dissenting.
I do not concur in the majority opinion. The plaintiff alleges that he is a manufacturer of, and a wholesale dealer in, flour and meal, and that the contract sued on is in writing. A copy of this document is attached to and made a part of the petition, and is a simple order to the plaintiff to ship to the defendant specified quantities of certain brands of flour and meal, for which the defendant agrees to pay a definite price. The contract, if contract it be, is not signed by the plaintiff, nor is there any allegation in the petition that he accepted the order. The order is not for the manufacture of goods, but is a mere memorandum of purchase. There is no matter of inducement pleaded in the petition to take the case out of the ordinary *783agreement to buy. It affirmatively appears that the order was countermanded before the day for delivery, and before any of the flour or meal was sldpped, delivered or tendered. There is no allegation in the petition that the plaintiff could not sell the flour and meal on the market, that to do so would subject him to any extra expense, that his market was so limited that the defendant’s countermand decreased the plaintiff’s sales, or that the goods were worth less on the market than the defendant agreed to pay therefor. Under these circumstances the rule that the seller may recover profits lost because the buyer countermanded an executory contract of sale does not apply. In the event that the buyer thus countermands an order for the purchase of goods recognized as staple in the market, prima facie the measure of damages is the difference between the market value of, and the contract price for, the goods at the time of delivery. This rule has been recognized for many years by this court. Dodge v. Kiene, 28 Neb. 216; Lincoln Shoe Mfg. Co. v. Sheldon, 44 Neb. 279; Funke v. Allen, 54 Neb. 407; Allen v. Rushforth, 77 Neb. 840. The United States supreme court, the courts of last resort in 26 sister states, in England and in Canada so hold. The citations may be found in 35 Cyc. 592 et seq. See, also, 2 Mechem, Sales, sec. 1690; Huguenot Mills v. Jempson & Co., 68 S. Car. 363, 102 Am. St. Rep. 673.
It is unnecessary to extend this dissent by a review of the authorities cited in the majority opinion. Not one case refers to a contract for the sale of a staple of commerce — goods that prima facie have a market value in every civilized community during any season of the year.
Plaintiff has pleaded no fact to take his case out of the general rule, and the judgment of the district court should be affirmed.
Letton and Rose, JJ., concur in dissent.