Page:Federal Reporter, 1st Series, Volume 10.djvu/808

 796 FEDEBA.L REPORTER. �also that defendants have broken their own contract in Mo ,- but they insist that the plaintiffs are not entitled to recover the full value of the machinery, but only the difference between the coutract priee and market price, leaving the wheel for plaintiffs to dispose of as best they may, and that they are not entitled to recover at ali in this suit. �But whether or not that rule be more properly applicable in cases of stocks or ordinarymerchandise already in existence when the con- tract is made, and which bas some certain market value, it seems quite clear to me that it is not the one which metes out tho most exact justice between the contracting parties in a case of this kind, or which is best sustained by reason or aillhority. �In the first class of cases the authorities are decided ; some holding, as in Thorndike v. Locke, 98 Mass. —, and Pearson v. Mason, 120 Mass. 53, that the vendor of the goods, upon tender made of deltvery and refusai to receive, may leave the goods with the vendee, or with some person for him, and recover the contracit price ; or that lie may keep the goods and recover as damages the difference between the contract price and the market value at the time of the breacli; or that he may resell the goods and charge his vendee with the difference between the selling and contract price ; while other cases, as in Gordon v. Norris, 49 N. H. 376, confine the vendor to the last two remedies named, and deny him the first, on the ground that, the defendant refusing to accept, no title passes and the vendors cannot have the goods and their value. �But where a person orders an article to be manufaetured according to a certain measure, pattern, or style, as a suit of clothes, or a car- nage, or a steam-engine, here, I thiuk, the weight of authority and the best reason eoncur that the manufacturer, after he has completed his contract and tendered the article, is entitled to recover tite con- tract price. �The reason for the distinction is that in such a case there is pre- sumably nd certain market value for goods made according to such a specifie order, and that the manufacturer having doue all that is required of him to do to entitle him to the full benefit of his contract, he cannot, with any certainty, have this full benefit in any other way. If he was required to resell an article of this kind before he could maintain his action, he might be compelled to wait uutil the vendee should become irresponsible, and the article might ha\e no market value, or no appreciable value at all, for any other person ��� �