By the Court,
Paine, J..This case has once been before this court, and a judgment recovered by the defendant was reversed because the court below had instructed the jury that the plaintiffs could not recover without showing that one of the machines delivered to Dousman & Oo. had been designated and set apart for the defendant, and marked with his name. Another trial was had, on which the plaintiffs recovered a judgment, and the defendant has appealed. While conceding that the former judgment was properly reversed, for the reason that the circuit court went too far in saying that the machine must actually be marked with the defendant’s name, his counsel now insist that it was essential for the plaintiffs to show that one of the machines had been so set apart for the defendant, as to vest the title in him. We are satisfied that this would be necessary, before the plaintiffs could recover as for goods sold and delivered, but are still of the opinion that it is not necessary in order to maintain their action on the contract for the refusal of the defendant to perform it. The distinction between these two causes of action is well established, and the rule of damages in the one is very different from that in the other. Where the vendor has actually taken all the steps necessary to vest the title to the goods sold in the vendee, he may sue for goods sold and delivered, and the rule of damages would be the contract price. But where he is ready and willing to perform, and offers to do so, but the vendee refuses, even though the title is not vested in the vendee, the vendor still has his action on the contract for damages. But the rule of damages in such case would be the actual injury sustained, which is ordinarily the difference between the value of the property at the time of the refusal, and the price agreed on. Ohitty on Con., 384; 1 Chitty’s Pl., 347; 2 Parsons on Con., 484, note h; Thompson vs. Alger, 12 Met., 428; Allen vs. Jarvis, 20 Conn., 38; Girard vs. Taggart, 5 S. & R., 19. *73When tbe case was formerly bere, no question was made as to tbe rule of damages. Tbe only question was, tbe plaintiffs could recover at all without showing that one of tbe machines was set apart for tbe defendant. We thought then that they could, and we still think that conclusion was correct, and the authorities cited by the appellant only go to show that the rule of damages, instead of being the contract price, might be the actual inj ury sustained by the vendors, if any.
It seems to have been assumed on both sides, that if the plaintiffs recovered at all, they must recover the contract price, as for goods sold and delivered. If this were so, we should agree with the appellant, that it would then be necessary for the plaintiffs to have shown one of the machines to have been so designated for the defendant, as to vest the title in him, and the jury should have been so instructed at his request. But the complaint is framed upon the contract. It avers the making of the contract, and the compliance with it on the part of the plaintiffs, by delivering the machine to Dousman & Co., and then avers that the defendant refused to pay or to perform the contract on his part. This seems clearly sufficient to enable the plaintiffs to maintain their action for damages for his refusal to perform. The court, therefore, properly refused the instructions asked by the appellant, which went to exclude the right of action altogether, unless the title to some particular machine had actually vested in the defendant. We could not, therefore, reverse the judgment for this refusal, even though satisfied that the defendant might have been entitled, if he had asked it, to an instruction upon the rule of damages, which would have materially changed the result.
But we think the judgment must be reversed for another reason. The court below instructed the jury at the request of the plaintiffs’ counsel, that the defendant must first try the reaper with a team in the harvest field, before he could set up the defense that it would require more than a span of horses to make it perform according to the warranty. This instruction was undoubtedly based upon the last part of the defendant’s order for the machine. He there says that “ if *74TPon a ma(^e next harvest,” tbe reaper could perform as required, be would redeliver it to tbe plain-on refunding tbe $50 be was to pay on its delivery; an(j if it could perform as required, be would execute tbe note for tbe remaining $110. Tbe court seems to have regarded this as amounting to a contract that tbe reaper should be tested in that way, and precluding tbe defendant from showing by any other proof, that it was not such a machine as he had ordered. But we think it ought not to be so construed. It seems to be rather the reservation of the right by tbe defendant to return the machine, after he had once received it as complying with his order, if upon trial he found it did not work as required. But the reservation of such a right ought not to compel him to receive it at all events in the first instance, and pay the $50, even though he could show that it was not such a machine as he had ordered. Suppose it to be established that the “ team” mentioned in the order meant a single span of horses. If then the plaintiffs had furnished a reaper which a Single span could scarcely draw at all, would the defendant have been bound to receive it and make tbe first payment, and draw it home and try it in the harvest field ? It seems clear that he would not, and that he would only be compelled to resort to the trial provided for, incase he could not otherwise show the reaper not to be such an one as he had called for.
We think also that the court erred in excluding the testimony of Lockwood as to the power and capacity of his machine. It is true that ordinarily, where the question is as to the power of one machine, evidence as to the power of another would be inadmissible. But the circumstances of this case are peculiar. It will be remembered that the plaintiffs never specified any particular reaper for the defendant, but delivered a large number to Dousman & Co., one of which was designed for him. And when he came he was told he might take any one he chose. We held this to be a substantial compliance with the contract on the part of the plaintiffs, for the very reason that their witness testified that the reapers were all precisely alike, and manufactured from the same patterns. Now, when the plaintiffs rely on that evi*75dence to show performance on tbeir part, it would seem to follow tbat tbe defendant might sbow tbat any of them not such an one as be bad ordered. And it appeared tbat tbe one which Lockwood was asked to testify about, was one of tbe same lot at Dousman & Co.’s witb tbe one sent for tbe defendant. If therefore be could show tbat Lockwood’s was not such an one as be bad ordered, tbat would tend to show tbat none of them were, for tbe plaintiffs bad shown tbat they were all alike. It would seem therefore tbat tbe evidence, upon tbe peculiar facts of this case, should have been admitted.
Witb these exceptions tbe rulings of tbe court below were correct. But for these errors thejudgmentmustbe reversed, jvith costs, and a new trial ordered.