After an anticipatory breach a defendant should not be liable for any greater damage than is naturally caused by the defendant's wrong. If the plaintiff by taking one line of conduct may secure such advantage as the contract entitles him to at less expense to the defendant than if another course is pursued, the plaintiff should be allowed only damages based on the former course.30 How far this principle precludes the plaintiff from continuing performance after repudiation of a contract for the manufacture of goods or for work and labor has been considered in another section.31 Another application of the principle, however, has been suggested. It has been held in England that after repudiation has been accepted as a breach the injured party should at once make another contract with a third person similar to that which has been repudiated, if the market prices are clearly tending in a direction which will make that the more profitable course for the defendant.32 There are two reasons to be urged against the correctness of such decisions. In the first place it is always impossible to be certain whether prices are going up or down. To speak of a market "obviously falling " or " obviously rising " is to speak without due reflection. The prices at which persons will make contracts for future delivery must always be based on the estimate of well-informed persons as to the future value of the goods in question. Many things are obvious after the event which were not so previously. At least it is never so clear what turn the market price of a commodity may take that it is entirely certain that if the plaintiff at once makes a substituted contract it will turn out to be profitable for the defendant. It is not clear then that to take such a course will mitigate damage, and though for his own protection it may often be reasonable for a party to take this course, and if reasonable he should be allowed damages assessed on the basis of the expense of obtaining the new contract,33 there seems no reason why he should adopt such a course for the defendant's benefit. Another reason against the English decisions is that the plaintiff is entitled to use such money or credit as he has for making All the forward contracts he is able to for his own benefit. He need not, even though the transaction seems likely to be profitable, give the repudiating defendant the advantage of any contract he is able to make when the making of such a contract limits his ability to make contracts for his own benefit.34 At least, it is clear that even though the breach be regarded as having occurred at the time of repudiation, yet it was a breach of a contract to deliver at a later day, and, if it was not a reasonable thing under the circumstances to take some action at the earlier day the damages must be calculated on the basis of the price of the goods at the time when delivery should have been made. By no reasoning can the contract be treated as a contract to deliver goods at the date of the repudiation.35 In a narrow class of cases it may be that, following the analogy of the law governing breach at the time of performance, the market value of a contract such as that which the defendant has repudiated should be taken as the basis of damages, rather than the actual value of performance as proved by the event, but it is only a limited class of contracts for future performance -such as contracts to sell wheat or cotton in the future, or to insure - which can be said to have a market value; and it is to be observed that even in the case of a breaqh At the time for performance, the plaintiff is not restricted to damages based on the difference between contract price and market price where injurious consequences were within the contemplation of,the parties. If this principle is applied to an anticipatory breach, it can hardly be questioned that the parties when the contract was made contemplated as the natural consequences of a breach, the injury which would accrue at the time of performance, that is the difference between the contract price and the market priqe then - not the cost of a new forward contract at some prior date.

.Wis. 29, 36, 80 N. W. 91; Confederation life Assn. v. Labatt, 27 Ont. App. 321.

27 Hoffman v. Chamberlain, 40 N. J. Eq. 663, 5 AH. 150, 53 Am. Rep. 783.

28 Rowland v. Shelton, 25 Ala. 217; Mariatt v. Clary, 20 Ark. 251; Johnson o. Meyers' Exr., 34 Mo. 255; Annstrong v. Percy, 5 Wend. 535.

29 Harding v. Laririn, 41 111. 413; Huraton v. Spratt, 52 Me. 202;Ryerson v. Chapman, 66 Me. 557; Allis v. Nininger, 25 Minn. 525; Balte v. Bedemiller, 37 Or. 27, 60 Pac. 601, 82 Am. St. Rep. 737. The contrary was held, as it seems erroneously, in Reggio v. Braggiotti, 7 Cush. 166; Clark v. Mumford, 62 Tex. 531.

30 Sackville v. Storey (Tex. Civ. App.), 149 S. W. 239. And see supra, Sec. 1298.

31 Supra, 11298.

32 Roth v. Taysen, 73 L. T. R. 628. See also Re South African Trust, etc., Co., 74 L. T. 769; Nickoll v. Ashton, [1900] 2 Q. B. 298; Central Lumber Co. v. Arkansas Valley Lumber Co., 86 Kans. 131, 119 Pac. 321.

33 Rcehm v. Horst, 178 U. S. 1, 44 L. Ed. 953, 20 Sup. Ct. 780; Skeele Coal Co. v. Arnold, 200 Fed. 393, 118 C. C. A. 545. In Missouri Furnace Co. v. Cochran, 8 Fed. Rep. 463, the court, however, held that the plaintiff was not entitled to damages on the basis of a new forward contract lie had entered into after the repudiation, but could only recover damages based on the actual price at the time fixed by the contract for performance.

34 In Kadish v. Young, 108 111. 170, 48 Am. Rep. 548, the court held plaintiff need not make a new forward contract. See also Hinckley v. Pittsburg Steel Co., 121 U. S. 264, 7 S. Ct. 875, 30 L. Ed. 967; Missouri Furnace Co. v. Cochran, 8 Fed. 463; J. P. Gentry Co. v. Margolius, IK) Tenn. 669, 75 S. W. 959.

Sec.1398. Contract To Pay A Sum Of Money In Goods

It is a not uncommon form of contract for a debtor to promise to pay a stated sum of money in goods or services. If the agreement fixes no rate at which the goods or services are to be taken the creditor's measure of damages is the amount of the debt.36 If the creditor breaks such an agreement and collects his claim in money, the debtor's measure of damages is the profit which he would have made had he been allowed to furnish the goods or services.37 In both cases it is necessary to value the performance which the debtor was to make. The two methods of valuation illustrate the difference between the standard of value which may be applied to the same performance, when it forms the basis for measuring the damages of one party or the other.38 If the contract states a rate, at which the goods are to be taken, the natural measure of damages for a breach by the debtor would be based on the value of the goods or services at the time when performance was due.39 Many courts, however, have put an artificial construction on such contracts and have regarded them as amounting in legal effect to a contract to pay in money, with an option to the debtor if he pays promptly at maturity to furnish goods or services.40

35 Roper v. Johnson, L. R. 8 C. P. 167; Rcehm v. Herat, 178 U. S. 1, 20 Sup. Ct 780, 44 L. Ed. 953; Wulff v. Lindsay, 8 Aril. 168, 71 Pac. 963; Gansey v. Orr, 173 Mo. 532, 73 S. W.

477; Windmuller v. Pope, 107 N. Y. 674,14 N. E. 436.

36 Cumminga v. Dudley, 60 Cal. 383, 44 Am. Rep. 68.