Where a buyer of goods under an executory agreement breaks his contract by refusing to accept the title to goods which are in existence, and either the local law does not allow the virtual specific performance previously discussed,8 or the seller does not wish that relief, it is to be observed that if the buyer had accepted and paid for the goods as he was bound to do by his contract, the seller would have been obliged to surrender their ownership, and to incur all the expense of delivering them at the time and place agreed on, and he would on the other hand have received the price or become entitled to it. The buyer's wrong leaves him still owner of the goods and frees him from any expense of delivering them, and, on the other hand, deprives him of the price. His loss then is the difference between the value of the goods and the price which he was to receive for them; and if he is saved any expense by not being obliged to put the goods in deliverable condition or to transport them to a particular place, this also must be taken into account. But the essential element of damage is conveniently expressed by the formula - the difference between the contract price, that is, the amount of the obligation which the buyer failed to fulfill, and the market price, that is, the value of the goods which the seller has left upon his hands. As the market price varies, with time and place, it is essential to fix upon the market price at the time and place provided in the contract.7 The matter terest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be." Chalmers, in his annotation of the section, quotes as the authority for this provision, Mercantile Law Commission, 1855 (2d report), p. 47: "The seller may sue the purchaser for the price and interest, whether the goods sold are specified or not, provided goods according to the contract have been tendered to the purchaser." 6 Supra, Sec.Sec.1365-1377. 7 The Uniform Sales Act provides: "(1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance.
" (2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract.
" (3) Where there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances, showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if may, therefore, be summarized- that the measure of damage is the difference between the contract price and the market price of the goods at the time when and the place where the contract should have been performed.8 If the seller, after waiting some time after the breach, resells the goods at a higher price than that which prevailed at the time of the breach, the defendant cannot have the benefit of the increase.9 If the market value for the goods equals or exceeds the contract price, though a legal wrong has been committed, the plaintiff has suffered no damage thereby and, though entitled to judgment, can only get nominal damages.10 As the burden is upon the plaintiff to show what damage, if any, he has suffered, it is incumbent upon him, in order to make out a case for recovery of more than nominal damages, to show that the market value of the goods is less than the contract price.11 no time was fixed for acceptance, then at the time of the refusal to accept."
For decisions under this section, see Urbansky v. Kutinsky, 86 Conn. 22, 84 Atl. 317; Home Pattern Co. v. W. W. Merta Co., 86 Conn. 494, 86 Atl. 19; Progressive Ac. Corp.v. Ansonia Foundry Co., (Conn. 1918), 105 Atl. 322; Rylance v. James Walker Co. 129 Md. 475, 99 Atl. 597; Bixler v. Finkle, 85 N. J. L. 77, 88 Atl. 846; Varley v. Belford, 156 N. Y. S. 597; Moaler Safe Co. v. Brenner, 100 N. Y. Misc. 107, 165 N. Y. S. 33Sec.; Michael v. FToridina Mfg. Co., 167 N. Y. S. 244. For the measure of damages in instalment contracts where the buyer is in default, see the analogous cases cited infra, Sec. 1383, where the seller was in default.
8Barrow v. Arnaud, 8 Q. B. 595, 608, per Tindal, C. J.; Yellow Poplar Lumber Co. v. Chapman, 74 Fed. 444, 42 U. S. App. 21, 20 C. C. A. 508; Hopkinsville Mill Co. v. Gwin, 179 Ala. 472, 60 So. 270; Tahoe Ice Co. v. Union Ice Co., 109 Cal. 242, 41 Pac. 1020; Hassell Iron Works v. Cohen, 36 Colo. 353, 85 Pac. 89; Ridgley v. Mooney, 16 Ind. App. 362,
45 N. E. 348; Lawrence Canning Co. v. Mercantile Co., 5 Kans. App. 77, 48 Pac. 749; Bonney v. Blaisdell, 105 Me. 121, 73 Atl. 811; Tufts v.. Bennett, 163 Mass. 398, 40 N. E. 172; Houghton v. Furbush, 185 Mass. 251, 70 N. E. 49; Stock v. Snell, 213 Mass. 449, 100 N. E. 830; Kellogg v. Frohlich, 139 Mich. 612, 102 N. W. 1057; Brown v. Trinidad Asphalt Co., 210 Mo. 260, 109 S. W. 22; Punke v. Allen, 54 Neb. 407, 74 N. W. 832, 69 Am. St. Rep. 716; Massman v. Steiger, 79 N. J. L. 442, 75 Atl. 746; Unexcelled Fire Works Co. v. Polites, 130 Pa. St. 536, 18 Atl. 1058, 17 Am. St. Rep. 788; Jones v. Jennings, 168 Pa. St. 493, 32 Atl. 51; Huguenot Mills v. Jempson & Co., 68 S. C. 363, 47 S. E. 687, 102 Am. St. Rep. 673; Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 17 L. R. A. (N. S.) 807. But see Diels v. Kennedy, 88 Neb. 777, 130 N. W. 740.
9Jamal v. Dawood,  1 A. C. 175.
10 Wheeler v. Cleveland, 170 Ala. 426, 54 So. 277; Brooke v. Laurens Milling Co., 84 S. C. 299, 66 S. E. 294.
11 Benjamin v. Maloney, 155 Fed.
Though the market value at the time and place where delivery should have been accepted under the contract is the exact matter to be determined, that value sometimes cannot be determined directly. There may be no available market at that place. In such a case the value at the nearest available market will be accepted, taking the expense of transportation into account.12