concurring.
I fully concur in the opinion of Judge Albert heretofore filed in this case. The facts are sufficiently set forth in his opinion. It is earnestly insisted by the plaintiff in error that because the Nye & Schneider Company finally succeeded in disposing of its corn at an advance over the offer made by the proposed purchaser it was not damaged by the failure of the defendant in error to transmit and deliver the message accepting the offer. On the contrary it is said that the Nye & Schneider Company profited by the neglect of the plaintiff in error and was benefited thereby. It has also been suggested that, before defendant in error could recover, it should have disposed of the corn on the market at the best price which could be obtained and that, until such sale ivas made, no cause of action accrued to it.
I am not disposed to accept these views. Had the message accepting the offer been promptly delivered, a sale of the corn at a price one and one-half cents above the market value would have been consummated on the evening of June 13, 1901. A failure to deliver the message prevented the sale, and the consequence was that the defendant in error had on hand 5,000 bushels of corn, which would otherwise have been disposed of at a profit of $75 *258above the market price at that date. It is clear, therefore, that on the evening of July 13 it had been damaged to the extent of $75. A right of action accrued to it immediately for this amount. We know of no principle which would deprive it of this right of action, or which would give the plaintiff' in error the benefit of a rise in the corn market, or allow such advance to be shown in mitigation of damages. The rule is aptly stated in 1 Sutherland, Damages (3d ed.), sec. 158, where it is said:
“There can be no abatement of damages on the principle of partial compensation received for the injury where it conies from a collateral source, wholly independent of the defendant, and is as to him res inter alios acta
There appears to be a dearth of authorities on the exact question involved but, in my opinion, the same principle and the same measure of damage should be applied that obtains in the case of a purchaser of personal property who refuses to accept the goods purchased, at the time fixed for the delivery. In such case, the authorities all agree that a right of action for damages arises in favor of the vendor for the injury or loss he has sustained by reason of the breach of the contract, and this is ordinarily or generally the difference between the market value of the property at the time and place of delivery, and the price fixed by the contract. Funke v. Allen, 54 Neb. 407; Lincoln Shoe Mfg. Co. v. Sheldon, 44 Neb. 279.
It is true that the vendor, on refusal of the vendee to accept, has a right, if he so elects, to resell the goods, but this seems to be a method only of ascertaining their market value and the. extent of the damages. Sutherland, in his work (sec. 647), has given the rule established by the decided cases, as follows:
“An executory agreement which requires a subsequent acceptance of the property by the buyer, to consummate the sale does not become a complete bargain and sale so as to vest the title in liim, if he refuses to accept it. In such case the vendor is entitled to recover damages only to the extent of his actual injury from the failure of the vendee *259to fulfill his contract, which is ordinarily the difference between the contract price and the market value, at the lime and place of the breach, Avith interest. * * * This may be ascertained and fixed by a resale Avithin a reasonable time, and after notice to the vendee of the vendor’s intention to resell, taking all.proper measures to secure as fair and favorable a sale as possible. * * * The resale is made on the theory (which is a mere legal fiction) that the property is that of the vendee retained by the vendor as a means of realizing, the contract price; he acts as the agent of the vendee, and deducts from the proceeds all the expenses incurred. * * * After notice of the vendor’s intention to resell, no notice of the time and place of the resale is required to be given, but it must be made according to the usage of trade. * * * If thé net proceeds of the sale are less than the contract price, he may recover the deficiency in an action on the contract.”
Benjamin, Sales (4th ed.), sec. 758, says:
“When the vendor has not transferred to the buyer the property in the goods Avhich are the subject of the contract * * * as where the agreement is for the sale of goods not specific, or of specific goods AA-hich are not in a deliverable state, or Avhich are to be weighed or measured before delivery — the breach by the buyer of his promise to accept and pay can only affect the vendor by Avay of damages. The goods are still his. He may resell or not, at his pleasure. But his only action against the buyer is- for damages for non-acceptance; he can in general only reeoAer the damage that he has sustained, not the full price of the goods. The laAV, Avith the reason for it, Avas thus stated by Tindal, C. J., in delivering the opinion of the exchequer chamber in Barrow v. Arnaud, 8 A. & E., n. s. (Eng.) *595: ‘Where a contract to deliver goods at a certain price is broken, the proper measure of damages in general is the difference between the contract price and the market price of such goods at the time Avken the contract is broken, because the purchaser, having the money in his hands, may go into the market and buy. So, if a contract *260to accept and pay for goods is broken, tbe same rule may be properly applied; for tbe seller may take his goods into tbe market and obtain tbe current price for them.’ ”
It is conceded that, by keeping the corn, defendant in error kept it at its own risk. In other words, bad tbe price of corn gone down in tbe market, tbe Nye & Schneider Company would have bad to bear tbe loss, whatever it might be, and could recover from tbe plaintiff in error only tbe difference between tbe price offered and the fair market value of tbe corn, giving it a reasonable time within which to dispose of the same. The corn being-kept at defendant’s own risk entitles it, certainly, to any advance in tbe price while so held. Tbe plaintiff in error can not claim tbe benefit arising solely from a risk assumed by defendant in error and for which plaintiff in error could in no wise, and under no circumstances, be made liable. This principle is fairly established in Bridgford v. Crocker, 60 N. Y. 627, where it is said:
“Upon tbe failure of a vendee to perform an executory contract for tbe purchase of chattels, tbe vendor may elect to tender the property and sue for tbe contract price, or to retain the property as bis own, and recover, as his damages for tbe breach, tbe difference between tbe market value at tbe time tbe vendee was to- receive delivery, and tbe contract price. If be elect tbe latter," and tbe property subsequently rises in value in tbe market, tbe vendee can not avail himself thereof, but tbe vendor is entitled to tbe benefit.”
A sale of tbe corn at an advance over tbe market price was lost through tbe negligence of tbe plaintiff in error. Had tbe defendant in error, on learning of this neglect, offered tbe corn on tbe market and sold it for tbe market price, no one disputes the liability of plaintiff in error for tbe difference between the price so obtained and the offer made by tbe proposed purchaser; but, because tbe defendant in error exercised its right to bold tbe corn at its own risk, the telegraph company claims tbe benefit of tbe advance in value which finally obtained; in other *261words, it seeks to take advantage of a venture in which it took no part and of which it assumed no risk; the benefit of a hazard from which it could not be injured. The risk was that of the defendant in error and the advantage arising therefrom belongs to it alone.