(dissenting)—As I read the record in this ciase it discloses an effort on the part of appel*393lant to fix liis own measure of damages which are to be recovered against him for his breach of contract to deliver a carload of flour. "When inquiry was made of him in regard to delivery, the appellant refused to deliver according to the terms of the contract, but notified the respondent that he could have some of the flour contracted for at the price of $12.50 per barrel. The majority opinion fixes the measure of the respondent’s recovery at the difference between the contract price and this $12.50 per barrel. One who has breached his contract to deliver at a certain price cannot limit the recovery against him for such breach by offering, at the time of the breach, to deliver the identical goods contracted for at some other price higher than that stipulated in the contract but less than the market price. He cannot accomplish this even though the rule is enforced against the other party to the contract that he must- do all in his power to minimize his damages. Under that rule he is not compelled to accept from the party who has breached his contract the very goods agreed to be delivered at an increased price. The majority opinion accomplishes this result, but seems to attempt to place it upon the ground that $12.50 was the market price, the appellant being the only representative handling the brand of flour contracted for. The rule is in such cases: if there is in the market a commodity of the same quality as that contracted for, even though of another brand, that the measure of recovery will be the difference between the market price of the commodity contracted for, or commodities of similar quality, and the contract price. Dean v. Van Nostrand, 101 N. Y. 621, 4 N. E. 134. In other words, that it does not lie in the power of the contract violator, by reason of the fact that he is the only one in his community handling the brand of commodity *394mentioned in the contract, to establish the market value of that commodity for the purpose of reducing his liability. The evidence discloses that flour of similar quality was worth $14.70 per barrel in the market at the time the appellant offered to sell at $12.50, which price he testified was the market price on that date. The court properly instructed the jury as to the measure of damages, and the verdict based upon those instructions should not be disturbed; in other words, no premium should be awarded to the appellant for having breached his contract.
I therefore dissent from the conclusion of the majority on this point.
Holcomb and Main, JJ., concur with Mackintosh, J.