk for single weaving." If it was not, there seems to be no defense. If it was, the question is, Did the silk delivered comply with the contract? If it did, the plaintiff is entitled to recover. If it did not, the question arises whether the defendant accepted it. The defendant had a right to inspect and examine (Sales Act, § 47), and, if necessary, to test the goods even though the test involved destruction of a part. Williston on Sales, § 475. If, however, the defendant intimated to the plaintiff that it had accepted the goods, or if the defendant did any act inconsistent with the ownership of the plaintiff, or if, after the lapse of a reasonable time, it retained the goods without intimating to the plaintiff a rejection, then the defendant must be deemed to have accepted the goods and the right of rescission is gone. Sales Act, § 48. If the defendant had the right to rescind and had not lost it when it finally notified the plaintiff that it had rejected the goods, and has actually rescinded, the verdict should be for the defendant, but not a verdict for damages. * If, however, the goods were not in accordance with the contract, and the defendant had accepted them, there would still be open the remedies allowed for breach of contract. The defendant, if such are found to be the facts of the case, had the option to recoup in diminution or extinction of the purchase price or to maintain a distinct action against the plaintiff for all its damages including loss of profits and expenses to which it had been put. Sales Act, § 69 (1) (a) and (b). The remedy under subdivision (a) is recoupment in the strict sense of that word, and involved merely an abatement of the purchase price which can amount to the whole purchase price only where the goods are worthless. The remedy under subdivision (b) is that which formerly was the subject of a cross-action, but it is now available by way of counterclaim under section 105 of the practice act. * * This remedy is inconsistent with the claim of a rescission of the contract, and at the trial it will be necessary for the defendant to elect whether to stand upon the theory of a rescission and abandon its claim to damages or to abandon the claim of rescission and rely upon the contract as subsisting and insist on damages for the breach. If it adopts the latter course, the plaintiff will be entitled to recover the value of the silk, which will be the full purchase price, unless the defendant establishes that it was of inferior quality, in which event it will be the actual value as proved (Sales Act, § 48; Williston on Sales, § 488), from which may be deducted such loss as the defendant may prove it has sustained directly and naturally resulting in the ordinary course of events from the breach of warranty. SECTION 6.-BUYER'S RIGHT TO RECOVER DAMAGES FOR BREACH OF THE CONTRACT TO SELL Sales Act, Section 67. (1) Where the property in the goods has not passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for non-delivery. (2) The measure of damages is the loss directly and naturally resulting in the ordinary course of events, from the seller's breach of contract. (3) Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances, showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or if no time was fixed, then at the time of the refusal to deliver. N. P. SLOAN CORP. v. LINTON et al. (Supreme Court of Pennsylvania, 1918. 260 Pa. 569, 103 Atl. 1011, 6 A. L. R. 633.) Assumpsit for breach of contract for the sale of personal property by the N. P. Sloan Corporation against Ross B. Linton and W. Horace Linton, copartners trading as Josiah Linton & Co. Verdict for plaintiff for $2,300, and defendants appeal. POTTER, J. The N. P. Sloan Corporation brought this action of assumpsit to recover damages from the firm of Josiah Linton & Co. for the breach of a contract for the sale of cotton linters. Plaintiff's claim was based upon a letter dated October 25, 1916, from defendants to plaintiff, in which they stated that: "We have sold to you as brokers per contracts turned over to us, cotton linters as follows: Quantity, 475 bales. Quality, clean mill run. Price, 6.18 f. o. b. cars mills." It was further stated that the linters sold consisted of 250 bales at Columbia, S. C., and 225 bales at Cheraw, S. C. The letter contained the following clause: "You have the privilege of examining stock at point of shipment, but shipping instructions to be given to us immediately." The record shows that shipping instructions were promptly given to defendants, and plaintiff sent its agent to Columbia and Cheraw, S. C., to examine the goods sold, but none could be found at either place, and therefore he could make no inspection. On November 1, 1916, defendants notified plaintiff that they could not deliver the goods sold, and stated that they had sold them as brokers on account of the Corey-Bickmore Corporation of New York, and that their interest in the matter had ceased. In plaintiff's statement damages were claimed on the basis of the difference between the contract price and the market value of cotton linters on November 1st, the date of the breach, at New York, less the cost of transportation from Columbia and Cheraw, S. C., to that city. At the trial, defendants contended: * * * That the measure of damages set up in the statement was not the true measure under the law. There was a verdict for plaintiff, and from the judgment entered thereon defendants have appealed. * * ** Upon the trial, both parties agreed that the damages in such a case are to be measured by the difference between the contract price and the market value at the date of the breach. But they differed as to the method of ascertaining that value. Plaintiff proved the market value at the place of delivery by showing the market value in New York City and deducting therefrom the cost of transportation from the places of shipment. Counsel for appellants contend that this method was erroneous. The general rule is stated in 35 Cyc. L. & Pr. 633, as follows: "Where the breach consists in the failure of the seller to deliver the goods, the measure of damages is ordinarily the difference between ine contract price and the market price of the goods at the time and place of delivery, provided there is a market price for goods of the character and quality contracted for by the buyer at such time and place, and interest thereon from the time of the breach." And on page 638, it is said: "The market price must be determined as of the place of delivery, provided the goods have a market price at such place. If there is no market price at the place of delivery, the true value is to be shown by the best evidence possible, and in such cases the market value at other places, plus the expense of transportation to the place of delivery, may be used as a basis for computation; and if the market price in the vicinity of the place of delivery is shown to depend on the market price at a large, well-known and active market, the market price at such place plus transportation charges may be considered. If the place of delivery and place of destination are different, the market price at the destination less the cost of transportation may be resorted to." Here there was testimony tending to show that the market price of cotton linters throughout the country is based on New York prices, that being the largest and most active market for that class of goods. There was also testimony from which the jury were justified in finding that the market value at Columbia and Cheraw, S. C., was based upon the market price in New York, being determined by the cost of transportation to that point. Under Sales Act May 19, 1915 (P. L. 543) § 67, referring to the measure of damages where the seller has wrongfully refused to deliver the goods, it is provided: "Third. Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver." It will be noted that it is an "available market" to which resort is to be had for a price, and no mention of the place of delivery is made in that connection in the act. We find no merit in any of the assignments of error in which complaint is made of the rulings of the learned trial judge upon the admission of testimony as to the market value of the goods. * The judgment is affirmed. BIRDSONG & CO., Inc., v. MARTY. * (Supreme Court of Wisconsin, 1916. 163 Wis. 516, 158 N. W. 289.) Action by Birdsong & Co., Incorporated, against Jacob Marty, doing business, as Jacob Marty & Co. Judgment for plaintiff, and defendant appeals. Action for damages for breach of contract. Plaintiff is a corporation engaged principally in the business of buying and selling cheese and other edible products, with its principal office at Philadelphia. The defendant is a maker and dealer in cheese, doing business as Jacob Marty & Co. at Brodhead, Wis. The case was tried before the court without a jury. The trial court held that the correspondence constituted an unqualified contract of purchase and sale, by which the plaintiff purchased of the defendant 25 tubs of No. 1 cheese at 162 cents a pound, and a sufficient amount of No. 2 at 13 cents to make a minimum carload; that a minimum east-bound car contains 20,000 pounds; that the average weight of a tub of Swiss cheese in August is approximately 775 pounds, and that the contract therefore called for 19,375 pounds of No. 1 and 625 pounds of No. 2; that at Brodhead and in Southern Wisconsin generally the market price on August 17th was 172 cents to 18 cents for No. 1 and 151/2 cents for No 2; that at the time plaintiff received defendant's letter canceling the contract the price had advanced to 20 cents for No. 1 and 162 cents for No. 2, and plaintiff had judgment accordingly for $700. From such judgment, defendant appeals. ROSENBERRY, J. * *The only question remaining is that relating to the measure of damages. The defendant having refused to deliver the goods, and the title thereto not having passed to the plaintiff, the measure of damages in harmony with the decisions of this court is stated by Uniform Sales Act, § 67. * * * The court found the market price on August 19th, the day the plaintiff received the defendant's letter in which the defendant stated that he would not deliver the goods, to be for No. 1 cheese 20 cents a pound, and for No. 2 162 cents a pound, and found that the amount designated in the telegram was 25 tubs of No. 1 and just enough No. 2 to make 20,000 pounds. * * * Defendant's proposition was, "Offer you good sound number two at thirteen to make minimum car," to which plaintiff replied, "Complete minimum car with twos per your wire." The term "minimum car" refers to the smallest amount of the specified article which will take the carload rate, and is shown in this case to be 20,000 pounds on cheese east-bound. Under the terms of this contract we think that plaintiff would not have been required to accept more than the amount stated. Plaintiff therefore was entitled to receive 19,375 pounds of No. 1 and one tub of No. 2 to make out a carload lot, or 775 pounds of No. 2. While the trial court found the market price, it appears from all the evidence without dispute that there was, in fact, no market for cheese in or about Brodhead, the place of delivery, or in or near Southern Wisconsin, in the latter part of August, 1914. The defendant himself testified: "On account of the war you know we simply had no market price through our section in the Swiss cheese." "The farmers got hold of theirs and they would not sell at any price, and some that had sold it backed out on it." "We could not get any what we had bought." "For ten days or two weeks you could not get it at any price, no matter what you offered." Another witness testified: "There wasn't practically any market there. It was in such a fluctuating state." And the testimony of all of the other witnesses is substantially to the same effect. There was some evidence as to deliveries made during the latter part of the month, mostly on orders taken earlier, but a careful examination of the evidence shows that there was no market at the time, and hence there could be no market price. Market price is not an imaginary fictitious thing, but is the price at which goods are actually being sold in the market at the time or times in question. The burden was upon the plaintiff to establish the amount of its damages. This it did by showing that there was no available market in which the cheese could be purchased, and that it was obliged to pay for 6,500 pounds of No. 1 cheese 20 cents a pound, and for 12,875 pounds of No. 1 cheese 23 cents a pound, in order to fill contracts which it had made with its customers. This made a prima facie case for the plaintiff. If the damages could have been minimized by purchase of the cheese in the open market, the burden was then upon the defendant to show that there was such an available market in which the goods could have been purchased. As has been said by this court, the idea that there can be a real substantial market price for a given commodity when there is no such commodity for sale in the market is absurd. Cockburn and Another v. Ashland Lumber Company, 54 Wis. 619, 12 N. W. 49. The defendant in this case made no such showing, and, as has been pointed out, it was, on the contrary, established that no market existed. The trial court therefore was in error in assessing the damages at the difference between the contract price and the so-called market price. The rule stated in subdivision 3, can only be applied under the conditions therein prescribed. In other cases, where the property in the goods has not passed to the buyer, and the seller refuses to deliver the goods, the rule laid down in subdivision 2 establishes the measure of damages, which is the loss directly and naturally resulting in the ordinary course of events from the seller's breach of the contract. * * * The evidence in this case shows that the plaintiff purchased 6,500 pounds of No. 1 cheese at 20 cents, and was obliged to pay for the remainder, 12,875 pounds, 23 cents a pound, and that the lowest price quoted for 775 pounds of No. 2 was 17 cents a pound. It does not clearly appear whether plaintiff purchased the 775 pounds at that price or not, but he might have done so. On this basis the plaintiff was entitled to judgment for the sum of $1,095.37, with interest from August 19, 1914. The judgment appealed from should be modified as stated in the opinion, and as so modified it is affirmed, with costs to the respondent. SECTION 7.-RIGHT OF THE BUYER TO SUE THE Sales Act, Section 66. Where the property in the goods has passed to the buyer and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain any action allowed by law to the owner of goods of similar kind when wrongfully converted or withheld. For the moment we leave the subject of the law of contracts and sales, and note one phase of the law of torts. The nature of a tort, and the scope of the field of tort liability was sketched in the general introduction and in the chapters on Agency. We there saw that the wrongful interference with one's property is a tort. When the wrong done is with respect to tangible personal property, or even sometimes to the written evidence of intangible claims, the injury done is known as a conversion. Conversion is a wrong, not only to the owner of the property, but also to the one who has legal 1 |