The opinion of the court was delivered by
Aldis, J.The question in this case is, whether, in a suit by the vendee against the vendor, for a breach of the contract in not delivering the property sold, the measure of damages is to be determined by the market value of the property sold at the time when the contract was broken by non-delivery, or by its market value at any subsequent time before trial. This question does not seem to have been settled by any decision in this state. The question can only arise when the property sold has advanced in price between the time of making the contract and the time of delivery, and thereafter.
The general rule is, that where the vendee has not paid for the goods in advance, the difference between the contract price and the market value at the time and place of the promised delivery is the rule of damages. This goes upon the ground that the injured party is thereby made whole; that he can take his money and go into the market and buy the articles which were to have been delivered, at their then market value; and that if he gets as much in damages from the vendor as the increase in price which he is bound to pay on the purchase of the same property, he is thereby secure against loss. To this point the authorities are numerous and generally uniform. A different and more indefinite rule of compensation has been suggested by Prof. Parsons, in his work on contracts, viz: “ that the plaintiff should recover full compensation for the loss *558of all that he might fairly have gained during the whole period of the defendant’s misappropriation, as the defendant should be supposed to have made his wrongful act as profitable to himself as the market at any time permitted, and should be compelled to give over this profit to the plaintiff.” This rule does not seem to coincide with the general language of the authorities. In its practical application it would be both difficult and indefinite. The simplicity of the rule, as usually expressed, and its reasonableness as a standard of equitable compensation, seem to require a strict adherence to it, and forbid the adoption of any new form of phraseology in regard to it.
It is claimed, however, that where the vendee has paid the price down, or in advance, a different rule of damages obtains, and that then it is not the market value at the time of delivery, but the market value at any subsequent time before trial (if the suit is brought in a reasonable time), that determines the measure of damages. There are many authorities that sustain, and perhaps as many that deny this rule. Whether this doctrine is, or is not tenable, we do not deem it necessary to decide, or to examine the numerous authorities on this point. The facts, as reported by the referee, do not bring this case within the operation of the principle. The breach of the contract is fixed by the report, upon the 18th of December, when the plaintiff tendered one hundred and seventy-five dollars to the defendant, and he refused to take it and to deliver the corn. Prior to this time the plaintiff had paid but twenty-five dollars, as earnest money, and this was sent back to the plaintiff’s house on the 16th of December, and left with his wife for him ; and as the report says nothing more about it, we may reasonably infer it was received by the plaintiff. The payment of so small a sum as earnest, and that repaid before a tender of the balance, is not such a payment in advance as would bring this case within the rule as laid down in the authorities. Their language is “ when the vendee has paid the price down, or in advance/’ not paid a part of the price, or earnest money. The reason of the rule would seem to be, in part at least, that the vendor having paid his money to the vendee does not have it in hand to purchase similar goods with, at their market value. But it is not necessary to inquire as to the reasons of the distinction, or whether such distinction stands on *559solid grounds of reason and justice, for this case does not admit of its application.
Applying, therefore, the general rule, that where the vendee has not paid for the property, lie is entitled to recover the difference between the contract price and the market value at the time of the promised delivery, and that only, we think there was error in the judgment of the county court; that there should have been judgment on the report for the plaintiff, for the smaller sum reported. The judgment of the county court is therefore reversed, and judgment for the plaintiff, for the sum of twenty-five dollars with interest from the 18th of December, 1854, and costs.