Moline Scale Co. v. Beed

Rothrock, J. i contract-measure oí damages. At the time the plaintiff received the telegram countermanding the order no act had been done by th® scales in question were set apart as the property of the defendant. The evidence shows that iqjle sca][es so far as the ir0n WOrk could be done were all perfect.” By this we understand that the plaintiff had on hand the iron work of scales such as are described in the order. The single question to be determined is, had the plaintiff the right to select the iron work of the scales after the order was countermanded, and by shipjfing to Hampton, and offering to build them, maintain an action against the defendant, not for the difference between the contract price and the actual value, but for the amount named in the contract as the price to be paid? The plaintiff must recover, if at all, upon the case made in the pleadings, and recovery is sought upon the theory that by shipping the scales, and offering to build them, the plaintiff is entitled to a judgment for the contract price. We are of the opinion that the action cannot be maintained. It will be observed that the contract was for scales to be “built” by the plaintiff. It is true the plaintiff had on hand the necessary iron work ready to be set up, but this, without more, is not the property named in the order. The iron work was to be shipped and the scales built, that is, the frame and platform [310] were to be constructed, for which defendant was to furnish the lumber. Suppose a person should contract with a manufacturer for a wagon to be built, and agree to furnish the iron, and the manufacturer should have all the necessary wood-work on hand ready to be set up and ironed, and before any thing was done the order should be countermanded, we think the manufacturer could not recover the contract price by setting apart the wood-work and calling upon the other party to furnish the iron. This is exactly parallel with the case at bar. Both are contracts with manufacturers to build, or manufacture, an article not yet completed or built. We have been cited to no adjudicated case, and are unable to find any, where it has been held that a vendor can recover the contract price unless the contract be such as to enable him to put the article sold in such condition as to transfer the title of the property to the vendee. What the law aims to do in case of a breach of contract is to make the parties whole, by awarding damages equal to the injury. In this case if the plaintiff should recover the contract price, it will receive more than compensation for the injury. The full contract price would be recovered for the scales without building them. In Bement v. Smith, 15 Wendell, 493, the plaintiff built a sulky for the defendant according to an agreement, tendered it to him, and on his refusal to accept it deposited it with a third person on his account, giving the defendant notice of the deposit, and brought an action of assumpsit. It was held that the plaintiff was entitled to recover the contract price. That case is essentially different from the case at bar. The plaintiff had done every act to be done by him to the propertjq and it was ready for delivery, and was actually tendered. In the case at bar the plaintiff’s obligation could not be discharged without building the scales. We think that in all the cases where it is held that the contract price may. be recovered it will be found that the article sold was completed and ready for delivery, and a tender made. Gordon v. Norris, 49 N. H. 376; Duston v. McAndrew, 44 N. Y., 72. Upon the other hand there are cases which hold that where there is a refusal by the vendee to perform the contract, [311] bv receiving the property purchased, the measure of damages is limited to the difference between the contract price and the actual value. Moody v. Brown, 34 Maine, 107, and authorities there cited, Allen v. Jarvis, 20 Conn., 38; Garison v. Madigan, 13 Wis., 67. We think, from an examination of the authorities cited by counsel, as well as others that have come under our observation, that the true ruléis that where everything lias been done by the vendor which he is required by his contract to do, and the manufactured property in its completed condition is tendered to the purchaser, and he refuses to receive it, and it is held by the vendor for the purchaser, that the vendor may recover the contract price. The result of the judgment in such cases would be to vest in the purchaser the title to the property. But where, as in the case of manufactured articles, sómething remains to be done by the vendor, which requires the co-operation of the purchaser, and the purchaser refuses to perform, the contract price cannot be recovered. To adopt the contrary rule would allow the vendor to recover for a manufactured article, which is yet incomplete and unfinished, the full price of a finished article, and would be giving him more than his actual damages. We find no case which adopts such a rule. Affirmed.