
    Thomas Morris et al. v. Charles W. Barrett et al.
    Motion for leave to file petition in error to the District Court of Lucas county.
    
      Scribner § Kurd, for the motion :
    I. The legal effect of the guaranty was that the pelts sold should be worth the stipulated advance in the Boston market within the period of three month succeeding the sale; consequently, the measure of damages is the difference between the highest price that could have been obtained during that time and the amount provided for in the guaranty. Woodward v. Powers, 105 Mass. 108.
    The refusal of the vendors to consent to a sale at $1.75 per pelt, can not affect their rights ; for otherwise it would be in the power of the purchasers to throw the entire risk upon the vendors by merely asking their consent to a sale at a price offered.
    II. If we are wrong in our first proposition, then the market value at the expiration of three months from the date of the sale must furnish the basis for the measure of damages. Some period must be fixed at which the estimate is to be made. The parties fixed it at the expiration of the three months. This was not modified by the correspondence between the parties, for this took place after the period limited by the parties, and therefore after the law had fixed the measure of the liability.
    
      Kent, Newton &; Pugsley, contra:
    The purchasers, defendants in error, were expressly bound by the contract not to sell at any time within the three months unless they could get the guaranteed price. If they did, the vendors would be released from their guaranty. The highest price, therefore, for which the pelts, could have been sold in Boston, within the three months,, is not an element in determining the measure of damage, unless such highest price amounted to or exceeded the guaranteed price.
    The most the vendors can claim (saying nothing about the correspondence) is that the measure of damage is the difference between the guaranteed price and the highest price that, with reasonable diligence, could have been obtained for the pelts in the Boston market at the expiration of the three months, or as soon thereafter as in the usual course of business they could be sold.
    
      The ease of Woodward v. Powers, 105 Mass. 108, has no application to this case.
    The parties had the power to extend the time of sale-beyond the three months. They did this by the vendors requesting the purchasers to hold the pelts a longer time, and by the purchasers doing so. Can the vendors now be permitted to say that the purchasers should have sold at the expiration of the three months, and that the highest price which could then be obtained for them should be the-basis of the measure of damages ? The law will not presume that the acts and declarations of parties upon which others have acted are meaningless.
    The true measure of damages is the difference between the guaranteed price and the highest price that, with reasonable diligence, could have been obtained, as soon as in the usual course of business a sale could have been made-after the refusal of the vendors to consent to a salé at $1.50.
   By the Court.

On the 29th of January, 1869, the plaintiffs in error sold to the defendants in error 2,844 sheep pelts, at the price of $1.82 per pelt, and guaranteed to the purchasers a profit of ten cents per pelt on resale at Boston. It was also agreed that the prirchasers should hold the pelts-for three months, unless they could realize such profit on. resale within that period. Before the expiration of three months the purchasers were offered the sum of $1.75 per pelt, which offer, through the advice of the vendors, was-refused. At no time within the period of three months-could the cost price be realized in the Boston market.

At the expiration of the period of three months the market price for sheep pelts in Boston was $1.50 per pelt,, and the market was still declining. At that time the purchasers were induced by the vendors to withhold the pelts-from resale for an indefinite time. Afterward, however,, in July following, they resold at $1.25; the same being the full market value at that time.

On the trial in the court below, the defendants (now plaintiffs) requested the court to instruct the jury that the-■measure of damages was the difference between the price paid, plus the profit guaranteed, and the highest market price in Boston during the three months next after the sale. This instruction was refused, and the jury, under the instructions given, assessed the damages at the difference between the price realized on resale and the price paid plus the profit guaranteed.

Held, that there was no error in the refusal of the court •to instruct the jury as requested, or in the rule under which the damages were assessed.

Under such contract the measure of damages, as a general rule, should be the difference between the price paid plus the profit guaranteed, and the market value at the expiration of the three months. But inasmuch as the resale was delayed a reasonable time beyond that period at the request of the vendors and with the expectation of a benefit to them, we think there was no error in assessing ■damages upon the basis of the price realized on resale.

Motion overruled.  