dissenting. — I cannot concur in the conclusions of the foregoing opinion. It applies to the fraudulent delivery to the vendee of personal property which is not purchased, the same measure of damages which applies to the failure to deliver property purchased.
To my mind there is no authority for such an application. The rule which is adopted in case of the failure to deliver is, as the majority opinion states, one of compensation for what is supposed to be the real loss. A party contracts for the purchase and delivery of property at less than the market price. The vendor refuses to deliver. The purchaser goes into the market and purchases at the market price, paying more than he contracted to pay. In an action against his vendor he recovers the difference between what he paid and what he agreed to pay, and thus he is, in the eye of the law, fully compensated, placed in the same position that he would have been in if his vendor had complied with his contract. If he made a good bargain he gets the full benefits of it.
In this case the defendant purchased the lumber in the yard, with the trade in the same. His purpose appears to have been to possess himself of plaintiff’s business, and to that end he agrees to take the stock on hand at a price specified. It is, however, expressly understood that plaintiff shall add no more lumber to the yard. It may be that defendant has a contract under which he can fill up the yard at a price much less than he agrees to pay plaintiff, and because of this he exacts from plaintiff an agreement not to add any more lumber. The plaintiff fraudulently introduces a large quantity of lumber into the yard, and has it invoiced to defendant. The majority opinion holds that his measure of damage is not the difference between what he agreed to pay plaintiff, and what he could supply the yard for under his contract, but the difference between what he agreed to pay plaintiff and the market price at the time and place of delivery.
Thus a rule of damage which was intended to, and which does in the class of cases to which it is properly applicable, afford a party the full benefit of his contract is applied to this *139case, in which, it may have the effect of denying to the party those benefits. A bare statement of the facts of this case, it seems to me, shows the utter inapplicability to it of the measure of damages applied to the failure to deliver property sold. To my mind the court gave the proper measure of damage. It is the difference between what defendant paid plaintiff for the excess, and what he could himself have procured it to be placed in the yard for at the time the sale and delivery was completed.
If the evidence did not show that defendant could have procured it at less than the market price, of course the difference between the market price and what he agreed to pay would constitute his measure of damage. If it appeared from the evidence that he had a contract by which he could supply it for much less than the market price at the time of delivery, the rule given by the court allows him the benefits of that contract.
The error of the majority, it seems to me, is in applying to the case in hand a rule of damages intended for a class of cases to which it bears no analogy, and which, when applied to it, produces a result entirely variant from that which the rule was intended to accomplish.
For these reasons I do respectfully, yet most earnestly dissent.