vendee may or may not be ready for delivery. This gives rise to three rules for damages. § 198. Contract Executory; Article Incomplete: Here, of course, no title has passed, and, therefore, no action for the price lies, since such an action presumes title in the vendee. The action is for the non-acceptance by the vendee, and may be brought at once, upon notice of the vendee's refusal to accept, or it may be brought after the contract date of delivery. In either case, however, the measure of damages is the actual loss suffered by the vendor, that is, the profits which would have accrued to the vendor had the vendee performed his duty of acceptance. Tufts v. Weinfeld, 88 Wis. 647, 60 N. W. R. 992. Hosmer v. Wilson, 7 Mich. 294. Hinckley v. Steel Co., 121 U. S. 264. Allen v. Jarvis, 20 Conn. 38. $199. Contract Executory; Goods Ready for Delivery: Here again, no title having passed, the action is for non-acceptance. But the goods, although ready for deliv ery, may not, by the terms of the contract, be deliverable. till a future date, and the vendee's refusal to accept may be either before the contract time for delivery, or may be at the time for the performance of the contract. In case refusal is made before the stipulated time for deliv ery, the vendor may sue at once, or he may disregard the notice, and at the time for delivery hold the vendee responsible, thus making the vendee's refusal equivalent to a refusal made then for the first time. The measure of damages is the difference between the market value at the time for delivery (no matter whether the vendor sues at once or waits for time of delivery) and the contract price. If the article was of value to the vendee alone, and, on account of being ordered for some special purpose, of no market value, then the measure of damages is the full contract price. In general, it is for the jury to say what the market value is. Atkinson v. Bell, 8 B. & C. 277. Kountz v. Kirkpatrick, 72 Pa. St. 376. Geiss v. Hardware Co., 37 Kan. 130. Unexcelled Fireworks Co. v. Polites, 130 Pa. St. 536, 18 Atl. R. 1058. Moody v. Brown, 34 Me. 107, 56 Am. Dec. 640. Bridgford v. Crocker, 60 N. Y. 627. $200. Action for the Price: As an exception to the rule just stated in actions for the price in executory contracts, some cases hold that full performance on the vendor's part, including tender of the goods, passes, per se, the right of property to the vendee, especially when the goods have been made for a special order, and, therefore, the measure of damages is the full price. Hayden v. Demets, 25 N. Y. 426. Shawhan v. Van Nest, 25 Ohio St. 490. Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S. W. R. 210. $201. Contract Executed: When the contract is fully executed, and, therefore, the property passed, then, regardless of the fact whether there has been actual delivery or not, the vendor, being ready to deliver if delivery has not been made, and having performed his full duty, has his action for the full contract price. If credit has been given, the action must await the expiration of the term of credit, although insolvency would waive the credit. Doremus v. Howard, 23 N. J. L. 390. Ganson v. Madigan, 13 Wis. 67. Ballentine v. Robinson, 46 Pa. St. 177. Morse v. Sherman, 106 Mass. 430. Frazier v. Simmons, 139 Mass. 531, 2 N. E. R. 112. Indianapolis R. Co. v. Maguire, 62 Ind. 140. Bement v. Smith, 15 Wend. 493. Pardee v. Kanady, 100 N. Y. 121, 2 N. E. R. 885. Wade v. Moffett, 21 Ill. 110. § 202. Vendor's Actions for Fraud: If the goods have been obtained by the vendee through fraud, the vendor may elect to sue in contract or in tort. The action of case is the proper action (in common-law procedure) for any fraud or deceit, when the action is prosecuted independently of the contract. The vendee may also sue in contract (covenant, debt or assumpsit, according to the circumstances), although an action ex contractu is a recognition, or affirmance, of the sale. The student should remember that in actions based upon fraud there is a difference in the character of actions at law and suits in equity to rescind a contract for misrepresentation. In the law action there must be an allegation of intentional deception, the scienter must be alleged; while in suits in equity the misrepresentation of a material fact is the essential thing, regardless whether it was made wilfully or through honest mistake. Upton v. Vail, 6 Johns. 181. § 203. Apart from the actions based upon the allegations of fraud, the vendor may, of course, where fraud was used, rescind the contract, and sue in trover, or may, if he desires, recover, generally, his goods by replevin. Bacon v. Davis, 30 Mich. 157. Aber v. Bratton, 60 Mich. 357, 27 N. W. R. 564. B. THE VENDEE'S REMEDIES. § 204. There are various remedies to which the vendee may resort, upon the breach of the contract by the vendor, depending upon the character of the contract, the nature of the breach, and upon the possession of the |