Not only is it disputed when the buyer's cause of action or right to substantial damages arises, but also what is the basis for calculating substantial damages when the right to them has arisen. On principle it would seem clear that the buyer's damage is the full value of the goods, irrespective of the price paid for them, and this rule finds considerable support.20 In Massachusetts the value of the goods is thus allowed even though a buyer has not been dispossessed.21 It is sometimes said that the value is to be taken as of the time when the wrong was committed,22 which would be either the time of the sale or the time of dispossession, according to the doctrine held by the court in question. But whatever the time of the wrong there seems no reason for refusing to admit evidence of subsequent circumstances, as mitigating or increasing proximately the damages. This was well brought out in a Minnesota decision.23

15 Sumner v. Gray, 4-Ark. 467.

16 Tipton v. Triplett, 1 Mete. (Ky.) 570.

17 Posey's Trustee v. Wathen, 90 Ky. 473, 14 S. W. 418.

18 Gross v. Kierelri, 41 CaL 111; Hodges 0. Wilkinson, 111 N. C. 66, 15 a E. 941,17 L. R. A. 645.

19 Matheny v. Mason, 73 Mo. 677, 680,39 Am. Rep. 641.

20 Rowland's Admr. v. Shelton, 26 Ala. 217; Marlatt v Clary, 20 Ark. 251; Dabovich v. Emerie, 12 CaL 171; Grose v. Hennessey, 13 Allen, 389;

Brown v. Pierce, 97 Mass. 46, 93 Am. Dec. 67; Hendrickson v. Back, 74 Minn. 90, 76 N. W. 1019; Hoffman v. Chamberlain, 40 N. J. Eq. 663, 5 Atl. 160, 63 Am. Rep. 783. The earlier Massachusetts and Tennessee decisions of Eaton v. Melius, 7 Gray, 666, and Crittenden v. Posey, 1 Head, 311, are inconsistent with the later decisions in those States cited above.

21 Grose v. Hennessey, 13 Allen, 389.

22 Rowland's Admr. v. Shejtan, 25 Ala. 217.

The court said: " It seems that the charge to the jury was that the vendee was entitled to recover as damages the value of the property when it was taken from him, and damages were awarded on this basis, and that in passing upon the motion the court held its charge to have been erroneous, and that it should have stated that the vendee's damages were the price paid for the chattel. Unless we are to lose sight of the cardinal principle which governs when estimating and awarding damages in civil actions, which is simply compensation to the injured party, the court was right in its charge, and wrong when it concluded that an error had been committed." u In many cases following the analogy of the law governing covenants in conveyances of real estate,25 it has been held that the buyer can recover only the purchase money with such expenses as he may have properly incurred in defending his title.26 This rule

23 Hendrickson v. Back, 74 Minn. 90, 76 N. W. 1019.

24 The court continued: "It was held in Close v. Croesland, 47 Minn. 500, 50 N. W. 694, in a case involving this very question, that the damages are the actual loss, which is the value of the chattel purchased. Of course, there might be circumstances which would affect any particular case. Under the rule established by the granting of the motion, the damages actually sustained might be more or might be less than the recovery, depending on the real value of the chattel when the paramount title was asserted as against the vendee; that is, whether the real value was more or less than the price paid. A good illustration of this is found in the present case. Defendant purchased in 1892, agreeing to pay $75 for the harvester and binder in question. He gave his note for this sum to his vendor, plaintiff's intestate, and the note in suit was given in renewal in 1894. The machine was mortgaged, but no claim for possession was asserted until 1895, and it was then worth but $25. Defendant had the possession and the use for three years, during which time the property would materially decrease in value. His actual loss when the paramount title or right was asserted was the value of the property when taken away from him, and his loss would have been the same if he had bought the machine for $10 in 1892."

25 See infra, {{ 1401, 1402.

26 Ellis v. Gosney's Heirs, 7 J. J. Marsh. 109; Noel v. Wheatley, SO Miss. 181; Armstrong v. Percy, 5 Wend. 535; Arthur v. Moss, 1 Or. 193; Hudson v. Norwood, 13 Tex. Civ. App. 662, 35 S. W. 1075; Cranberry v. Hawpe, 30 Tex. 409; Gobs v. Dytsant, 31 Tex. 186; Dueoker v. Goerea, 104 virtually confines the remedy of the buyer to rescission and restitution, a remedy to which the injured buyer is undoubtedly entitled if he so elects, but it is a violation of general principles of contracts to deny him in an action on the contract such damages as will put him in as good a position as he would have occupied had the contract been kept. It is of course true that even if the value of goods furnishes the measure of damages, in the absence of evidence to the contrary the price will be regarded as fixing that value,27 The buyer who has been dispossessed is also entitled to recover as consequential damages, any expense reasonably incurred in defending his right to the goods against the true owner.28 Among such expenses should be included reasonable fees paid to buyer's counsel.29