Where the subject matter of the sale has not been delivered, or where the contract may be rescinded on the ground of fraud, or otherwise, the remedy of the seller is in an action for damages for breach of contract on the part of the buyer. The law usually fixes the measure of damages for the breach of contract of sale on the part of the buyer, as the difference between the contract price, and the market value at the time and place of delivery.3

1 Frazier vs. Simmons, 139 Mass., 531.

2 Newhall vs. Vargas, 15 Me., 314.

The law makes an apparent exception to the general rule where goods are manufactured upon the agreement of the buyer to receive the goods when ready, the buyer being liable for the full contract price, on the theory that title to the goods has passed to him, the law compelling the seller, however, to hold the goods for the purchaser.4 It is a general rule of law, that where the seller has parted with goods, and has been induced to do so by the fraud of the purchaser, the law permits him to bring an action for the deceit, but since the contract under such circumstances is voidable and not void, the seller has this remedy or a choice of another remedy, if he wishes to ratify the contract after the discovery of the fraud.

An election to rescind the contract, would preclude the seller thereby. The seller, under the circumstances now under discussion, must proceed, within a reasonable time after discovery of the fraud, to make his choice of remedies, whether he will disaffirm the contract, or whether he will ratify it and then seek his damages for the fraud perpetrated by the buyer.5 He has no right to delay action so as to prejudice the rights of a third person, who may in the meantime purchase the goods in good faith.