Page:Federal Reporter, 1st Series, Volume 8.djvu/480

466 FEDERAL REPl^ftTJlB. �^dvlseii, not^ithstanding tns, previous repudiation of it, but aise to take ad- y^ntage of any superveaing circumstances which would justifj him to declino to complete it. On the other hand, the promisee may, if lie tMnks proper, treat the repudiation of the other party as a wrongf ul putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will he entitled to such damages as Would have arisen from the non- performauce of the contract" at the appointed time, subject,"however, to abate- ment in respect of any circumstances which may have aliorded him the means of mitigating his loss." �We do not think the force of the English cases referred to has been at all weakened by that of the Dunkirk Colliery v. Lever, 41 Law Times Eep. (U. S.) 632, so much relied on by the plaiijtiff's counsel. Nor are the faets of that case similar to those of the case in hand. There the controlling fact was that at the time the vendee defini* tively refused to accept, there was no regtdar matket for cannel coal, and the vendors resold as soon as they found a purchaser according to the ordinary course of their business, and withou^t unrpasonable delay. Therefore, it was held that the plaintiffs were entitled tp. the, full amount of the difference between the contract price and that which they obtained, ' ! �Our attention has been called to Maste.rton v. Brooklyn, 7 Hill, 61. Undoubtedly this is a leading case in this braheh of the law,,and especially upon the subject of the profits allowable as damages, ftnd the principles upon which they are tobe ascertained. The suit, how- ever, was upon a contract to procure, manufacture, and deliver mar- ble for a building, and involved an investigation into the constituent elements of the cost to which the contracter might have been sub- jected had the contract been carried out, suchras, the price of ropgh material in the quarry, expensesof dressing, etc. Upon the question as to the time at which the cost of labor and materiels was to be estimated the court was divided, and I do not, find that the views of the majority upon this precise point have been followed. The case, however, laeked the element of market value, (Id. 70 ;) and as Judge Nelson cited with approbation Boormany. Nash; 9 Barn. & G. 145;,' and Leigh v, Paterson, 8 Taunt. 540, it cannot be supposed that the court intended, in a case of a marketable article having a market value, to sanction the principle contended for here. �I see nothing in the present case to distinguish' it from the ordinary case of a breach by the vendor of a forward contract to supply a manufacturer with an a,rticle .necessary to his business. Por stich breach what is the true a:3easuce of damages? Says Kelly, C. B., in Brown v. Muller: "The proper measure of damages is that sum which ��� �