Furlong v. Polleys , 30 Me. 491 ( 1849 )

Shepley, C. J.

— The defendants made with the plaintiff, a contract of purchase of “ ten tons of merchantable meadow hay,” and of a “logging chance,” on township numbered nine, and gave their notes therefor, payable in boards. The suit is upon those notes.

The defendants offered in defence testimony to prove, that the hay was not of a merchantable quality, and that they therefore refused to receive more of it than between three and four-tons, and that they obtained a supply of English hay in the town of Topsfield.

Exceptions are taken to the instructions respecting the measure of damages, which the defendants might recover, to be deducted from the notes.

The damages recoverable are limited to the natural and proximate consequences of the act. If they are not the necessary consequence of it, they can be recovered only when specially set forth in the declaration. 2 Greenl. Ev. §, 254; Dickinson v. Boyle, 17 Pick. 78; Stevens v. Lyford, 7 N. H. 360; Palmer v. York Bank, 18 Maine, 166.

When the law has prescribed a rule for the assessment of damages, that must be applied, instead of the more general rule of indemnity, to determine the rights of the parties. The measure of damages for the neglect or refusal to deliver goods, purchased or agreed for, is determined by law to be the difference between the price paid or agreed to be paid, and the market price of the like goods at the time and place of delivery. Leigh v. Paterson, 8 Taunt. 540; Gainsford v. Carroll, 2 B. & C. 624; Boorman v. Nash, 9 B. & C. 145; Shepherd v. Hampton, 3 Wheat. 200; Day v. Dox, 9 Wend. 129; Davis v. Shields, 24 Wend. 322; Shaw v. Nudd, 8 Pick. 9; Stevens v. Lyford, 7 N. H. 360; Smith v. Berry, 18 Maine, 122.

In the case of Miller v. The Mariner’s Church, 7 Greenl. 51, the contract was made for a supply of stone, wrought in a particular manner, for a particular building, to be delivered, as was contended, at a particular time. If such stone were not supplied, others of that description could not be expected to be found for sale, and the erection of the building might necessarily be delayed.

Should it appear, that goods of a kind like those sold could not be obtained at the time and place of delivery, and that no market price there existed, the party entitled to damages must upon principle, be allowed to ascertain the market price at the nearest and most suitable place, where the goods could have been purchased, and the difference between the market value there at the time, and the price paid, adding the necessary cost of their transportation to the place of delivery, would be the measure of damages. The essence of the rule being to place the party injured in the same situation, by allowing him to supply himself, as he would have been, if the goods had been delivered. Brandt v. Bowlby, 2 B. & Ad. 932.

The jury under the instructions given in this case, must have found that hay could not have been purchased at any place nearer to the place of delivery than Topsfield. But the instructions permitted the jury to take as the measure of damges, what it cost the defendants to procure a supply of hay at Topsfield instead of the market value of the like kind of hay at that place, and the necessary expense of transporting it from there to the place of delivery. They might have paid for the English hay procured, more than the market price for merchantable meadow hay, and might have incurred more expense in the transportation of it than was necessary, and under the instructions may have recovered, what it cost them to procure the hay, which they did obtain, and what it cost them for its transportation. Exceptions sustained, verdict set aside and new trial granted.