The test of market value is, at most, but a means of getting at the buyer's loss, and under special circumstances it may cease to be exact or may become inapplicable. The buyer may be able to get similar goods for less than the market price, and if he does buy goods against the defendant's contract his damages must be based on his actual loss; namely, the difference between the price he paid and that which he would have had to pay under the contract.38
If the buyer had paid for the goods it seems clear that he would be under no obligation to put out a further sum of money in order to take advantage of a favorable offer to purchase such goods elsewhere at less than market price; and if the buyer chooses to take advantage of an exceptional chance to buy goods cheaply, and does not profess to make the purchase for the account of the defaulting seller, there seems no reason why the buyer should not be allowed to claim the benefit of the transaction for himself and not give the seller the advantage of it. Even though the buyer has not paid the price, it may be urged that he is under no duty to the defaulting seller to give him the advantage of a special opportunity to buy at a low price if only a limited amount of the goods can be obtained at that price. It seems, however, to be generally assumed that the buyer is under a duty to purchase the goods at a diminished price on the seller's account if he can do so, and even though bis opportunity to purchase at a reduced price is from the defaulting seller himself, it has been held he must take advantage of the opportunity in order to minimise the damages; 39 for not infrequently the defaulting seller offers to sell to the buyer the goods contracted for on terms less favorable than those agreed upon in the contract, but more favorable than could be obtained by purchase in the market. Especially common is the offer of a seller, who has contracted to sell on credit and who later refuses to do so, to sell for cash. Generally such an offer is made as an offer of settlement and as the basis for an accord and satisfaction. If so the buyer clearly need not accept the offer, and this is generally recognized by the decisions.40 Nor need he do so if his pecuniary circumstances are such qs to make payment of cash an undue hardship.41 Some cases, indeed, seem broadly to deny any limitation of the buyer's damages because of such an offer.42 But if acceptance of the offer of the seller clearly will diminish the buyer's damages, and will subject him to no unreasonable hardship, the principle that a plaintiff cannot recover for avoidable consequences seems applicable.43 In any event, should the buyer pay more than the market price, he cannot charge the excess against the seller, for not the seller's wrong but his own folly was the cause of the excessive payment.44
36 Human v. Washington Fuel Co., 228 111 296, 81 N. E. 1017. 37 Supra, Sec. 1347; infra, Sec. 1393. 38 Those v. Weils, 166 Pa. St. 9,
31 Atl. 63, 45 Am. St. Rep. 638; Morris v. Supplee, 208 Pa. St. 263, 67 Atl, 666.