
    Kipp & Brown v. Wiles.
    Where an executory contract for the sale of merchandise is broken by the failure of the vendor to deliver according to its terms, the measure of damages is the difference between the contract price and the market value of the article at the time stipulated for its delivery.
    The defendant, in October, 1845, made a contract to deliver to the plaintiff a load of oats, “ on or about the first of November next!’ In an action to recover damages for the non-delivery of the oats, held that the measure of damages was the difference between the contract price and the market value of the oats within a reasonable time after the first of November.
    What is a reasonable time, in such a ease, is a question of fact for the jury to deter» mine, taking into consideration all the circumstances of the case.
    It is no answer to an action to recover damages fora breach of a contract for the sale of goods, that the plaintiffs were informed by a person professing to act as the defendant’s attorney, that the defendant did not intend fulfilling the same.
    (Before Dues, Mason, and Campbell, J.J.)
    April 4;
    April 20, 1850.
    This was an action of assumpsit, brought to recover damages for the breach of a contract made by the defendant, for the delivery of a quantity of oats to the plaintiffs in the city of New York.
    The cause came on for trial before the Hon. Jons W. Ei> MOND8, circuit judge, on the 26th day of April, 1847.
    Upon the trial, the contract was read in evidence as follows :
    “ Memorandum or agreement made between John J. Wiles, of Oanajoharie, Montgomery co., of the first part, and Solomon Kipp and Abraham Brown, of the second part:
    “ The party of the first part agrees to deliver in the city of New York, at the foot of Twenty-sixth street, North river, two canal-boat loads of good Northern Jefferson county oafs, of this year’s growth, containing about 7,000 bushels, more or less; one load now on the Erie Canal, and the other load to he delivered on or about the first of November next; for which, the party of the second part agrees to pay the party of the first part forty-one cents per bushel as fast as delivered.
    “ Syracuse, 8th Oct., 1845.
    “ JOHN J. WILES,
    “ By David Wiles.”
    The authority of David Wiles to execute the contract, and the failure of the defendant to deliver any part of the oats, was proved by evidence sufficient presumptively to establish the plaintiff’s case.
    The evidence as to the price of oats during the months of October and November, 1845, was somewhat variant. According to the witnesses, the price between the 1st of November and the 1st of December, ranged from 48 to 52 and 53 cents per bushel. On the 12th of November, the plaintiffs purchased a quantity at 511 to 52 cents. From the 18th October to the 25th, the price ranged from 41 to 43 cents.
    The defendant gave some evidence to show that before November, lie notified the plaintiffs, that he would not fulfil the contract.
    The judge charged the jury, “ that the whole merits of the case depended upon the question whether David Wiles had authority to make the contract referred to, and that if he had, the plaintiffs were entitled to recover ; that as to the amount of damages, if the jury found for the plaintiffs, the rule of damages was not that claimed by the plaintiffs’ counsel, the price which the plaintiffs had to pay for other oats to replace those mentioned in the contract, or the highest price antecedent to the commencement of the suit; but that they were restricted to the price of the oats at the time they were to have been delivered, viz. to allow a reasonable time for the delivery of the first load, and the first day of November for the second.”
    To the latter part of the judge’s charge, the plaintiffs’ counsel excepted, and requested the court to charge that the plaintiffs were entitled to the price oats brought a reasonable time after the 1st of November, 1845, inasmuch as they would have been bound to have accepted a delivery for several days subsequent to the first of November. The judge refused so to charge, and the plaintiffs’ counsel excepted.
    The jury gave a verdict for the plaintiffs, for six cents damages; and the plaintiffs moved for a new trial in this court, to which the cause was transferred.
    
      A. L, Jordan, for the plaintiffs.
    
      J. E. Gary, for the defendant.
   By the Court.

MasoN, J.

This case came up on a bill of exceptions taken by the plaintiffs. The defendant had entered into a written contract to deliver to the plaintiffs two boat loads of oats, containing about seven thousand bushels, more or less, one load represented to be at that time on the Erie canal, and the other load to be delivered about the first of November then next, for which the plaintiffs agreed to pay forty-one cents per bushel as soon as delivered. The defendant failed entirely in the delivery, and the judge charged the jury that the plaintiffs were restricted in their recovery to the price of the oats at the time the two loads were respectively to have been delivered, viz. a reasonable time after the contract for the first load, and the first day of November for the second. To the latter part of this charge, to wit, that the plaintiffs were restricted as to the last load, to the price on the first of November, the plaintiffs’ counsel excepted. They also requested the judge to charge that the plaintiffs were entitled to the price oats brought a reasonable time after the first of November, inasmuch as they would have been bound to have accepted a delivery for several days after that clay. The judge refused so to charge, and the plaintiffs’ counsel excepted.

We are of opinion that the learned judge erred in restricting the jury to the price of the oats on the 1st of November. The words “ on or about” the first of November, in the contract, show that the defendant did not intend to bind himself to a strict compliance on that day. He might have delivered a few days previously, and the plaintiffs would have been forced to take the oats and pay for them. The same obligation would have rested on them, if the oats had been delivered shortly after that day. It must have been a reasonable time after, but to insist on the defendant’s performing on that precise day and no other, when lie had refused to bind himself to that day, would be at variance both with the letter and spirit of the contract.

What would have been a reasonable time was a question for the jury, taking into consideration all the circumstances of the case, (Ellis v. Thompson, 3 Mees. & Wels. 445.) But until that reasonable time liad elapsed, the plaintiffs would have been bound to take the oats if tendered, and they are consequently entitled to recover upon the defendant’s failure to deliver, the difference between the contract price and the market price on the last day they would have been bound to receive them. (Davis v. Shields, 24 Wend. 322.)

It is no answer to say that the plaintiffs were informed by a letter from George Smith, whose authority to act in the matter does not appear, that the defendant did not intend to fulfil, and, therefore, they might have purchased elsewhere, without reference to the contract. The jury, however, have found, that notwithstanding that letter, the defendant was bound to perform. He might therefore, as the plaintiffs had not released him, still have made up his mind to make the deliveries ; and it is by no means certain that the plaintiff's would not have been bound to receive the whole quantity, if tendered on or about the 1st of November.

We cannot, trader this bill of exceptions, inquire into the authority of David Wiles to make this contract for his father. That was a question of fact on which the jury have passed. On a new trial the defendant will of course be at liberty to submit the question anew.

The exception to the charge of the judge was well taken, and a new trial must be granted. Costs to abide the event.  