Since the only compensation a court of law can give is pecuniary, it is constantly necessary in appying the rule of compensation to determine the pecuniary value of performance which has been promised and frequently also of performance which has been given. An attempt to fix pecuniary value involves the use of standards, and different standards are conceivable. There is a standard of market price if there is a market for the performance in question; there is a standard of the cost of replacing; there is the standard of the pecuniary value of the performance for use by a party to a contract. Where there is a market price this will generally be the test though in special cases the defendant may be chargeable under another standard.
21 Moorhead v. Minneapolis Seed Co., 139 Minn. 11, 166 N. W. 484, L. R. A. 1918 C. 391; Reiger v. Worth, 127 N. C. 230, 37 S. E. 217, 52 L. R. A. 362, 80 Am. St. Rep. 798. In the former case the court said: "It is manifest that where there is a partial crop, and that is the usual case, the first measure [Difference between the value of the crop as it was, and as it should have been] is the true one. There is no other. Some of the cases involving partial failures and applying the first measure distinctly state that the second measure is the true one when the loss is total. Vaughan's Seed Store v. Stringfellow, 56 Fla. 708, 48 So. 410; Ford v. Farmers' Exchange, 136 Tenn. 287, 189 S. W. 368, L. R. A. 1917 B. 1106. Still there are cases applying rather as a matter of course and without discussion the first measure when the failure is total. Shaw v. Smith, 45 Kans. 334, 25 Pac. 886, 11 L. R. A. 681; Crutcher v. Elliott, 13 Ky. L. Rep. 592; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136; Depew v. Peck Hardware Co., 121 N. Y. App. Div. 28, 105 N. Y. S. 390." The Minnesota court deemed the measure of damages based on the crop which should have been raised too conjectural where there was a total failure.
22 Taylor Mfg. Co. v. Hatcher Mfg. Co., 39 Fed. 440, 3 L. R. A. 587; Fontaine v. Baxley, 90 Ga. 416,17 S. E. 1015; Howe Machine Co. v. BryBon, 44 la. 159, 24 Am. Rep. 735; K. & R. Film Co. v. Brady, 172 N. Y. S. 268; Sterling O. Co. v. House, 25 W. Va. 64; Ramsey v. Holmes, etc., Co., 85 Wis. 174, 55 N. W. 391.
It is not simply the value of the defendant's performance which may be in question but that of the plaintiff, and it is possible for the defendant to assume such liability that he is chargeable with a low value for the plaintiff's performance, and a high value for his own.23 On the other hand, where the defendant has notice of a special use for goods which he has promised, though the goods have a market value, it will not be the sole basis of the plaintiff's recovery if the goods are not immediately replaceable.24