On Rehearing.
SOMMERVILLE, J.The case is stated in the former opinion of the court, wherein the cause was ordered remanded for further proceedings.
We have considered with great care the argument submitted to us on the rehearing in this case without being able to change the conclusions first adopted, except to the extent of recalling the portion of the decree which sets aside the judgment appealed from, and remands the ease for further trial.
In the ease of Arrowsmith v. Gordon, 3 La. Ann. 110, on rehearing, Mr. Justice Rost, in disposing of the rule to be adopted in measuring damages in a similar case, says:
“If, as alleged, the rule of damages for the breach of the contract by the defendants is to be that applicable to actions of trover, so far as the conversion of the cotton is concerned, we take that rule to have been correctly stated in the opinion of the court. We deduce it from the English and the American cases within our reach, and we find it stated in nearly the same words by Mr. Sedgwick, in his late valuable work on the Measure of Damages: ‘Unless the-plaintiff has been deprived of some particular-use of his property, of which the other party was apprised, and which he may be said to have thus directly prevented, the rights of the-parties are fixed at the time of the illegal act,, be it refusal to deliver, or actual conversion, and the damages should be estimated as at that time.’ Sedgwick, p. 505. This is in fact the fundamental principle applicable to all breaches-of contract that as a general rule the market value at the time of the breach is the rule of damages.”
In the same case Mr. Chief Justice Eustis-says at page 108 of 3 La. Ann.:
“The cotton was sold by the defendant’s agent from the 13th to the 16th of December. The advance of price between that time was very gradual until the. 10th of March following, when there was an advance of a farthing per-pound, which the cotton, had it been retained,, would have produced. The suit was brought on the 13th of March, and it is contended that by the law of England where the contract was. broken the plaintiff is entitled to recover the increased value of the cotton at any time previous to the institution of the suit by way of damages. We have examined the authorities on which the plaintiff relies, and we do not think they establish that the rule is invariable. [2] The true measure of damages in cases of breach of contract is that which will indemnify the party injured. In this case no evidence was offered to show that the plaintiff intended this shipment of cotton for any particular purpose, which was defeated by the acts of the defendants, nor that any unusual circumstance attended its origin or destination. It was to be consigned to Hoskins, and he was to have the benefit of profits of the consignment. It was-intended to be sold in Liverpool, and the proceeds applied to bills drawn upon it. No loss-has been shown in consequence of the time at which the sale was made, as compared with prices a reasonable time afterwards, and we think it would not be just that the plaintiff' should have the option of fixing on the defendant the price of the cotton in the month of' March following. We do not think any fail-rule of indemnity applied to the ordinary transactions of the cotton trader would authorize-this, or that any court in England could sanction such a test.”
The Arrowsmith Case settles the rule for-measuring damages in this state, and it has been cited in several cases. See, also, Draining Co. v. De Lizardi, 2 La. Ann. 281; Badillo v. Tio, 7 La. Ann. 487; Nimmo v. Allen, 2 La. Ann. 452; Chamberlain v. Morrel, 38 La. Ann. 348.
[3] Mr. Sutherland in his work on Dam*293ages (3d Ed.) § 1119, after discussing the doctrine and the changes by the courts of various states, says:
“That whether the' action be on contract or in tort the proper measure, except where punitive damages are allowed, is a just indemnity to' the party injured for the loss which is the natural, reasonable, and proximate result of the wrongful act complained of, and which a proper degree of prudence on the part of the person complaining would not have averted. [4] And the court (of New York) reached the conclusion that a fixed, unqualified rule giving the plaintiff in all cases of conversion the highest market price from the time thereof to the time of trial cannot be applied upon any sound principle of reason or justice. The case was against a broker who had purchased stock for a customer, the plaintiff, not as an investment, but upon speculation; the latter furnishing a small amount as a margin and the former supplying the residue of the capital embarked in the speculation. The broker made an unauthorized sale of the stock; and it was held that, if upon being advised of the sale the customer desired further to prosecute the adventure, he had a right to disaffirm the sale and to require the broker to replace the stock; and upon his failure or refusal to do this that the remedy of the principal was to replace it himself, and that the advance in the market price from the time of the sale up to a reasonable time to replace it after notice of the sale would afford a complete indemnity, and was the proper measure of damages. The case of Markham v. Jaudon, 41 N. Y. 235, so far as it relates to the rule of damages, was overruled. Later decisions have approved and followed Baker v. Drake [53 N. Y. 211. 13 Am. Rep. 507].”
Plaintiff does not here charge wrongful conversion on the part of defendant, yet the authorities quoted show that the same rule applies to the violation of contracts, quasi contracts, and quasi offenses as to conversion. Certainly no greater damages could flow from the violation of contract, where special damages are not shown or punitive damages are not allowed, than flow from a wrongful conversion.
We think the court a qua erred in allowing defendant commissions on the unauthorized sale of the cotton. Arrowsmith v. Gordon, 3 La. Ann. 109. The judgment will have to be corrected to that extent.
The judgment appealed from is amended by reducing the amount or by changing the figures, $1,243.94 allowed on the reconventional demand to $1,061; and, as thus amended, the judgment is affirmed.
LAND, J., concurs. PRO YO STY, J., dissents in part.