
    James Bridgford, Respondent, v. Lemuel H. Crocker, Survivor, etc., Appellant.
    (Argued February 15, 1875;
    decided February 23, 1875.)
    Upon the failure of a vendee to perform an executory contract for the purchase of chattels, the vendor may elect to tender the property and sue for the contract price, or to retain the property as his own, and recover, as his damages for the breach, the difference between the market value at the time the vendee was to receive delivery, and the contract price.
    If he elect the latter, and the property subsequently rises in value in the market, the vendee cannot avail himself thereof, but the vendor is entitled to the benefit.
    This was an action, among other things, upon a check drawn by defendants’ firm, and transferred to plaintiff by the payee, upon a contract for the sale, by the former, to Gavin & Kelly, of 500 head of cattle. The check was given to Gavin to purchase cattle for defendants. The trial court held, that, under the circumstances, plaintiff could not recover, unless, upon proof, that defendants assented to the use made of the check; and submitted this question to the jury. The court here held, that the evidence was sufficient to warrant such submission.
    Gavin & Kelly received all of the cattle, except 126 head; they paid plaintiff, including the check, more than sufficient to pay for the cattle delivered. Plaintiff claimed damages for the refusal to receive the residue, and the court held they were entitled, as damages, to the difference between the market-value, at the time Gavin was to receive them, and the contract-price. It appeared that plaintiff, after holding them until spring, sold them at an enhanced price. Defendants claimed the benefit of the sale. Held, that the ruling of the court was correct; that plaintiff had the election either to tender the cattle and recover the. contract-price, or to keep the cattle as his own, and recover his damages, to be determined in accordance with the rulings of the court (Dusian v. Andrews, 10 Bosw., 130, questioned); and that it mattered not, and could not be taken into consideration what plaintiff received upon a subsequent sale of the cattle; if the cattle rose in the market, after the failure to perform, the plaintiff, not the defendants, was entitled to the benefit of the enhanced value.
    
      
      Dustan v. McAndrew (10 Bosw., 130) questioned.
    
      
      E. C. Sprague for the appellant.
    
      George Wadsworth for the respondent.
   Grover, J.,

reads for affirmance.

All concur.

Judgment affirmed.  