though the giving of such a notice would be proper and might prove of value. The purchaser on re-sale takes good title unless the re-sale is irregular, or unless the right was improperly assumed by the seller, the buyer not being in default.

REMEDIES OF THE PURCHASER.

SECTION 48. DAMAGES FOR NON-DELIVERY.

Where the grounds for specific performance of the contract are absent, the remedy of the buyer for failure to deliver, is by an action at law for the actual damages suffered by the seller's default. The measure of damages, if we presuppose that the buyer has paid nothing on the contract in advance, is the difference between the contract price and the market price, with interest, on the difference in money, from the day that delivery was due.1 But to apply the rule just stated there must be a market value, or it must be possible to compute the amount to which the buyer is actually entitled. When goods have neither a market value, nor actual value, only nominal damages could be recovered.

If the parties had in mind other losses to the vendee, in case of failure on the part of the seller to deliver, and dealt in contemplation of this fact, it would be an added element to be considered in measuring the damages, as an added risk assumed by the seller. But the damage claimed must not be uncertain or remote.2

SECTION 49. DAMAGES FOR BREACH OF WARRANTY.

If the title of the vendor is defective, and the real owner claims the goods, the buyer may recover damages for breach of warranty of title. Here the measure of damages would be for the actual loss sustained."

1 Brackett vs. Edgerton, 14 Minn.,

174.

Penn. vs. Smith, 104 Ala., 445.
Sedgwick on Damages, Sec. 294.

A breach of warranty of title can hardly take place until the purchaser is disturbed by reason of the outstanding title and no suit ordinarily lies until the buyer suffers damages because of the breach."

The breach of warranty may be of a warranty of something other than the title; if so, the buyer may sue for the actual loss he has sustained. If the article delivered was of no value, then the entire amount paid by the purchaser could be recovered. The buyer may recover for breach of warranty even though he has not made payment of purchase. This is true unless the contract by its terms makes payment a condition precedent.

The buyer may recover on a breach of warranty, even though the value of the goods afterward increase in value, so that on a re-sale of the goods, the buyer makes a profit. The buyer is always entitled to any possible profits, as he must also bear the losses of the venture. So, even if on re-sale a profit was made where a warranty in reference to the goods failed, in theory at least, the profit is less than it would have been in case the warranty was not broken.

Where the buyer is sued for the purchase price, he may defend by way of recoupment, by showing the representations of the seller were not fulfilled by which he has sustained an injury.5

SECTION 50. SPECIFIC PERFORMANCE.

A bill for specific performance on a contract to sell, will ordinarily not be entertained by a court of equity. The buyer will be decreed to pursue his remedies at law. Specific performance is usually neither a necessary nor a practicable remedy. The damages allowed the buyer on suit for failure to carry out Underwood vs. Wolf, 131 Ill., 425.

♦ Case vs. Hall., 24 Wend., 102.

the contract, or the other remedies allowed at law, are usually sufficient to give the buyer full and adequate relief. Where however, the thing to be sold is unique, where it has a value distinct and special from the market value, (what is technically called the pretium affectionis), where another thing of the same kind, with this special value, cannot be procured, and where a remedy in damages for a failure to deliver would be uncertain and inadequate,' in such peculiar cases only, a court of equity will sometimes decree specific performance. But specific performance is never to be considered as a substitute or alternative for damages in an action at law.

Contracts for the sale and assignment of a patent, may be specifically enforced. This is on the ground that the rights to be secured under such a contract, are of such a peculiar nature that the relief, by way of a bill for specific performance, could alone afford a full and complete remedy. It is, however, almost impossible to lay down any fixed rules of general application, as relief of this sort depends on the facts and circumstances of the case itself.

• Pusey vs. Pusey, 1 Vern., 273.

Vol. V.-5.

'Brady vs. Yost, 55 Pac. Rep., 542.