JOHNSON, Judge,
delivered the opinion of the Court:
The first assignment of error is, that, the court Avas not justified by the case made in granting any relief to the plaintiffs. This raises the question : Did the defendants by their telegram of the 10th April, 1868, rescind the contract?
By the terms of the contract plaintiffs wore given the SylHbllsJ •right, to name one of the three places named in the contract for the delivery of the oil, as the place where such oil was to be delivered. And where a contract names several places, at any one of which personal prop-[14]*14ei'ty may delivery, at the buyer’s option, the buyer must within a reasonable time make his selection of the place.
Did the defendants within a reasonable time after making said contract designate the place, at which the oil should be delivered?
The commissioner reported, “ that the complainants notified the defendants of the place of the delivery of said oil, according to the -option of the complainants, on the 9th day of April, 1868. The contract was made on the 30th day of March, 1868. The letters, referred to in the statement of the case, were by the defendant Gunnison proved by E. Conner, their agent, to be in his handwriting and addressed to the defendants, and were made exhibits with the deposition of said Conner, at the request of the defendant Gunnison, who cross-examined the witness in person. In one of those letters dated April 14,1868, Conner the agent of defendant writing the defendant says : “Now this is the state of the case, you say in your letter of April 4th, ‘ we have from your letters concluded the oil is to be delivered in New York and have made arrangements accordingly,’ on the-strength of this I told Boyd’ & .Co., that you were shipping the oil to New York, and they must be prepared to receive it, and pay for it.” If is very evident from this letter, that a very short time after the contract was made, Conner was notified by the plaintiffs-, that they had elected to have the oil delivered in New York, and that Conner notified his principals of that fact; hence their letter on the subject as early as the 4th of April; but the oil not coming, on the 9th of April a formal notice in writing of the place as well as of the time of delivery was given to Conner the agents of defendants.
Under all the circumstances of this case, if there was no formal notice given to the defendants until the 9th of April, it was reasonable ; and it was not in the power of the defendants to rescind the contract, as they attempted to do by the telegram of the 10th April. If the de-[15]*15fondants had been more diligent in demanding at once, that the place should be fixed, and the plaintiffs had de-e'lined to indicate, where the oil should be delivered, it might bo, that the notice of the election of the place would have been deemed unreasonable. There is not a single communication on the subjectfrom the defendants to the plaintiffs, excepting, that the place should be fixed, except the following telegram dated at Cincinnati on the 1st day of April, 1868, sent to E. Conner : “Purchaser must select place of delivery; we must be conferred with as to time.” There is nothing said even in this dispatch, that they demand, that the purchaser should immediately fix the place of delivery. They say, that as to the time of delivery they must be conferred with, but the place must be selected by the plaintiffs.
The defendants being notified on the 9th through their agent, and actually receiving the notice about the syllabus •>. 10th of April, they would be entitled to a reasonable time thereafter to deliver the oil in New York, the place selected.. If nothing is said in the contract as to time of delivery, the delivery must be made in a reasonable time. Benjamin on Sales.
The commissioner’s report, that the oil could reasonably have been delivered in New York on the 26th of Syllabus 1. April. I rom the evidence I have no reason to doubt the correctness of this finding of the commissioner; and therefore on the 26th of April, 1868, in. the city of New York, is the time when, and the place where, the oil should have been'delivered under the contract.
• ■ If damages were sustained by a breach of the contract^ what was the measure'of such damages?
It could not be, as contended by the learned counsel for the appellants, the difference between the contract price and the market price, at the time the defendants Syllabus 5 refuse to perform, if by that is meant in this case on the 10th of April, when they sent the telegram to their agent,'“can’t wait longer for decision — Boyd & Co.de-[16]*16dine order.” Williams v. Woods, 16 Md. 220, is re-lit'd on to sustain the position of appellants’ counsel.Di that case, there was a sale of a lot of coffee; and very soon after the sale the seller refused to comply with the sale; and that court held, that “where in an action for the non-delivery of a lot of coffee the defendant refused on a certain day to ratify the sale and deliver the coffee, and the plaintiff at that time had not paid, or offered to pay, any part of the price, such a refusal constitutes a breach of the contract at that time ; and the measure of damages is the difference, if any, between the price of a lot of coffee, of the same quality and quantity at the time of such breach, and the price, at which the same had been sold.”
Worthen v. Wilmot, 30 Vt. 555 was an action for damages for failing to deliver corn according to contract. In the fall of 1854 the plaintiff bought a lot, two hundred bushels, of corn at $1.00 per bushel, to bo delivered “ at the defendants dwelling house at the first of sleighing, or within a convenient time thereafter. At the time the contract was made, the plaintiff paid defendant $25.00, earnest money, and was to pay the residue on delivery of the corn, or sooner if requested. Sleighing commenced that winter about the 1st of December. The defendant sent word to the plaintiff on the 9th of December, that he wished him to take his corn, as soon as he had drawn the corn of defendant’s' brother, which the plaintiff had also purchased, and was then drawing. On the 13th December, and before the plaintiff had drawn away all of the corn, which he had purchased of the defendant’s brother, the defendant sold his corn to another party for $1.80 per bushel. The plaintiff went to the defendant’s house on the 18th of December to _ draw away the corn, which he had purchased of the defendant, and demanded the corn, and tendered the defendant $175.00, the balance of the agreed price; but the defendant refused to deliver the corn. Corn commenced rising in price in December of that year, and [17]*17continued to rise until August, 1855, when it was worth in Thotford, where the defendant resided, $1.50 per bushel. On the 18th of December, 1854, it was worth in Thetford only $1.12|- per bushel; and on the 9th day of May, 1855, when the suit was tried, it was worth eight shillings per bushel. On the 16th day of December, 1854, the defendant sent' $25.00 to the plaintiff’s house, and left it with his wife, the plaintiff being abseut, as the earnest money advanced by the plaintiff, when the contract was made.
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JOHNSON, Judge,
delivered the opinion of the Court:
The first assignment of error is, that, the court Avas not justified by the case made in granting any relief to the plaintiffs. This raises the question : Did the defendants by their telegram of the 10th April, 1868, rescind the contract?
By the terms of the contract plaintiffs wore given the SylHbllsJ •right, to name one of the three places named in the contract for the delivery of the oil, as the place where such oil was to be delivered. And where a contract names several places, at any one of which personal prop-[14]*14ei'ty may delivery, at the buyer’s option, the buyer must within a reasonable time make his selection of the place.
Did the defendants within a reasonable time after making said contract designate the place, at which the oil should be delivered?
The commissioner reported, “ that the complainants notified the defendants of the place of the delivery of said oil, according to the -option of the complainants, on the 9th day of April, 1868. The contract was made on the 30th day of March, 1868. The letters, referred to in the statement of the case, were by the defendant Gunnison proved by E. Conner, their agent, to be in his handwriting and addressed to the defendants, and were made exhibits with the deposition of said Conner, at the request of the defendant Gunnison, who cross-examined the witness in person. In one of those letters dated April 14,1868, Conner the agent of defendant writing the defendant says : “Now this is the state of the case, you say in your letter of April 4th, ‘ we have from your letters concluded the oil is to be delivered in New York and have made arrangements accordingly,’ on the-strength of this I told Boyd’ & .Co., that you were shipping the oil to New York, and they must be prepared to receive it, and pay for it.” If is very evident from this letter, that a very short time after the contract was made, Conner was notified by the plaintiffs-, that they had elected to have the oil delivered in New York, and that Conner notified his principals of that fact; hence their letter on the subject as early as the 4th of April; but the oil not coming, on the 9th of April a formal notice in writing of the place as well as of the time of delivery was given to Conner the agents of defendants.
Under all the circumstances of this case, if there was no formal notice given to the defendants until the 9th of April, it was reasonable ; and it was not in the power of the defendants to rescind the contract, as they attempted to do by the telegram of the 10th April. If the de-[15]*15fondants had been more diligent in demanding at once, that the place should be fixed, and the plaintiffs had de-e'lined to indicate, where the oil should be delivered, it might bo, that the notice of the election of the place would have been deemed unreasonable. There is not a single communication on the subjectfrom the defendants to the plaintiffs, excepting, that the place should be fixed, except the following telegram dated at Cincinnati on the 1st day of April, 1868, sent to E. Conner : “Purchaser must select place of delivery; we must be conferred with as to time.” There is nothing said even in this dispatch, that they demand, that the purchaser should immediately fix the place of delivery. They say, that as to the time of delivery they must be conferred with, but the place must be selected by the plaintiffs.
The defendants being notified on the 9th through their agent, and actually receiving the notice about the syllabus •>. 10th of April, they would be entitled to a reasonable time thereafter to deliver the oil in New York, the place selected.. If nothing is said in the contract as to time of delivery, the delivery must be made in a reasonable time. Benjamin on Sales.
The commissioner’s report, that the oil could reasonably have been delivered in New York on the 26th of Syllabus 1. April. I rom the evidence I have no reason to doubt the correctness of this finding of the commissioner; and therefore on the 26th of April, 1868, in. the city of New York, is the time when, and the place where, the oil should have been'delivered under the contract.
• ■ If damages were sustained by a breach of the contract^ what was the measure'of such damages?
It could not be, as contended by the learned counsel for the appellants, the difference between the contract price and the market price, at the time the defendants Syllabus 5 refuse to perform, if by that is meant in this case on the 10th of April, when they sent the telegram to their agent,'“can’t wait longer for decision — Boyd & Co.de-[16]*16dine order.” Williams v. Woods, 16 Md. 220, is re-lit'd on to sustain the position of appellants’ counsel.Di that case, there was a sale of a lot of coffee; and very soon after the sale the seller refused to comply with the sale; and that court held, that “where in an action for the non-delivery of a lot of coffee the defendant refused on a certain day to ratify the sale and deliver the coffee, and the plaintiff at that time had not paid, or offered to pay, any part of the price, such a refusal constitutes a breach of the contract at that time ; and the measure of damages is the difference, if any, between the price of a lot of coffee, of the same quality and quantity at the time of such breach, and the price, at which the same had been sold.”
Worthen v. Wilmot, 30 Vt. 555 was an action for damages for failing to deliver corn according to contract. In the fall of 1854 the plaintiff bought a lot, two hundred bushels, of corn at $1.00 per bushel, to bo delivered “ at the defendants dwelling house at the first of sleighing, or within a convenient time thereafter. At the time the contract was made, the plaintiff paid defendant $25.00, earnest money, and was to pay the residue on delivery of the corn, or sooner if requested. Sleighing commenced that winter about the 1st of December. The defendant sent word to the plaintiff on the 9th of December, that he wished him to take his corn, as soon as he had drawn the corn of defendant’s' brother, which the plaintiff had also purchased, and was then drawing. On the 13th December, and before the plaintiff had drawn away all of the corn, which he had purchased of the defendant’s brother, the defendant sold his corn to another party for $1.80 per bushel. The plaintiff went to the defendant’s house on the 18th of December to _ draw away the corn, which he had purchased of the defendant, and demanded the corn, and tendered the defendant $175.00, the balance of the agreed price; but the defendant refused to deliver the corn. Corn commenced rising in price in December of that year, and [17]*17continued to rise until August, 1855, when it was worth in Thotford, where the defendant resided, $1.50 per bushel. On the 18th of December, 1854, it was worth in Thetford only $1.12|- per bushel; and on the 9th day of May, 1855, when the suit was tried, it was worth eight shillings per bushel. On the 16th day of December, 1854, the defendant sent' $25.00 to the plaintiff’s house, and left it with his wife, the plaintiff being abseut, as the earnest money advanced by the plaintiff, when the contract was made.
The referees reported, that if the difference between the contract price and the market value of the corn on .the day of the breach ofthe contract was to constitute the rule of damages, then the plaintiff was entitled to receive twenty-five dollars and interest thereon from the 18th of December, 1854; but that if on the other hand the rule of damages was the 'difference between the contract price and the highest market value between the time of delivery and the trial of the case, then the plaintiff was entitled to recover sixty-six dollars and sixty-six cents and interest thereon from the 18th day of December, 1854.
Upon these facts the court rendered judgment, that the plaintiff receive the difference between the contract price and the value of the corn on the day the case was tried and interest from that time.
In the Supreme Court, Aldis J., who delivered the opinion of the court, said : “The general rule is, that where the vendee has not paid for the goods in advance, the difference between the contract price and the market value at the time and place of the promised delivery, is the rule of damages. This goes upon the ground, that the injured party is thereby made whole; that he can take his money and go into the market and buy the articles, that were to have been delivered at their then market value; and that if he gets as much in damages from the vendor as the increase in price, which lie is bound to pay on the purchase of the same property, he [18]*18is thereby secure against loss." The judgment was rc-versed.
' In Phelps v. McGee,, 18 Ill, 155, it was held, that “where an article is to be delivered at a place certain, on or before a day named, without a prior demand, the breach can only occur on the day named; and the measure of damages, in case of a breach, will be the difference between the value of the article on the day and at the place named, and the contract price. A refusal to deliver upon a demand upon a day subsequent to that named in the contract, would not create a breach, but might be considered a waiver of the previous breach, and an acceptance might be held a satisfaction of the contract.”
The authorities do not sustain the rule as apparently laid down in Williams v. Woods, 16 Md.
In Virginia the rule isas follows : The general rule is, that the proper measure of damages for the breach of executory contracts for the sale and delivery of personal property is the difference between the market value of the article at the time and place, when and where it should have been delivered, and the contract price. Newbrough v. Walker, 8 Gratt. 16.
The same is the rule in our own State. Wiltner v. Riggs, 3 W. Va. 445; Hall v. Pierce et al., 4 W. Va. 107.
SyUahus o. The damages, that the plaintiffs are entitled to receive, if any,is the difference between the value of oil, of like quality to that they bought, in the market in the city of New York on the 26th day of April, 1868, the time when it should have been delivered, and the contract price. It is insisted by counsel for appellee, that the plaintiffs had the right to, and did, direct, that the oil should be received at different times in New York, extending to the-6th of Juno; and that the market value of the oil at all times from the 26th of April until the 6th of June should he taken into consideration, in fixing the amount of the plaintiffs5 dam[19]*19ages. There is no evidence in the record, that the defendants agreed at any time to deliver the oil at these several times. In the letter of the 9th of April, notifying defendants of the place of delivery, the plaintiffs said, they would take it all immediately, or, in their own language, “at as early a day as you can; ” * * * * “but as we do not really require the entire parcel at the moment, it toill suit us better for you to ship five hundred barrels as soon as possible, five hundred barrels in ten or twenty days,” &c. This was a mere favor they asked, which was never granted.
What damage, if any, did the plaintiffs sustain by reason of the breach of the contract? The commissioner reported, that the difference between the contract-price and the value of the oil, at the time and place oí delivery, was six cents per gallon, or $4,800.00.
Should the finding ofthe commissioner have been sustained? Where questions of,fact are submitted to a commissioner in chancery,his findings upon such facts should be sustained,unless the court is satisfied from the evidence before the court that such findings are erroneous. Izaid v. Bodine, 1 Stock. 309; Sinnickson v. Bruere, Id. 669; Merriam v. Baxter, 14 Vt. 514; Adams v. Brown, 7 Cush. 222 Reed v. Reed, 10 Pick. 398; 2 Dan’l Ch. Pr. 1298.
The court reformed the report as to the amount of the difference between the contract price and the value of the oil, and fixed the difference at three cents per gallon instead of six. The commissioner was clearly wrong-in fixing different times for the delivery of the oil, as there was but one time, when it should have been delivered, which we have ascertained to be'the 26th of April, 1868. He however reports, that he had found, that “on every one of the dates, where delivery should be made, the market price is 30 cents per gallon.” The court cut down this finding to 27 cents per gallon, making the difference between the market price and the contract price three instead of six cents, as found by the commissioner, and rendered a decree for the said difference amounting [20]*20to $2,400.00. Was the commissioner wrong, and was ' the court right ?
We agree with the Icarnedjndgo in his opinion, that the report of the commissioner, as to the six cents per gallon, was clearly erroneous; because he seems to have disregarded the defendants, testimony to a great extent at least. Keeping in view the fact, that the 26th day of April, 1868, was the time when, and Now York city the place where, the oil should have been delivered, is the report of the commissioner, as reformed by the court and by it confirmed, sustained by the evidence ? If it is, we see no reason for disturbing it. If it is not plainly eiro-neous, it ought not to bo disturbed, because there ought to be an end of litigation. Before it is disturbed, it ought to appear from the record, that injustice has been done the appellants. I have very carefully examined the mass of testimony, conflicting as it is, to see if the decree of the court is sustained thereby, fixing, as I have, the 26th day of April as the time of the delivery. While it is hard from this conflicting mass of evidence to say precisely, what was the market value of oil, of the quality sold by appellants to appellee, on the said 26th day of April, yet I cannot say, that it was not as much as 27 cents per gallon, and that the difference therefore between the market price on that day and the contract price was not what the court said it was, three cents per gallon.
It is objected, that the evidence of the plaintiffs’ witnesses referred to a certain brand of oil called the “'globe brand,” which was worth more in the market'; but this is not clearly shown. The presumption of law is in favor of the decree of the court below; and I do not think, that presumption is overcome in this case;'and the decree should be approved. Hickman v. Painter et al., 11 W. Va. 386.
It is insisted by appellants’ counsel, that the court erred in not recommitting said report, to state the difference in the price of oil, on the day of delivery, at [21]*21tlm"different places of delivery mentioned in the contract. That would have been an immaterial enquiry, anil could-have thrown no light upon the issue, which was*. what was the difference between the contract price ami the value of the oil in New ' 'órk, when the oil should have been there delivered -
It is further insisted by counsel for appellants, that the court and commissioner erred in not finding the price of the oil at the place of production, as stated in the contract, and the price of transportation to New York, so as to arrive at the true damages, there being np market value for said oil in New York on the day of delivery. It is a sufficient answer, to refer to the fact that the evidence shows, what the value of the oil was in New York about the 26th of April, if not on that precise day. 1 do not say, that such testimony would not have been admissible; such testimony is in the record, and we have weighed it; and yet we do not think, it should change the result. It might throw some light, however weak, upon. the issue in the cause. It is also proper, as was done in this cause, to hear evidence of the market value of the article, both before and after the day of dtelivery, if not too remote therefrom to aid Syllabus 9. in determining, what was the market value'of the article on the day of delivery. Eaton v. Mellus, 7 Gray 556.
Upon tlie whole case we see no error in the decree complained of; and it is affirmed, with costs and damages according to law; and this cause is remanded to the circuit ‘court of Wood county to be- further proceeded with.
Tins Other Judges Concurred.
Decree Aeeirmed, Cause Remanded.