(n) Younger v Givens, 6 Dana, 1.

(o) Blydenburgh v. Welsh, 1 Baldw. 331, 340. Per Hopkinsm, J.: " It is the price-the market price - of the article, that is to famish the measure of damages. Now what is the price of a thing, particularly the market price ? We consider it to be the value, - the rate at which the thing is sold. To make a market, there most be buying and selling, purchase and sale, if the owner of an article holds it at a price which nobody will give for it, can that be said to be its market value ? Men sometimes put fantastical prices upon their property. For reasons personal and peculiar, they rate it much above what any one would give for it. Is that its value? Further, the holders of an article, as flour, for instance, under a false rumor, which, if true, would augment its value, may suspend their sales and put a price upon it, not according to its value in the actual state of the market, or the actual circumstances which affect the market, but according to what, in their opinion, will be its market price or value, provided the rumor shall prove to be true. In such a case, it is clear that the asking price is not the worth of the thing on the given day, but what it is supposed it will be worth on a future day, if the contingency shall happen which is to give it this additional value. To take such a price as a rule of damages is to make a defendant pay what never in truth was the value of the article, and to give the plaintiff a profit, by a breach of the contract, which he never could have made by its performance." See Smith v. Griffith, 3 Hill, 333; Younger v. Givens, 6 Dana, 1. Evidence of value at places in the vicinity of the place of delivery, may be admitted to show the value at that place. But where the evidence is clear and explicit as to the value at that place, such value must control, no matter what the value is at other places. Gregory v. McDowel, 8 Wend. 435.

1 This rule applies although the article contracted for is patented, and the right to sell held exclusively by the party contracting for its manufacture. Frink v. Tatman, 36 Ind. 259. - K.

received a part of the goods, he cannot retain them and have damages on the non-delivery of the whole; nor can he require the delivery of the residue, after he has ascertained their quality, and then have his claim for damages for their inferiority, (p)l

If the vendee sues the vendor because he has not been able to make a good title under his contract, it is said that he may recover for the expense of investigating the title, but not damages for the loss of the bargain, or his endeavors to substitute a new one. (q)

(p) Shields v. Pettee, 2 Sandf. 262. The defendants purchased of the plaintiffs one hundred and fifty tons of pig iron, No. 1, to arrive in the ship bio-dons. The iron which arrived was not of that quality, and for that reason the defendants, after receiving a part, refused to receive the remainder, or pay the contract price for the part already received. In the mean time the market price had risen, so that iron of the qual-ty delivered was worth two or three dollars per ton more than the contract price. This action was brought for the value of the iron delivered. Oakley, C. J., said: "Assuming the contract to be obligatory, the defendants, on finding the iron they were receiving was not No. 1, were at liberty to continue to receive it as a fulfilment of their purchase, or they could have repudiated the delivery and brought their action for damages. But they could not do both. They had no right to receive a part of the goods, retain such part, and refuse to receive the residue. Accordingly it was held, that the defendants could not recoup damages for the non-fulfilment of the contract by the plaintiffs, but that they were bound to pay the market price of the iron delivered. (q) Pounsett v Fuller, 17 C. B. 660.

1 A buyer cannot return the goods if he keeps them an unreasonable time for trial, consumed more than is necessary, or exercised acts of ownership over them, Don-nee v. Dow, 64 N. Y. 411; but may still resort to a cross action or defend for reduction of price, Gurney v. Atlantic R. Co., 58 N. Y. 358; Atkins v. Cobb, 56 Ga. 86; Defen-baugh u. Weaver, 87 111. 132; Ferguson v. Hosier, 58 Ind. 438. Where the property has passed to a buyer unconditionally, he cannot rescind in the absence of an express agreement, but must pay the price even if he reject the goods, Hinchcliffe r. Bar-wick, 5 Ex. D. 177; the right to return being limited to fraud or express agreement between the parties, Day v. Pool, 52 N. Y. 416, 419; Freyman i\ Knecht, 78 Pa. 141; Matteson v. Holt, 45 Vt. 336; Kimball Manuf. Co. u. Vroman, 35 Mich 310; Cable o. Kliis, 86 III. 525; Marsh v. Low, 55 Ind. 271. That the buyer may rescind and return the goods for every breach of warranty, express or implied, see Rogers r. Hanson, 35 la. 233; Sparling v Marks, 86 111. 125. where goods are to be delivered in instalments, refusal to accept or deliver any particular parcel gives no right to rescind the whole contract, but only to damages for partial breach. Simpson v. Crippin, L. R. 8 Q. B. 14. See Brandt v. Lawrence, 1 Q. B. D. 344. Where a contract is for the delivery of goods in equal proportions in a given number of months, and the action for non-delivery is not brought until after the expiration of the period stipulated for the last delivery, the proper measure of damages is the sum of the differences between the contract and market prices on the last day of each month respectively. Brown v. Miller, L. R. 7 Ex. 319; and the same is true" where the action is brought before that time, in the absence of evidence on the part of the defendant that the plaintiff could have obtained a new contract on such terms as to mitigate his loss, Roper v. Johnson, L. R. 8 C P. 167. Where there is no market into which the buyer can go and replace goods not delivered, and the buyer resells, he is entitled to lost profits on the resale, and expense for freight and insurance. Borries v. Hutchinson, 18 C. B. w s. 445; McHose v. Fnlmer, 72 Pa. 365. In an action for not delivering cotton cloth of a certain description, where there was no market in which it could be obtained, the measure of damages was held to be the difference between the price of other cloth nearest in Quality and somewhat dearer and the contract price. Hinde ». Liddell, L R. 10 Q. B. 265. In an action for not delivering castings made to order from plans furnished and which could not be bought ready-made, it was held that the jury were Justified in finding as damages an amount equal to a penalty which the plaintiff was obliged to pay to a third person for such delay in delivery. Elbinirer Co. v. Armstrong, L R. 9 Q. B. 473. - K.