If a vendee, to whom the vendor has not delivered the articles sold agreeably to his contract, brings an action for the breach, he may be said to have sustained no loss unless the articles have risen in value.1 He could not maintain his action without tendering the price, and if the articles would bring no more than this, he would gain nothing if they were delivered to him, and loses nothing if they are withheld. But although they may have gained nothing in value up to the time when they should *have been delivered, they may have gained greatly since, and it is precisely for the loss of this gain that the vendee demands compensation. A distinction is made here, by some authorities, which does not appear .to us to rest upon perfectly satisfactory and conclusive reasons. It is said, that if the vendee bought on credit, the value of the goods at the time of the purchase, or at the time when delivery was due, should be taken as the measure of damages. But if he paid the price down, or in advance, then he is entitled, not only to their increase in value at the time he brings his action, but to any increase which may have taken place at any intermediate period between the purchase and the action, even if the value had fallen again before the action. (i) But if compensation is to be the measure, it would be difficult to find a very good reason for this difference. It may indeed be said, that one who buys not only on credit, but without any definite period of payment, and who acquires a right to the goods only by tendering the price, and makes this tender only when he brings the action, necessarily fixes that time as the time of the purchase, of the delivery, and of the standard of value. (j) But if one buys to-day, the goods to be delivered to-day, and the price is to be paid in three months, and the goods are withheld without sufficient cause, there does not seem to be any clear and convincing reason for giving him a compensation different from that to which he would be entitled as damages, if he paid the price down, (k) We have considered
(g) Harman v. Goodrich, 1 Greene (la.), 13. See also Wallace v. Clark, 7 Blackf. 29S.
(h) De Witt v. Morris, 13 Wend. 496.
1 A buyer, where the property has not passed to him, can recover the difference between the contract price and the market value of the goods at the time the contract was broken off. Clement, etc. Co. v. Meserole, 107 Mass. 362; Cahen v. Piatt, 69 N. Y. 348; Gordon v. Norris, 49 N. H. 376; Kountz v. Kirkpatrick, 72 Pa. 376; Knibs v. Jones, 44 Md. 396; M'Dermid v. Redpath, 39 Mich. 372; Koch v. Godshaw, 12 Bush, 318; Smith v. Mayer, 3 Col. 207; Atkins v. Cobb, 56 Ga. 86. A warranty binds the seller to repay the difference between the actual value of the goods sold and that of goods such as they were represented to be at the time and place of delivery. Smith v. Green, 1 C. P. D. 92; Van Wyck v. Allen, 69 N. Y. 61; Wolcott v. Mount, 7 Vroom, 261; 9 Vroora, 496; Wing v. Chapman, 49 Vt. 33; McClure r. Williams, 65 111. 390; Cline v. Myers, 64 Ind. 304; Horn v. Buck, 48 Md. 358; White v. Brockway, 40 Mich. 209; Aultman Co. v. Hetherington, 42 Wis. 622; Drake v. Sear, 8 Oreg. 209; Murray v. Jennings, 42 Conn. 9. On a breach of warranty by the delivery of inferior goods, the buyer has a threefold remedy, - he may return the goods, except in the case of a specific chattel, and show, in an action for the price, that the delivery offered was not in accordance with the promise, Heilbutt v. Hickson, L. R. 7 C. P. 438; Butler v. Northumberland, 50 N. H. 33; Morrill v. Nightingale, 39 Wis. 247; he may accept the goods, and bring a cross action for breach of warranty, Hall v. Belknap, 37 Mich. 179; Horn v. Buck, 48 Md. 358; and this he must do if he seeks special damages, Star Glass Co. v. Morey, 108 Mass. 570, 573; McKnight v. Devlin, 52 N. Y. 402; or he may set up the inferiority in lessening the price, Went-worth v. Dows, 117 Mass. 14; Howie v. Kay, 70 N. C. 559. The buyer may elect to set up the inferiority as a defence, or bring a separate action, Davis v. Hedges, L. R. 6 Q. B. 687; if the latter, he need not return the property sold, Seigworth v. Leffel, 76 Pa. 476; McCormick v. Dnnville, 36 la. 645; nor notify the seller, Parks v. Morris, Ac. Co. 54 N. Y. 586. See Bergheim v. Blaenavon Iron Co. L. R. 10 Q. B. 319; Merrimack Manuf. Co. v. Quiutard, 107 Mass. 127. The damages will be greatly augmented by the seller's fraudulent misrepresentation. Cate v. Cate, 50 N. H. 146. Thus a sale of infected cattle as sound gives as damages the value of cattle dying from a communication of the disease. Marsh v. Webber, 16 Minn. 418; Mullettc. Mason, L. K. 1 C. P. 559; Smith o. Green, 1 C. P. D. 92. See as to sale of hurtful articles, George v. Skivington, L. R. 5 Ex. 1; Wellington u. Downer, etc. Co. 104 Mass. 64, 68; and as to latent undiscoverable defects in an article purchased for a specific purpose, Randall v. Newson, 2 Q. B. D. 102; See George v. Skivington, L. R. 5 Ex. 1; Randall v. Newson, 2 Q B. D. 102; Wellington v. Downer, etc. Co, 104 Mass. 64, 68. A buyer can recover nominal if no actual damages. Cockcroft v. N. Y.t etc. R. Co. 69 N. Y. 201. - K.
(i) Shepherd v. Hampton, 8 Wheat. 200; Marshall, C. J.: " The only question is, whether the price of the article at the time of the breach of the contract, or at any subsequent time before suit brought, constitutes the proper rule of damages in this case. The unauimons opinion of the court is, that the price of the article at the time it was to be delivered, is the measure of damages. For mvself only, I can say, that I should not think the rule wonld apply to a case where advances of money had been made by the purchaser under the contract." This distinction was adopted in Clark v. Pinney, 7 Cowen, 681, with the qualification, that in order to recover the highest price between the period for delivery and the day of trial, the suit must be brought within a reasonable time. Davis v. Shields, 24 Wend. 322. In suits on bonds for the replacement of stock, the higher value thereof on the day of trial has boen allowed as the measure of damages, Shepherd v. Johnson, 2 East, 211; M'Arthur v. Seaforth. 2 Taunt. 247; Harrison v. Harrison, 1 C. & P. 412; Downes v. Back, 1 Stark. 318. See Tempest v. Kilner, 3 C. B. 249. But the authority of these cases in this country is very doubtful; Wells v. Abernethy, 5 Conn. 227; per Uosmer, C. J.; Gray v. The Portland Bank, 3 Mass. 390; Suydam v. Jenkins, 3 Sandf. 632-636. They have, however, been recently approved of in Connecticut. West r. Pritchard, 19 Conn. 212. See Com. Bank of Buffalo v. Kortright, 22 Wend. 348; Wilson v. Little, 2 Conist. 443; Sturges v. Keith, 57 111. 451.