As the goods belong to the buyer as soon as the property in them has passed, the amount of his recovery if the seller fails the care, the expense of doing so should be deducted. Willis v. Jarrett Const. Co., 162 N. C. 100, 67 S. E. 265.
15Silkstone Ac. Co. v. Joint Stock Coal Co., 36 L. T. Rep. (N. S.) 668; Hinckley v. Pittsburg etc. Co., 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967; Skeele Coal Co. ». Arnold, 200 Fed 393, 118 C. C. A. 545;
Thistle Coal Co. v. Rex etc. Co., 132 la. 502, 109 N. W. 1094; Bullard v. Eames, 219 Mass. 49, 106 N. E. 584; Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S. W. 210; Meyer Bros. Drug Co. v. McKinney, 137 N. Y. App. D. 541. 16 See supra, Sec.1299, to deliver, whether the action is in tort or in contract, is prima facie the market value of the goods at the time and place when delivery should have been rendered. And if the price has been paid, such is the recovery actually allowed,17 Where the goods have no market value at that time and place the same principles must be applied when the property has passed as are applied when the breach of contract consists of a failure to transfer the property.18 If the price has not been paid, however, the seller's breach of duty in failing to deliver the goods involves the result that the buyer is excused from his obligation to pay the price. Accordingly the contract price of the goods must be deducted from the plaintiff's recovery, and thus the measure of damages is in effect the same as if the property in the goods had- not passed.19