492 XO SrECIFIED TIME FOR DELIVERY. 



to prevail, it would follow that if there had been a contract for 250 

 bushels, and 249 had been dcl'vered to and retained by the defendant, 

 the vendor could never recover for the 249, because he had not delivered 

 the whole." 



Wierea ivriiten contract for the sate of goods specified no time for detirer- 

 ing them, Lord Etlenboroagh C.J. held in Greaves v. Ashlin (which was 

 an action for non-delivery) that it was not competent for the defendant 

 to give parol evidence that it was a condition of sale that the goods 

 should be taken away immediately, or that by the usage of trade where 

 goods are sold to be delivered at a distant day the time is always men- 

 tioned in the written contract, and that although the purchaser (who 

 had here received a delivery order) neglected after notice to carry them 

 away, the seller had not on that account a right to re-sell them, and the 

 plaintiff had a verdict for the dift'erence per quarter between oats at 

 45.S. 6d., tlie price at which he bought the odts, and 51s. or that for 

 which they were re-sold. And so it was held by the Court of Common 

 Pleas in Peterson v. Agre, that the measure of damages in the case of a 

 breach of contract to deliver goods at a sjmified time, is the difference 

 between the contract price and the market price at the time of the 

 breach of contract, or the price for which the vendee had sold ; but that 

 the latter cannot recover as special damage the loss of anticipated profit 

 to be made by his vendees. This was an action of assumpsit for the 

 breach of a contract of delivery of " from 80 to 120 tons of best oblong 

 fresh-made Flensburg linseed-cakes, at £6 10s. cost and freight to a safe 

 port on the East coast of Great Britain, or £6 13s. to a safe port in the 

 Channel." In consequence of an undue delay in the shipment, which 

 was to have taken place at "the first open water after the end of 

 January," at Flensburg, the plaintiff declined to receive the cakes, and 

 brought this action to recover £27 lOs., the difference between the price 

 at which he had bought and that at which he had sold the 110 tons, and 

 also £137 lO.s. claimed from him as damages by his vendee, but only 

 recovered the former. 



Again in Phitjiofts v. Evans, where a certain mitler (defendant) con- 

 tracted for the purchase of wheat " to be delivered at B as soon as 



vessels could be jjrocured for the carriage thereof; " cmd sulsequently {the 

 market having fatten) gave the seller notice that he iroidd not accept it if it 

 were delivered, the wheat being then in transitu, it was held by the Court 

 of Exchequer, on the authority of Leicjh v. Paterson, in an action for not 

 accepting the wheat, that the proper measure of damages was the differ- 

 ence Ijetween the contract price and tlie market price on the day when 

 the wheat was tendered to him for acceptance at Birmingliam and 

 refused, and not on the day wlieu the notice was received by the seller. 



