(a) Where title has not passed.
The buyer in such a situation must always sue for damages, except as noted in the next section. He is entitled to such damages as he actually sustains provided they are such as must have been contemplated by the parties as the probable result of breach.
If the seller has not passed title to the buyer, and refuses to perform his contract and make delivery the buyer's usual remedy is that of suit for damages. This would be the case whether the goods were ascertained goods at the time the contract was made, or had thereafter become ascertained provided in either case title had not passed, or whether the goods were never ascertained, perhaps not even acquired or manufactured. For in any such case, the goods never having become the buyer's (which is our hypothesis), the buyer cannot claim them (for his right to specific performance in unusual cases, see next section).
The rule of damages in such cases is the usual rule of damages for breach of any contract - that the buyer may have such damages as he has actually sustained and which the seller from what he knew at the time of the making of the contract must have foreseen might result from breach by him.
The usual rule of damages in such a case is the difference between the contract price and the market price at the time and place of delivery; if there is a market price.99
If there is no market price the rule of damages is the difference between the contract price and the reasonable value of the goods.
99. Capen v. De Steyer Glass Co., 105 111. 185. (Holding also that if the goods cannot be bought in the market where they were to have been delivered, cost of getting them from next nearest market may be added.)
This rule of damages may be totally inadequate to protect and compensate the buyer if he bought for a special purpose known to the seller, in which case his damages, according to the general rule of damages in contract cases consist in the loss to which the seller from what he knew at the time of entering into the contract must have contemplated would likely result from breach.
Example 31. Seller agreed to deliver machinery for harvesting. Buyer's damages or default is determined from amount of yield and contemplated yield, although to some extent speculative.100
A buyer, however, must do what he reasonably can to keep down damages.
If the goods have not been delivered, and the title has not passed and the seller refuses to pass title, the buyer, not being in default, may have a decree of a court of equity that the seller specifically perform where damages are not adequate compensation to the buyer, that is, where the goods have a peculiar value to the buyer which cannot be estimated in money damages.
The right to have specific performance of a contract of sale of personal property is not usual. It is an extraordinary remedy which a court of equity will grant if the judgment for damages cannot adequately compensate the buyer, on account of the fact that the thing sold is an article in which he has some peculiar and especial interest.101
100. Cushman Motor Works Co. v. Kelley, 173 Pac. (Okla.) 1042.
101. See Volume on Contracts.
If the goods are undelivered, but title has passed to the buyer, the buyer not being in default, that is, having paid or tendered the price, may obtain the goods themselves in an action of replevin.
We saw in the previous section that if the title has not passed, the buyer cannot, except under unusual circumstances, obtain the goods themselves, but must content himself with damages, but if the title has clearly passed, the goods then are the buyer's and he may obtain them from the seller as he may obtain his property from any other person who wrongfully withholds it. This assumes that the buyer is himself not in default in the performance or tender of performance required of him by the contract.