Thurman v. Wilson , 1880 Ill. App. LEXIS 223 ( 1880 )

Pillsbury, J.

It appears from the plaintiff’s own testimony before the jury, that there was a market price for the hogs in St. Augustine on the day he tendered the hogs to the appellant; that there were other hog-buyers there, but as the price had fallen in Chicago, they would not give him his price, which was four cents. The plaintiff, however, failed to state or show what that market price was; he was therefore only entitled under the law to recover nominal damages.

The instruction given to the jury at the instance of the plaintiff was erroneous, as the measure of damages for a failure to receive personal property is the difference between the contract price and the fair market value of the property at the time and place of delivery. Phelps v. McGee, 18 Ill. 158; Sanborn v. Benedict, 78 Ill. 309; Foos v. Sabin, 84 Ill. 565.

There is no doubt from the evidence that had the appellee seen proper to take the market price on the day he was to deliver them, he could have sold them, as there was a market • price for them, and if he preferred to keep them to await a rise in the market, he cannot charge the appellant with the costs and expenses of keeping them.

We see nothing in the case that takes it out of the ordinary rule prescribing the measure of damages in cases of this character.

The judgment will be reversed and the cause remanded.

Reversed and remanded.