Owing to other special circumstances the buyer may actually suffer less damage from the seller's failure to deliver than the difference between the contract price and the market price; as for instance where if the contract had been kept the buyer must have put the goods to a less advantageous use than selling them at the market price. If the plaintiff was under no obligation to put the particular goods to be furnished by the seller to this use he would have a right to change his mind and realize the market value. In such a case, putting the goods to their normal and ordinary use would be a possibility which should have been contemplated by the seller even though he knew prior to the formation of his contract of the buyer's intention. But the buyer may have been bound by a sub-contract with a third person to deliver to the latter the very goods which he expected to obtain from the defendant. Here there is authority for restricting the plaintiff to the profit which he would have obtained had he performed his contract with the third person.45 The Uniform Sales Act,46 however, provides that a buyer's "measure of damages in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver."47 The use of the word "greater" in this passage negatives the possibility of restricting the plaintiff's damages in the case supposed, and this conclusion seems nearly if not quite always sound on principle. The extent of the wrong which the defendant has committed is measured by the difference between the market price and the contract price, and though the full amount of the reparation for this wrong would not have accrued to the profit of the plaintiff if the contract had been carried out, the profit which he would have made, added to the liability to which he exposed himself to the third person with whom he contracted, together amount to the full sum for which the defendant should be held.48 It is only in the exceptional case where the buyer in his sub-contract protects himself from liability by engaging to resell only in case the original seller fulfils his contract that the defendant can if ever fairly ask a restriction of the plaintiff's damages.49 Perhaps the desirability of maintaining a uniform rule may have weight as a reason for refusing to diminish the plaintiff's damages.50 Suppose one who had contracted to buy a race-horse worth a thousand dollars had agreed to let it for its life to a friend for five dollars a year, and the friend had agreed to hire it for that price. Does the fact the buyer has agreed to give away or to sell below cost part of the value for which he contracted absolve the defendant to that extent from the consequences of his breach of duty? This is the problem to which the law as yet can hardly be said to afford a conclusive answer. It seems immaterial on the question of limiting damages whether the defendant was aware of the sub-contract,51 or whether it is made after the original contract.52 If special limitation of damages is to be allowed, it is because the plaintiff gets full compensation from the smaller amount; and this reason would not be dependent on the defendant's expectations.53

39 Lawrence v. Porter, 63 Fed. 62, 22 U. S. App. 483, 11 C. C. A. 27, 26 L. R. A. 167.

40 Lawrence v. Porter, 63 Fed. 62, 11 C. C. A. 27, 22 U. S. App. 483, 26 L. R. A. 167; Campfield v. Sauer, 189 Fed. 576, 111 C. C. A. 14, 38 L. R. A. (N. S.) 837; Coppola, v. Marden, Orth & Hastings Co., 228 111. 281, 118 N. E. 489; Plesofsky v. Kaufman, 140 Tenn. 208, 204 S. W. 204, 1 A. L. R. 433. See also EGrsoh v. Georgia Iron & Coal Co., 169 Fed. 578, 95 C. C. A. 76.

41 Ibid. See also Weber Implement Co. v. Acme Harvester Mach. Co., 268 Mo. 363, 187 S. W. 874.

42 Louis Cook Mfg. Co. v. Randall, 62 Iowa, 244, 17 N. W. 507; Frohlich v. Independent Glass Co., 144 Mich. 278,107 N. W. 889; F. W. Kavanaugh Mfg. Co. v. Rosen, 132 Mich. 44, 92 N. W. 788, 102 Am. St. 378; Coxe v. Anoka Waterworks Ac. Co., 87 Minn. 56, 91 N. W. 265. See also Haver-meyer v. Cunningham, 35 Barb. 515; Lakner v. Korn (N. Y. Misc.), 164 N. Y. S. 165.

43 See cases aupre, n. 40; also Paysu v. Saunders, [1919] 2KB. 581; Warren v. Stoddart, 105 U. S. 224, 26 L. Ed. 1117.

44 See Gruen v. Ohl, 81 N. J. L. 626, 631, 80 Atl. 547.

45 Messmore v. New York Shot & Lead Co., 40 N. Y. 422; Isaacson v. dean, 165 N. Y. S. 218. See also Wiertham v. Chicoutimi Pulp Co. [19111 A. C. 301; Williams v. Agius, 11914) A. C. 510, per Lord Haldane;

Foes v. Heineman, 144 Wis. 146, 128 N. W. 881.

46 See supra, Sec.1383 n. 25.

47 Sec. 67 (subdivision 3). And see Goldfarb v. Campe Corp., 164 N. Y. S. 583, 99 N. Y. Misc. 475.

48 See Floyd v. Mann, 146 Mich.

356, 109 N. W. 679. Consider in this connection also the right of a bailee to recover from a converter the full value of the bailed goods. Bowen v. New York Ac R., 202 Mass. 263, 88 N. E. 781.

49 A case of this sort was Foes v. Heineman, 144 Wis. 146, 128 N. W. 881.

50 In British Westinghouse Electric etc., Co. v. Underground Electric, etc., Co., [1912] A. C. 673, 691, Lord Hal-dane said, with apparent approval of 'the conclusion of the Court of Appeal, of the measure of damages for breach of covenant by a tenant to leave premises in repair: "In Joyner v. Weeks, [1891] 2 Q. B. 31, the lessor had made a lease to another lessee by way of anticipation, to commence from the expiration of the term of this lease, and the new lessee had made no claim to be reimbursed the cost which he had incurred in repairing after the expiration of the demised lease. Wright, J., held that the true test was the amount of diminution in value to the lessor, not exceeding the cost of doing the repairs. The Court of Appeal, including Lord Esher and Fry, L. J., took a different view. They thought that there had been a constant practice of laying down the measure of damages as being the cost of putting into repair, and that in the particular class of cases with which they were dealing it was a highly convenient rule which ought not to be disturbed."

51 See Wertheim v. Chiooutimi Pulp Co., [1911] A. C. 301,

52 Fobs v. Heineman, 144 Wis. 146, 128 N. W. 881.

53 If the argument sometimes used in regard to the rule of Hadley v. Baxendale and criticised, supra, Sec.1357, namely, that consequential damages are allowed because in effect con-