It has often been urged that the value of the goods at the time of the wrongful conversion or refusal to deliver by the seller may not fully compensate the buyer for the wrong done him. It may be supposed that the value of the goods increases rapidly immediately after the time fixed by the contract for delivery. The circumstances of the case may be such as to make it reasonably clear that the buyer would have retained the goods until the advance in price and would thus have got the advantage of their increased value. If the buyer has not paid the price it may be urged in answer to this that on the breach of the seller's obligation the buyer should buy elsewhere with his money and that if he did so he would then get the advantage of the subsequent increase in price. This answer seems sound and is generally accepted, but if the buyer has paid the price the reasoning is inapplicable. The buyer may not have money or credit to secure a further supply of goods, and if he has it is not just to deprive him of the right to make as many profitable contracts for his own benefit as his means and credit will permit. Accordingly in some jurisdictions, especially in regard to the sale of stocks and other articles of rapidly fluctuating value, the rule has been suggested that the plaintiff ought to receive damages based on the highest market price up to the time of trial.20 But this rule allows the plaintiff a very inequitable advantage over the defendant. Months and perhaps years may elapse be -fore the case comes to trial, and to give the plaintiff the advantage of the highest intermediate price is to give him a speculative advantage which it is hardly conceivable he would actually have realized to the full and perhaps not in any part. Accordingly the Supreme Court of the United States, following the later New York decisions, has qualified the rule by allowing only the highest intermediate value up to the time when the plaintiff, having discovered the defendant's default, could reasonably supply himself elsewhere with similar property.21 The ordinary rule of confining the plaintiff's damages to the value of the goods at the time of the defendant's breach of duty has at least the merit of certainty and ease of application. It is undoubtedly the general rule everywhere, and in many jurisdictions would doubtless be applied even in the case of stock or goods of fluctuating value.22 At least where the buyer has not paid for the property contracted for, even if it is stock or goods of fluctuating value, most courts calculate the buyer's damages from the value of the property on the day of the breach.88 How far the principles stated in this section may be qualified by the allowance of consequential damages is elsewhere considered.24
17 Deere v. Lewis, 51 fll. 254; Win-side Bank v. Lound, 52 Neb. 469, 72 N. W. 486; Hill v. Smith, 32 Vt. 433. See Uniform Sales Act, Sec. 66.
18 See supra, Sec. 1379.
19 Chinery v. ViaU, 5 H. & N. 288. See also Kennedy v. Whitwell, 4 Pick. 466.
20 See Markham v. Jaudon, 41 N. Y. 235 (overruled); Baker v. Drake, 53 N. Y. 211, 13 Am. Rep. 607, 66 N. Y. 518, 23 Am. Rep. 80; Wright v. Bank of Metropolis, 110 N. Y. 237, 18 N. E. 79,1 L ft A. 289, 6 Am. St. Rep. 356. In Livesley v. Krebe Hop Co., 57 Greg. 352, 107 Pac. 460, 112 Pac. 1, it was said that a seller who unreasonably delayed reselling goods on the buyer's account was liable for the highest value between the date when delivery was due and when the resale took place. (See also Krebe Hop Co. ft livesley, 51 Or. 527, 92 Pac. 1084, 55 Or. 227, 104 Pac. 3, 59 Or. 574, 114 Pac 944, 118 Pac. 165). In support of this the court cited Hamer tr. Hathaway, 33 Cal. 117; Learock v. tanon, 208 Pa. 602, 57 AU. 1097.
21 Galigher v. Jones, 129 U. S. 193, 9 S Ct. 335, 32 L. Ed. 658 (citing many State decisions); McKinley v.
Williams, 74 Fed. 94, 20 C. C. A. 312, 36 U. S. App. 749; Wilson v. Colorado Mining Co., 227 Fed. 721,142 C. C. A. 245; Wallace v. Noble, 203 Mich. 58 168 N. W. 984.
22 Beaty v. Johnston, 66 Ark. 529, 52 S. W. 129; Bank of Culloden v. Bank of Forsyth, 120 Ga. 575, 48 S. E. 226, 102 Am. St. 115; Porter v. Buckfield Branch Railroad, 32 Me. 539; Belden v. Krom, 34 Wash. 184, 75 Pac. 636; McNeil v. Fultz, 38 Can. Supreme, 198. In Williams v. Reynolds, 34 L. J. Q. B. 221, and Kennedy v. Whitwell, 4 Pick. 466, the defendant had resold goods, subsequently to their conversion, at a higher price than the market value at the time of the defendant's breach of duty. Even in such a case, the plaintiff was held not entitled to the advantage of this enhanced price.