By the contract between the parties, the plaintiff was bound to deliver, and the defendants were bound to accept and pay for, at least two thousand hides. The plaintiff sent this number, of weights and quality which satisfied the terms of the contract, to the defendants. The defendants refused to accept them on the ground that they were inferior in quality to what the contract called for, and instructed the plaintiff not to send any more. This entitled the plaintiff to recover his damages for breach of the contract by the defendant, and excused him from further performance on his part, if he had not already fully performed the contract. At the trial, no objection was made to the admission of any of the evidence as incompetent, and no suggestion was made of variance between the declaration and the evidence, and the ruling that on these facts the action cannot be maintained was properly refused.
*345The refusal to accept the hides on the ground that they were not of the quality called for by the contract, was not warranted by the facts, and therefore the plaintiff had a right to sell the goods and recover the difference between the contract price and the proceeds of the sale. If he had suffered the hides to remain under the control of the defendants, he might have maintained an action for the price. Nichols v. Morse, 100 Mass. 523. But as the defendants refused to accept them, and he took them away in consequence of that refusal, the defendants cannot maintain the position that the title passed to them by delivery and that the only action against them must be for the price. The facts make the ordinary case of a tender of performance, and a refusal to accept. The proper and only remedy for the plaintiff is by action for the damages sustained, and these are measured by the difference between the contract price and the net proceeds of the subsequent sale.
The payment of the freight by the defendants does not change the relation of the parties to the goods. It was not a part payment of the price, though it would have been credited as such if the defendants had accepted and paid for the goods. It was an advance by the defendants to the plaintiff, for which they could have maintained an action if the plaintiff had failed to perform his part of the contract and had refused to repay the amount.
There is nothing in the correspondence which indicates any purpose of the plaintiff to waive his rights; and his agents took the utmost care to have the correspondence show that the plaintiff removed the hides only in consequence of the refusal of the defendants to accept them under the contract.
The rulings at the trial were correct.
Exceptions overruled.