The right of a vendor to resell, on default of the vendee, thereby fixing the quantum of damages he is entitled to recover as the difference between the contract price and the price realized at the resale, in the absence of express stipulation, is only incident to a contract of sale that has become executed on the part of the vendor and on which he is entitled to demand the contract price. 2d Mechem on Sales, § 1645; Southern States Co. v. Long, 73 So. 148;1 Johnson v. Carden,187 Ala. 142, 65 So. 813; Penn Montgomery v. Smith, 98 Ala. 560,12 So. 818; Id., 104 Ala. 445, 18 So. 38.
If the contract is executory on the part of the vendor and he desires to avail himself of all the remedies incident to an executed contract, he must fully perform the contract, and, if the contract contemplates a tender of the goods, must make such tender. Southern States Co. v. Long, supra; Mechem on Sales, § 1647.
If the vendor does not elect to make complete performance so as to convert the contract into an executed contract, he is left to the option of treating the contract as rescinded or bringing an action for a breach of the executory contract of sale, in which action the measure of damages would be the difference between the agreed price and market price at the time of the breach, with interest, at the place of delivery, or in case the goods are to be specially manufactured and the contract in this respect has not been performed, the difference between the contract price and the cost of production. Crandall-Pettee Co. v. Jebeles Colias Conf. Co., 195 Ala. 152,69 So. 964; Kinney v. Ehrensperger, ante, p. 289,77 So. 439; 2 Mechem on Sales, §§ 1647, 1689, 1690.
The fact of a resale and the price realized thereat is admissible, in an action on the executory contract only, as evidence tending to show the market value of the goods (Gwin v. Hopkinsville Milling Co., 190 Ala. 346, 67 So. 382; 2 Mechem on Sales, § 1649), and of course, if it is shown that the goods were sold at a forced sale "under the hammer" and at a price greatly less than their market value, such evidence would be of little or no probative force.
Under the contract here, if contract there was (and this, under the evidence, was for the jury — Crandall-Pettee Co. v. Jebeles Colias Conf. Co., supra), the obligation rested upon the plaintiff, as a prerequisite to a right to demand the entire contract price, to tender the goods to a common carrier in New York for shipment to the defendant at Birmingham, and there is no pretense that this obligation was performed. Therefore the contract was executory on the part of the plaintiff, and will not sustain an action on the common counts. Jones v. King, 81 Ala. 285, 1 So. 591.
The fifth count of the complaint was subject to the ground of demurrer filed after remandment of the case on former appeal, taking the point that the count failed to state the price agreed to be paid. Newton v. Brook, 134 Ala. 272, 32 So. 722.
The other special counts were not subject to any of the objections pointed out in the demurrers.
The demurrers were properly sustained to the defendant's special pleas. Gwin v. Hopkinsville Milling Co., supra.
While the evidence shows that the plaintiff stated in the letter accepting the order and fixing the terms of sale that the amount of the order would be "about $500.00," and that it was in response to this letter that defendants wired acceptance, there was other evidence tending to show that defendant agreed to pay the catalogue price, with possible discount to be made at the option of the vendor on accepting the order, for goods in stock, and the factory price for *Page 340 those that were to be manufactured; the factory prices not then being shown. It is well settled that if the goods are sufficiently identified, a complete contract of sale may be made without fixing an absolute price. Shealy Finn v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Foley v. Felrath, 98 Ala. 176,13 So. 485, 39 Am. St. Rep. 39. In view of the plaintiff's evidence showing that the reasonable market value of the goods at the time of the alleged breach of the contract was $655.89, the sale price, according to plaintiff's theory, the opinion prevails that the amount of the recovery in this case was excessive.
The court erred in overruling the motion for new trial, and that order is reversed, and one here entered, granting the motion for new trial, setting aside the judgment appealed from, and remanding the case for further proceedings in accordance with this opinion.
Reversed, rendered, and remanded.
1 15 Ala. App. 286.