When a defendant has broken his contract to furnish goods or services, it may become a question of judgment on the part of the plaintiff whether loss is likely to be greater if he seeks to replace at once what had been promised by the defendant, or if he defers replacement until later, or makes alterations in what has been furnished him, or goes without what was promised altogether. The course which he takes affects the damages to which he is entitled in only two classes of cases: (1) Where consequential damages are recoverable and (2) where the breach is anticipatory or at least precedes the time of performance of part of the defendant's obligation. In the typical case of a breach when, and not before, the defendant's entire performance was due, the plaintiff's direct damages are based on the value at that time of the performance which the defendant agreed to render. This will be true whether the plaintiff replaces the promised performance by going into the market or not. Replacement or opportunity of replacement in such a case may be evidence of value, but that is all. In the two classes of cases first mentioned, however, the amount of damages recoverable may be affected. If in the exercise of reasonable judgment the plaintiff clearly ought to have replaced or repaired, or ought not to have done so, and by failing to take the prudent course suffers unnecessary injury, he cannot recover the damages which might thus have been avoided.62 On the other hand, if he reasonably chooses one of these courses and it turns out that the damages are thereby increased rather than diminished the defendant is liable for the increased damages.63

60 Coppola v. Marden, Orth & Hastings Co., 282 111. 281, 118 N. E. 489; Cook Mfg. Co. v. Randall, 62 la. 244, 17 N. W. 507; Frohlich v. Independent Glass Co., 144 Mich. 278,

107 N. W. 889. See further, infra, Sec.1385.

61 See Kadish v. Young, 108 111. 170, 48 Am. Rep. 548.

Where the defendant has not wholly failed to perform but has given inadequate performance, it becomes a question of judgment whether it is possible by further expenditure (and if possible whether it is likely to be profitable) to repair or add to the inadequate performance or whether it is better to take the performance for what it is worth in the condition in which it was rendered. In any event the question to be determined is the value of the performance rendered. A machine with defective parts may be easily repaired; if so, the value of the defective machine is that of a perfect machine less the cost of repair. On the other hand, it may be more expensive to repair the machine than to buy a new one, or the success of any attempt to repair it may be so problematical as to make it unreasonable to attempt repair. In such cases the value of the machine is its value as scrap, or for any purpose a defective machine can be put to.

Sec.1355. When Consequential Damages Are Natural And Proximate

As has been seen, damages for the proximate and natural consequences of a breach are recoverable, and it becomes necessary to inquires when consequential damages fall within this category, when no notice has been given of special circumstances.64 Where a seller fails to deliver goods which he has contracted to, consequential loss from injury to business,65 or from inability to carry out or get the advantage of a subcontract,66 or to make other special use of the promised performance,67 cannot be recovered unless from the character of the contract, the known character of the buyer's business,68 or otherwise, the seller had notice when the contract was entered into that the loss in question would be a natural consequence of the breach.69 Under this principle where goods are sold with a warranty to a dealer, it must be assumed that the dealer may resell them with a similar warranty to a sub-purchaser. Accordingly if this is done and the sub-purchaser recovers damages from the original buyer, the latter has a prima fade right to recover these damages against the seller who originally sold him the goods.70 And even though the original buyer has not yet been held liable to his sub-vendee, the amount of his probable liability may be recovered from the original seller.71 The buyer's right is only prima facie, where the warranty in question is of quality, differing from his right for breach of warranty of title. If a buyer of personal property, the title to which is warranted, is sued by one claiming a superior title existing at the time when the warranty was given, the seller is concluded by the judgment, if he is given notice and an opportunity to defend the action.71a The judgment necessarily measures the seller's breach of duty. The rule governing covenants of title to realty is the same.71b But where quality is warranted, and the goods are resold with a similar warranty, the original seller, though notified of an action by the sub-purchaser against the first purchaser, and asked to defend may refuse to do so without thereby becoming estopped to deny, in spite of a judgment in favor of the sub-purchaser, that his own warranty was not broken, or not broken so seriously.71 c The goods may not have been in the same condition when resold as they were when first sold. It must always be open to the original seller to contest this question. The rule in regard to special damage due to delay in the delivery of goods is the same as in regard to failing to deliver them altogether. There have been allowed as damages for the failure of a carrier promptly to transport a theatrical company's scenery the profits which were lost through inar bility to give an entertainment which was prevented by the carrier's default;72 but in the absence of notice when the con-

62 Paysu v. Saunders, [1919] 2 K. B.

581; Mather v. Butler County, 28 la. 253; Frick Go. p. Falk, 50 Kans.

644, 32 Pac. 360; Miller v. Mariners'

Church, 7 Me. 51, 20 Am. Dec. 341;

Grindle v. Eastern Express Co., 67