
    Davenport v. Wells.
    In an action on a due bill, payable in flour, on a given day, tbe measure of damages, is the value of the flour on the day when payment should have been made.
    
      Appeal from the Warren District Court.
    
    This case originated before a justice of tbe peace, and was taken to tbe District Court by appeal. Suit was brought on a due bill, payable in flour on tbe day of the date thereof. On tbe day of tbe date of tbe due bill, tbe flour was demanded, and a part was paid, and tbe then full price of tbe residue, was tendered by tbe defendant. Between that time and "tbe time of tbe commencement of this suit, flour rose in tbe market. Tbe defendant plead tbe tender, and brought the money into court. The court allowed tbe plaintiff tbe benefit of tbe rise in tbe market, and gave judgment accordingly. To reverse which, this appeal is prosecuted.
    
      W. Penn. Clarice, for tbe appellant,
    cited Irvine v. Lumberman’s .BanJc, 2 Watts & Serg. 190; Lyle v. Lyle, 1 Harr. &J. 273; Robinson v. Noble’s Admrs., 8 Peters, 181; Pinney v. Gleason, 5 Wend. 394; Hdgar v. Lois, 11 Serg. & R. 445; Smith v. Smith, 2 Johns. 235 ; Brooks v. Hubbard, 3 Conn. 58; Smith v. Dunlap, 12 Ill. 184; Shepherd v. Hampton, 3 Wheat. 200; Smith v. Berry, 18 Maine, 122; Smethust v. Woolston, 5 Watts & S. 106 ; 2 Kent’s Com. 480, notes.
    
      Burns & Sheffield, for tbe appellee,
    cited no authorities,
   Isbell, J.

No question is made here, as to the 'tender not having been kept good. Tbe only question is, was it sufficient in amount ? The price of tbe flour on the day it was due, was tbe just measure of tbe damage for failing to deliver it at that time. If suit bad been then brought, that price would bave been tbe amount of recovery. It was then tendered. Tbe plaintiff could bave taken tbe money, and gone into tbe market and procured tbe flour, if so disposed. His refusing tbe full satisfaction then offered, cannot aid him. Sucb contracts are entered into under tbe tacit understanding, implied from tbe law, tbat if tbe commodity is not fortbcoming, its worth in money, shall answer the contract. • No other rule could well be adopted, while money is made the measure of value. If any special circumstances exist that should vary this general rule, they should be specially counted upon. None such appear in this case. Douglass & Mandeville v. McAllister, 3 Cranch, 298; S. C., 1 Cond. Rep. 337. And see authorities cited by appellant.

Judgment reversed.  