If a vendor sues the vendee, he demands, by way of damages, the price the vendee should have paid. Usually this is fixed by the parties; if not, it may be fixed by subsequent facts, as by a bona fide sale by the vendee, (r)1 If not, then a fair price must be given, as ascertained by testimony. If the goods remain in the vendor's hands, it may be said that now all his *damage is the difference between their value and the price to be paid; which may be nothing. This would be true if the vendor chose to consider the articles as his own, or if the law obliged him to consider them as his own. (s) But it does not

(r) In Greene v. Bateman, 2 Woodb. &, M. 359, there was such a misunderstanding as to the price that no express contract could be proved. But the vendee, having offered to return the goods, and the offer having been declined, sold them. It was held, in an action of assumpsit, that he must be treated as the trustee of the vendor, selling on his account and for his benefit, and liable to the vendor for the price received, deducting compensation for his services.

(s) Stantou v. Small, 3 Sandf. 230; McNaughter v. Casually, 4 McLean, 530; Whitmore v. Coats, 14 Mo. 9; Thompson v. Alger, 12 Met. 428; Girard v. Taggart, 5 S. & R. 19. In AUen p. Jarvis, 20 Conn. 38, the defendant contracted with the plaintiff to manufacture a number of surgical instruments, of which the defend* ant was patentee. After they were finished, the defendant refused to accept them. The plaintiff recovered the fun price agreed upon, on the ground that the instruments were of no value to him. Starrs, J., said: " The rule of damages, in an action for the non-acceptance of property sold or contracted for, is the amount of actual injury sustained by the plaintiff, in consequence of such non-acceptance. This is ordinarily the difference between the price agreed to be paid for it and its value, where such price exceeds the value. If it is worth that price the damages are only nominal. But there may be cases where the property is utterly worthless in the hands of the plaintiff, and there the whole price agreed to be paid should be recovered. The present appears to us to be a case of this description. The articles contracted for were those for the exclusive right of making and vending which the defendant has obtained a patent. They seem that the law lays upon him any such obligation. He may consider them as his own, if there has been no delivery; or he may consider them as the vendee's, and sell them, with due precaution, to satisfy his lien on them for the price, and then he may sue and recover only for the unpaid balance of the price; or he may consider them as the property of the vendee, subject to his call or order, and then he recovers the whole of the price which the vendee should pay.(t)1 As the action in could not be lawfully sold by the plaintiffs, and were therefore worthless to them." Where the vendee gives notice before the day of delivery that he will not accept the goods, the measure of damages in an action against him by the vendor, is still the difference between the contract price and the market price, when they should have been delivered, and he cannot have them assessed at the market value of the goods at the time when the notice was given. Phillpotts v. Evans, ft M. & W. 475.

1 If a contract to accept and pay for goods to broken, the measure of damages is the difference between the contract price and the market price at the time the contract to broken Gordon v. Norris, 49 N. H. 376, Haines v. Tucker, 50 N. H. 307 ; Griswold v. Sabin, 51 N. H. 167; Haskell v. Hunter, 23 Mich. 305; Chapman v. Ingram, 80 Wis. 290; Camp v Hamlin, 55 Ga. 259; Pittsburgh, 4c. R. Co. v. Heck, 50 Ind. 303; Laubach v. Lanhacn, 73 Pa. 392; Harris Manuf. Co. v. Marsh, 49 la. 11. A vendor, in a suit against the vendee for the price of goods, may sell them as his agent and recover the difference between the contract price and the selling price, Whitnev v. Boardman, 118 Mass. 242. 247; Hayden v. Demets, 53 N. Y. 426; Camp v. Hamlin. 55 Ga. 259 ; Shaw ban v. Van Nest, 25 Ohio St. 490; or the vendor may keep the goods as his own, and recover the difference between the market price at the time and place of delivery and the contract price, Hayden v. Demets, 53 N. T. 426. In case of a resale, it may be by auction, Smith v. Pettee, 70 N. Y. 13: McLean v. Richardson, 127 Mass. 339; or in any other reasonable mode, Bagley v. Findlay, 82 111. 524. In England, a buyer cannot set up a breach by way of partial defence in an action on a negotiable security given by him for the price, Agra, Ac. Bank v. Leighton, L. R. 2 Ex. 56; he may, however, in some States, McKnight v. Devlin, 52 N. Y. 399, 402; Hill v. Sonthwick, 9 R. I. 299; Wilson v. King, 83 111. 232; Howe Machine Co. v. Reber, 66 Ind. 498; Bryant v. Sears, 49 la. 373; Ingram v. Jordan, 55 Ga. 356. See Follansbee v. Adams, 86 111. 13; Morgan v. Bain, L. R 10 C. P. 15; Freeth v. Burr, L R 9 C. P. 208; Bloomer v. Bernstein, L. R. 9 C. P. 588. - K.

(t) Sands v. Taylor, 5 Johns. 395; Langfort v. Tiler, 1 Salk. 113; 6 Mod. 162; Jones v. Marsh, 22 Vt. 144; Wilson v. Broom, 6 La. An. 381; Gaskell v. Morris, 7 Watts & S. 32; Boorman v. Nash, 9 B. & C. 145. In Sands p. Taylor, the defendants purchased of the plaintiffs a cargo of wheat. After accepting a part, they refused to accept the remainder.

1 In Dustan v. McAndrew, 44 N. Y. 72,78, the court said: " The vendor of personal property in a suit against the vendee for not taking and paying for the property has the choice ordinarily of either one of three methods to indemnify himself. (1) He may store or retain the property for the vendee, and sue him for the entire purchase price.

(2) He may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale.

(3) He may keep the property as his own and recover the difference between the market price at the time and place of delivery and the contract price." This case was approved and followed in Mason v. Decker, 72 N. Y. 595. And see Sawyer v. Dean, 114 N. Y. 469, 481.