Calvit v. McFadden

• Decision Date: 01 January 1855
• Citation: 13 Tex. 324
• Parties: BARBARA M. CALVIT v. JAMES MCFADDEN.
• Court: Texas Supreme Court

13 Tex. 324

BARBARA M. CALVIT

v.JAMES MCFADDEN.

Supreme Court of Texas.

1855.

Appeal from Brazoria. This was an action to recover damages for the breach of a contract to deliver cattle. The price had been paid in advance; and the question was as to the measure of damages which the plaintiff was entitled to recover for the refusal to deliver according to contract. The court ruled that the plaintiff was entitled to recover, not only the highest market value of the cattle up to the time of the trial, but also the value of their natural increase, and for improvements made and labor expended in view of his purchase, in procuring a place and building pens for the cattle and cabins for the herders.

J. W. Harris, for appellant.

P. McGreal, for appellee.

WHEELER, J.

There is nothing in this case to take it out of the ordinary rules which regulate the measure of damages for the breach of contracts for the delivery of chattels. The general rule is well settled, that in a suit by the vendee for the breach of the contract to deliver, where no money has been advanced, the measure of damages is the value of the article at the time and place of delivery. But what the rule should be in a case like the present, where the contract has been partially executed by the payment of the price in advance, and whether it should be different from the case where nothing has been paid, and the contract is wholly executory, is, it must be admitted, debatable, owing to the great diversity of opinions and decisions on the question. In England a distinction has generally been maintained between the case where the price of the article has been paid in advance and where it has not; and in the former case it is held that the vendee is not confined to the value of the article on the day when it should have been delivered, but, if he bring his suit within a reasonable time, may recover according to the highest price at any time between the time appointed for delivery and the day of trial. And this was the rule adopted, upon much consideration, by the Supreme Court of New York, in the case of Clark v. Pinny. (7 Cowen R., 681.) But in other States such a distinction has been denied, and the decisions are conflicting. (Sedgw. on Meas. Dam. Ch., 10.) In Randon v. Barton (4 Tex. R., 289) this court recognized the distinction, and adopted the English rule, as enforced by the Supreme Court of New York in the case of Clark v. Pinny; and with the utmost deference for the great name which has been so confidently invoked in opposition to the rule, (2 Kent Com., 480. n. 6th edit.,) we are not convinced that there is reason to depart from it. To the opinion of the learned commentator there is opposed not only the authority of the English decisions and the decisions in his own State, but the equally revered name and authority of Chief Justice Marshall. (3 Wheat. R., 200.)

If it be assumed that the vendee, who has expended his money by paying in advance for his purchase, will not have thereby diminished his ability to go at once into the market and supply himself with the article upon equally advantageous terms, and that he will have sustained no injury by being deprived at once of his money and his bargain, then there may be justice and reason in holding that the measure of his damages should be the same, whether he has paid for the article in advance or not. But if the contrary be the more natural and reasonable supposition--and that it is we think there will be little difference of opinion--we think we may well adhere to the distinction and the rule adopted in Randon v. Barton, and the more especially in a case like the present, where property of the description of that contracted to be delivered is not supposed to be so abundant in the market as that the vendee may, without inconvenience, expense and loss of time, replace his purchase. We think that rule, as applied to a case like the present, is more likely to attain the substantial justice of the case than the rule contended for on behalf of ...