Louis Windmuller et al., Respondents, v. Thomas J. Pope et al., Appellants

Louis Windmuller et al., Respondents, v. Thomas J. Pope et al., Appellants. (Argued October 24, 1887; decided December 6, 1887.) Where, before the time of delivery fixed by a contract of sale of goods, the vendee notifies the vendor that he. will not receive or pay for the goods, and requests him to stop any further efforts to carry out the contract, the vendor is justified in treating the contract as broken at that time and is entitled to bring an action immediately for the breach without tendering delivery; it is not necessary for him to await the expiration of the time of performance fixed by the contract, nor can the vendee retract his renunciation of the contract, after the vendor has acted upon it, and, by sale of the goods to other parties, changed his position; The ordinary rule of damages in such an action is the difference between the contract price and the market value of the property at the time and place of delivery. This was an action to recover damages for alleged breach of a contract to purchase a quantity of iron. In January, 1880, the parties entered into a contract for the sale by plaintiffs and purchase by defendants of “ about twelve hundred tons old ñon, Vignol rails, for shipment from Europe at sellers’ option, by sail or steam vessels to Rew York, Philadelphia or Baltimore, at any time from May 1 to July 15,1880, at thirty-five dollars per ton, * * * deliverable in vessels at either of the above ports on arrival.” On or about June 12, 1880, defendants notified plaintiffs that they would not receive or pay for the iron, or any part of it, and advised that plaintiffs better stop at once in attempting to carry out the contract. Plaintiffs thereupon sold the iron abroad which they had purchased to carry out the contract. [MAJORITY — Per Curiam] The following is an extract from the opinion: “We think no error is presented upon the record which requires a reversal of the judgment. The defendants having on the 12th of June, 1880, notified the plaintiffs that they would not receive the iron rails or pay for them, and having informed them on the next day that if they brought the iron to Rew York they would do so at their own peril, and advised them that they had better stop at once attempting to carry out the contract, so as to make the loss as small as possible, the plaintiffs were justified in treating the contract as broken by the defendant at that time, and were entitled to bring the action immediately for the breach, without tendering the delivery of the ñon, or awaiting the expiration of the period of performance fixed by the contract; nor could the defendants retract their renunciation of the contract after the plaintiffs had acted upon it and, by a sale of the iron to other parties, changed them position. (Dillon v. Anderson, 43 N. Y. 231; Howard v. Daly, 61 id. 362; Ferris v. Spooner, 102 id. 12; Hochster v. De La Tour, 2 El. & El. 678; Cort v. Ambergate, etc., Railway Co., 17 Ad. & El. 127 ; Crabtree v. Messermoth, 19 Ia. 179 ; Benjamin on Sales, §§ 567, 568.) “ The ordinary rule of damages in an action by a vendor of goods and chattels, for a refusal by the vendee to accept and pay for them, is the difference between the contract-price and the market value of the property at the time and place of delivery. (Dana v. Fiedler, 12 N. Y. 40; Dustan v. McAndrew, 44 id. 72; Cahen v. Platt, 69 id. 348.) ” Carlisle Norwood, Jr., and W. W. Niles, for appellants. Bernard Roelker and Cephas BraJnerd, for respondents. Per Curiam opinion for affirmance. All concur. Judgment affirmed.