Page:Federal Reporter, 1st Series, Volume 8.djvu/479

MlSSOUfil FUBNaCE CO. V. COOHBAN. eO5 �It is said in Sedgwick on the Measure of Damages, (7tb Ed.) 658, note b: "Where deliyery is required to be made by instalments, the measure of damages will be estimated by the value at the time each delivery should have been made." In accordance withthis "principle the damages were assessed in Broun v. Muller, Law Eep. 7 Ex. 319, and Roper v. Johnsmi, Law Eep. 8 G. P. 167, which were suits by vendee against vendor for damages for failure to deliver iron, in the one case, and coal, in the other, deliverable in monthly instalments. In one of these cases suit was brought after the coutract period had expired; in the other case before its expiration; but in both cases the vendor had given notice to the plaintiff that he did not intend to fulfil his contract. To the argument, there urged on behalf of the vendor, that upon receiving such notice it is the dutyof the vendee to go intD the market and provide himself with a new forward conix&di, Kelly, C^., m Brownv. Muller, B&ia.: : �"He is not bound to enter into such a contract, which might be to his advantageor detriment, according as the market might f all or rise. If itfell, the defendant might fairly say that the plaintiff had no right to enter into a speculative contract, and insist that he was not called upon to pay a greater difference than would have existed had the plaintiff held his hand." �Where the breach is on the part of the vendee, it seems to be set- tled law that he cannot have the damages assessed as of the date of his notice that he will not accept the goods. Sedgwick on Measure of Damages, 601. The date at which the contract isconsidered tohave been broken by the bayer isthat at which the goods were tohave been delivered, not that at which he may give notice that he intends to break the contract. Benjamin on Sales, § 759. And, indeed, it is a most rational doctrine that a party, whether vendor or vendee, may stand upon his contract and disregard a notice from the other party of any intended repudiation of it. If this were not so, the party de- siriug to be ofif from a contract might choose his own time to dis- charge himself from further liability. �The law as to the eiifect of such notice is clearly and most satisf ac- torily stated by Cockburn, C. J., in Frost v. Knight, Law Kep. 7 Ex, 112. �" The promisse, if he pleases, may treat the notice of intention as inopera- tive, and w'ait the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance ; but in that case he keeps the contract alive for the beneflt of the other party as well as his own ; he remains subject to all his own cWigations and liabilities yinder it, and enables the other party not only to complete the contract, if so v.8,no.7— 30 ��� �