The construction of the contract adopted at the Circuit is correct. The defendant agreed to deliver his then growing crop of corn, at a future day, in good merchantable order. The term “ good merchantable order,” as thus used, necessarily implies that the corn was to be of merchantable quality. In other words, the parties expressly bargained for a merchantable commodity. (See Reed v. Randall, 29 N. Y. 358.)
But -if, as the defendant insisted in the court below, the terms used related merely to the condition of the corn, and *47did not include its quality, then this implies an agreement that the corn bargained for should be of merchantable quality, as the contract was what is called executory. A contract of that nature always carries an obligation on the part of the vendor that the article to be delivered shall be, at least, sale-able; at least of medium quality or goodness. (23 Wend. 350.) Such implication is not repelled or limited, in the present case, by the express stipulation that the corn should. be in merchantable order, if, as is now assumed, that stipulation be held not to apply to the quality of the corn.
The single load of corn offered by the defendant was unmerchantable, and the plaintiff’s assignors had a right to decline to receive it, as they did, on that ground. As the defendant subsequently declined to deliver the corn, because that load was not received, he was chargeable with a breach of the contract. .
The measure of damages for such breach was the difference between the market value of the corn, at the time and place specified for its delivery, and the contract price, together with the sum paid by the purchaser, and interest thereon. That measure being applied, the evidence authorizes a' recovery to the amount of the verdict.
The judgment should be affirmed.
Judgment affirmed.