Tufts v. Grewer
| Decision Date | 11 April 1891 |
| Parties | TUFTS v. GREWER. |
| Court | Maine Supreme Court |
(Official.)
Exceptions from superior court, Cumberland county.
Action of assumpsit for a breach of contract for sale of a soda-fountain.
Clarence Hale, for plaintiff.
Drummond & Drummond, for defendant.
It becomes immaterial whether the writing signed by the parties in this case be considered a contract of sale or a contract to manufacture an article upon the order of the defendant, inasmuch as we feel convinced that the rule of damages would be the same in this state whether it be the one or the other kind of contract.
The defendant ordered a soda-fountain of the plaintiff, which was manufactured and tendered to him, and the price demanded. It is admitted that the plaintiff performed all the requirements of the contract resting on him, and that the defendant without legal excuse failed to perform his part of the obligation, utterly refusing to pay for or accept the property. The action is special, reciting that, although the plaintiff has performed his promise, the defendant refuses to perform his, the plaintiff claiming to recover for the breach the full contract price of the article sold.
The general rule is familiar that for the vendee's failure to receive and pay for the goods he has contracted for the vendor may recover the difference between the market value at the time and place stipulated for delivery and the contract price, together with the expenses of reselling the property. The general rule is not questioned, but the plaintiff contends that a special and more equitable rule governs when a vendor has manufactured the article after a particular pattern upon the order of the vendee, who refuses without excuse to accept the same. The plaintiff says: "I have done all I bargained to do, and now the defendant should be compelled to do what he bargained to do, namely, to pay the contract price."
We feel that there is force in the plaintiff's position, supported as it is by considerable authority; but we are inclined to believe that there should be but one rule of damages in cases where a vendee refuses to accept goods which he has agreed to purchase, whether the article to be delivered to the vendee is already in existence or is to be manufactured on his account. Wherein does the general rule fail to furnish an efficacious remedy? The vendor was to receive in this case money and notes. While the law fully recognizes the obligation of the vendee, and cannot require specific performance, it undertakes to make full reparation by allowing recovery for all the damages sustained. What difference, practically, can there be between a seller receiving the consideration wholly from the vendee or partly from him and the balance from some one else? The law in its own way obtains for the vendor an equivalent for full execution of the contract.
There are courts which have held that, in all cases where a vendee refuses to accept the goods contracted for by him, the vendor may recover the contract price as damages. There is a stronger leaning among judges towards the distinction set up in the present case, in favor of applying such a principle only when the contract calls for an article to be manufactured especially for the vendee. The ground upon which this doctrine is defended by its advocates is that the peculiarly manufactured article is of little value to any one besides the vendee, if of any marketable value whatever. The answer to this position is, of course, that the less the goods are worth to sell in the market the more the plaintiff recovers, and, if they are worth nothing at all, then he recovers the full contract price. But such a result is just as logically attainable under the application of the general as by any special rule. The great ground of objection to the rule invoked by the plaintiff is that, where there has been no acceptance of the property, the title still remains in the vendor, liable to be taken for his debts, or pass to his assignee in bankruptcy or be sold by him to another purchaser A tender does not, in our law, transfer the title to the vendee. The facts show that the plaintiff was to retain title to the fountain until the price should be paid But the defendant refused to make the partial cash payment called for by the terms of sale, or to accept any possession or control of the property, so that even an equitable title to the property did not pass to him.
The rule invoked here has not been much noticed in the English law, but finds its principal support in this country, and still even here it will be found, we think, to be in contradiction of most of the authorities. The first ease in this country sustaining this special rule was Bement v. Smith, 15 Wend. 493. In Dustan v. McAndrew, 44 N. V. 72, although the case called for no such classification, the opinion formulates the law on the point in question in the following manner: (1) The vendor may store or...
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