Sargent, J.
The two counts, one upon the account annexed and the other for goods sold and delivered, are substantially the same, both forms being recognized as proper in cases of goods sold and delivered. Messer v. Woodman, 22 N: H. 176; Newmarket Iron Foundry v. Harvey, 23 N. H. 395. It is not claimed that the plaintiff can recover in this case upon either of these counts.
Can he recover upon the count for goods bargained and sold? The referee does not inform us whether he found that the goods were bargained and sold, or whether his award is based upon the ospecial count, in the case, for not receiving aud paying for the hay contracted to be sold, and purchased under the special contract.
In order to find upon the count for goods bargained and sold, he must have found that the goods were bargained and sold, before the date of the writ, because anything that has happened since the suit was commenced, cannot affect the plaintiff’s right of recovery in this suit. The agreement that Dudley should sort the hay, &c., was made long before suit brought, but it was not sorted by him until after the suit was commenced, and the defendants do not rely upon any award as made by him. They have not pleaded it, and after it was made they have agreed to a reference of this case generally and the referee has heard the parties and made his report. The report of Dudley was introduced in evidence, and considered by the referee which was all that the dofesdants claim, and we see nothing in the ease that leads us to think that the parties intended that his action should be final or conclusive.
He recognized and introduced an element in his action not known in the agreement of submission, which may have made a material difference in his finding. The parties agreed that he should divide it, into good hay and swale hay. He divided into good hay and mixed, or swale hay. Mixed hay may be good hay for many purposes, where swale hay is not. The objection that he did not follow the submission, we think was well taken. ITe think the referee de[382]*382ciclecl correctly in regard to the submission to Dudley, that it was not decisive of the case, but to be considered only as evidence tending to show the terms of the original contract.
We infer from the statement of the court in the case that the referee did not find his award upon the count for goods bargained and sold. That was a question which he might properly decide upon the evidence before him, and if he had found his award upon that count then the award would have been right in amount, because if he found that the hay had been bargained and sold bcfoi'e the date of the writ, that the property had, in fact, passed to the defendants, then the damages would be the contract price for the hay. But the statement in the case is, that the referee did not find that fact in that way substantially, but that he went upon the ground that plaintiffs ught to recover the full value or price of the hay, and that the title to the hay would thereupon vest in the defendants, in other words, that the property in the hay would not vest, and was not by the contract to vest in the defendants until the whole purchase money should be paid, which was not paid at the date of the writ and has not been since. If that is the correct version of the matter, then this action cannot be maintained on the count for goods bargained and sold. In this view of the case there had been no actual sale, no passing of the property, but only a contract to sell and deliver when the hay should be paid for.
Assuming then that the award of the referee is based upon the special count in the writ, the defendants are liable under that count for any damages the plaintiff may have suffered by the defendants breaking that contract.'
We certainly cannot find upon the evidence stated in the case, that the referee did not decide this question aright. In fact much of the evidence stated favors that view ot the case. The authorities are pretty uniform that to maintain this action for goods bargained and sold the property in the goods must have passed to the vendee and he must be in a position to recover the goods in trover, should any one take them away, or that he must sustain the loss of the goods, should they be stolen or destroyed by fire. Atkinson v. Bell, 8 B. & C. 277 ; Bemet v. Smith, 15 Wend. 493 ; Rhoades v. Thwaites, 6 B. & C. 392 ; 4 Plil. Ev. (C. & H.) 113 and note 327 page 209; Elliott v. Pybus, 10 Bing. 512 : Messer v. Woodman, 22 N. H. 117 ; Ockington v. Richey, 41 N. H. 279 ; Bailey v. Smith, 43 N. H. 143 ;Pennyman v. Hartshorn, 13 Mass. 87.
The remaining question is as to the rule of damages that the referee should have adopted, whether in finding upon the special contract as we assume he did, he should hav'e allowed the plaintiff as damages the whole of the contract price, or only the difference between the contract price, and the market price at the time the contract was broken.
Sedgwick, in his work on damages (5th Ed.) page 312, says: “When the vendee is sued for nonperformance of the contract on his part, in not paying the contract price, if the goods have been de[383]*383livered, the measure of damages is of course the price named in the agreement. But if their possession has not been changed, it has been doubted whether the rule of damages is the price itself, or only the difference between .the contract price and the value of the article at the time fixed for its delivery. It seems to be well settled in such cases, that the vendor can resell them if he see fit, and charge the vendee with the difference between the contract price and that realized at the sale.
But if the vendor does not pursue this course, and without reselling the goods, sues the vendee for his breach of contract, the question arises, which we have already stated, whether the vendor can recover the contract price or only the difference between that price and the value of the goods which remain in the vendor’s hands, and the rule appears to be that the vendor can recover the contract price in full.”
He cites as an authority, Graham v. Jackson, 14 East 498 ; which was upon a special contract to purchase three hundred tons of Cam-peachy log wood at thirty-five 1. per ton, to be of real merchantable quality, and such as might be determined to be otherwise by impartial judges to bo rejected. Under this contract the plaintiff, the vendor had shipped the three hundred tons of log wood from New York and tendered it to the purchaser in England. It was held that under that contract and the circumstances of the case, the vendee was bound to take so much of the wood tendered as turned out to be of the sort described, at the contract price though it turned out upon examination that sixteen out of the three hundred tons, was of a different and inferior quality. But this was a construction given to that particular contract, and not the statement of any general principle, to be applied to all cases.
He then says, “ the question has been considered in New York and decided in the same way. He cites, Bement v. Smith, 15 Wend. 493. But an examination of that case shows, that the decision is put upon the express grounds that what the plaintiff did in the case amounted to a delivery of the property. The declaration was for work and labor and goods sold, and also upon special counts, setting forth the contract and alleging a delivery
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Sargent, J.
The two counts, one upon the account annexed and the other for goods sold and delivered, are substantially the same, both forms being recognized as proper in cases of goods sold and delivered. Messer v. Woodman, 22 N: H. 176; Newmarket Iron Foundry v. Harvey, 23 N. H. 395. It is not claimed that the plaintiff can recover in this case upon either of these counts.
Can he recover upon the count for goods bargained and sold? The referee does not inform us whether he found that the goods were bargained and sold, or whether his award is based upon the ospecial count, in the case, for not receiving aud paying for the hay contracted to be sold, and purchased under the special contract.
In order to find upon the count for goods bargained and sold, he must have found that the goods were bargained and sold, before the date of the writ, because anything that has happened since the suit was commenced, cannot affect the plaintiff’s right of recovery in this suit. The agreement that Dudley should sort the hay, &c., was made long before suit brought, but it was not sorted by him until after the suit was commenced, and the defendants do not rely upon any award as made by him. They have not pleaded it, and after it was made they have agreed to a reference of this case generally and the referee has heard the parties and made his report. The report of Dudley was introduced in evidence, and considered by the referee which was all that the dofesdants claim, and we see nothing in the ease that leads us to think that the parties intended that his action should be final or conclusive.
He recognized and introduced an element in his action not known in the agreement of submission, which may have made a material difference in his finding. The parties agreed that he should divide it, into good hay and swale hay. He divided into good hay and mixed, or swale hay. Mixed hay may be good hay for many purposes, where swale hay is not. The objection that he did not follow the submission, we think was well taken. ITe think the referee de[382]*382ciclecl correctly in regard to the submission to Dudley, that it was not decisive of the case, but to be considered only as evidence tending to show the terms of the original contract.
We infer from the statement of the court in the case that the referee did not find his award upon the count for goods bargained and sold. That was a question which he might properly decide upon the evidence before him, and if he had found his award upon that count then the award would have been right in amount, because if he found that the hay had been bargained and sold bcfoi'e the date of the writ, that the property had, in fact, passed to the defendants, then the damages would be the contract price for the hay. But the statement in the case is, that the referee did not find that fact in that way substantially, but that he went upon the ground that plaintiffs ught to recover the full value or price of the hay, and that the title to the hay would thereupon vest in the defendants, in other words, that the property in the hay would not vest, and was not by the contract to vest in the defendants until the whole purchase money should be paid, which was not paid at the date of the writ and has not been since. If that is the correct version of the matter, then this action cannot be maintained on the count for goods bargained and sold. In this view of the case there had been no actual sale, no passing of the property, but only a contract to sell and deliver when the hay should be paid for.
Assuming then that the award of the referee is based upon the special count in the writ, the defendants are liable under that count for any damages the plaintiff may have suffered by the defendants breaking that contract.'
We certainly cannot find upon the evidence stated in the case, that the referee did not decide this question aright. In fact much of the evidence stated favors that view ot the case. The authorities are pretty uniform that to maintain this action for goods bargained and sold the property in the goods must have passed to the vendee and he must be in a position to recover the goods in trover, should any one take them away, or that he must sustain the loss of the goods, should they be stolen or destroyed by fire. Atkinson v. Bell, 8 B. & C. 277 ; Bemet v. Smith, 15 Wend. 493 ; Rhoades v. Thwaites, 6 B. & C. 392 ; 4 Plil. Ev. (C. & H.) 113 and note 327 page 209; Elliott v. Pybus, 10 Bing. 512 : Messer v. Woodman, 22 N. H. 117 ; Ockington v. Richey, 41 N. H. 279 ; Bailey v. Smith, 43 N. H. 143 ;Pennyman v. Hartshorn, 13 Mass. 87.
The remaining question is as to the rule of damages that the referee should have adopted, whether in finding upon the special contract as we assume he did, he should hav'e allowed the plaintiff as damages the whole of the contract price, or only the difference between the contract price, and the market price at the time the contract was broken.
Sedgwick, in his work on damages (5th Ed.) page 312, says: “When the vendee is sued for nonperformance of the contract on his part, in not paying the contract price, if the goods have been de[383]*383livered, the measure of damages is of course the price named in the agreement. But if their possession has not been changed, it has been doubted whether the rule of damages is the price itself, or only the difference between .the contract price and the value of the article at the time fixed for its delivery. It seems to be well settled in such cases, that the vendor can resell them if he see fit, and charge the vendee with the difference between the contract price and that realized at the sale.
But if the vendor does not pursue this course, and without reselling the goods, sues the vendee for his breach of contract, the question arises, which we have already stated, whether the vendor can recover the contract price or only the difference between that price and the value of the goods which remain in the vendor’s hands, and the rule appears to be that the vendor can recover the contract price in full.”
He cites as an authority, Graham v. Jackson, 14 East 498 ; which was upon a special contract to purchase three hundred tons of Cam-peachy log wood at thirty-five 1. per ton, to be of real merchantable quality, and such as might be determined to be otherwise by impartial judges to bo rejected. Under this contract the plaintiff, the vendor had shipped the three hundred tons of log wood from New York and tendered it to the purchaser in England. It was held that under that contract and the circumstances of the case, the vendee was bound to take so much of the wood tendered as turned out to be of the sort described, at the contract price though it turned out upon examination that sixteen out of the three hundred tons, was of a different and inferior quality. But this was a construction given to that particular contract, and not the statement of any general principle, to be applied to all cases.
He then says, “ the question has been considered in New York and decided in the same way. He cites, Bement v. Smith, 15 Wend. 493. But an examination of that case shows, that the decision is put upon the express grounds that what the plaintiff did in the case amounted to a delivery of the property. The declaration was for work and labor and goods sold, and also upon special counts, setting forth the contract and alleging a delivery of the goods by plaintiff. This cannot be an authority for the doctrine claimed.
But there is a distinction between that case, and the ordinary cases of goods sold and delivered, which is alluded to in the opinion viz., the distinction between a contract to sell goods, then in existence, and an agreement to furnish materials and manufacture an article in a particular way, and according to order, which is not yet in existence. The latter is said not to be so'much a contract for the sale and purchase of goods, as a contract for work and labor merely, and it is held that in that class of cases the statute of frauds does not apply, when there is nothing' paid and no actual delivery.
In a largo class of cases of that kind, where the plaintiff has made surgical instruments of a particular kind, and according to order, for the defendant who had patented the same, and which would ot [384]*384course be worthless iu the hands of the plaintiff, or where a tailor had made a suit of clothes to order, of a particular description, and for a particular measure, or a shoemaker had made boots or shoes to order and of a particular size and pattex-n, or the carriage maker had made a carriage in the same way, of a particular style and pattern, or the artist has painted a portrait of an individual to order, or an engineer has contracted an engine according to order for a particular use, &c., though the mechanic or artist may sell the goods, if he choose and recover of the defendant, the difference between the contract price, and the price for which the article was sold, yet it is held that he may if he choose, when he has fully performed his part of the contract and tendered the article thus manufactured to the defendant, or offered it at the place appointed, recover the full value of the article and leave the defendant to sell or use or dispose of the article at his pleasure, and for the reason, in addition to that already stated that the article thus manufactured for a particular person, or according to a particular pattern, or for a particular use, may be of comparatively little value to any body else, or for any other use or purpose, but this class of cases are recognized as exceptions to the general rule, which is to be applied in the sale of ordinary goods or merchandise which have a fixed market value. Allen v. Jarvis, 20 Conn. 38 ; Bement v. Smith, 15 Wend. 493 and cases ; Battantine v. Robinson, 26 Penn. 177.
Mr. Sedgwick also cites a case from Massachusetts as sustaining-his his view. Thompson v. Algier, 12 Met. 428. But an examination of the case shows' that it was a contract for the purchase and sale of • railway shares and that there had been a part payment for the same, and that while the contract was in force, the plaintiff had actually transferred the stock on the books of the company to the vendee, so that the plaintiff had actually lost his title to the shares, and upon this special ground the court held that plaintiff was entitled to recover the contract price. But in that case it is stated distinctly that the general rule in that state, is, that in contracts for the sale of personal property, the defendant would be liable to pay the difference between the agreed price and the market value of the goods on the day of delivery.
Dewey, J., in the opinion, page 443, says, that in ordinary cases this rule would do entire justice to the vendor. He would retain the property as fully in his hands as befox-e, and a paymexxt of the difference betweexi the market price and the px-ice stipulated, would fully indemnify him. And that in that case, if the defendaxxt had repudiated the coxxtract befox-e any transfer of stock had been made to him oxi the books of the corporation, that rule might have been properly applied here. This case then stands upon special grounds, but it states fully and plainly what the genex-al rule is understood to be in that state, axicl is by no means an authoi’ity for the doctrine which the author seeks to establish.
Mr. Sedgwick admits that where the plaintiff has not the goods that he agrees to sell, but makes a side contract with another to fur[385]*385nish them, he will only be allowed to recover the difference between tbe original contract price and the market price at the time of the offer with interest. He then cites some authorities where goods were sold and delivered, to be paid for by bill or note payable at a future day, and the bill or note is not given. There though the vendor cannot maintain assumpsit for the goods sold and delivered, until the term of credit has expired, yet he may sue immediately for the breach of the special agreement, and may recover as damages the whole value of the goods. But that does not militate against the general rule, because it comes under another general rule, that when the goods are sold and delivered, the contract price is the measure of damages.
We have seen that the general rule in Massachusetts, in actions for the non-acceptance of property sold or contracted for, is the difference between the price agreed to be paid for it and its real value, or market price. Thompson v. Algier, 12 Met. 428, 443.
Such is distinctly stated to be the general rule in Connecticut, in Allen v. Jarvis, 20 Conn. 38 ; and in Pennsylvania, Girard v. Taggart, 5 Sergeant & Rawle 19 ; Ballantine v. Robinson, 46 Penn. 177 ; and in Wisconsin, Ganson v. Madigan, 13 Wis. 67; and in New York, Dana v. Fiedler, 2 Kern. 41; Orr v. Bigelow, 14 N. Y. 556 ; Dey v. Dox, 9 Wend. 129 ; Davis v. Shields, 24 Wend. 322 ; Stanton v. Small, 3 Sandf. 230; Mallory v. Lord, 29 Barb. 454, 465; and in Missouri, Whittemore v. Coates, 14 Mo. 9 : also, in Kentucky, Williams v. Jones, 1 Bush. 621, 627, in which Hardin, J., delivering the opinion says : “ The true measure of damages for the failure to receive and pay for property contracted for is not the contract price, but it is the difference between the contract price and the actual value of the property, when it should have been received under the contract.
So in a contract for the sale of railway shares. The rule of damages, which either party is entitled to recover, is the difference between the contract price and the market price at the time of delivery. Bed. on Bail. (Ed. of 1858) 54; 1 Bed. on Rail. 132, and cases cited.
There is some diversity prevailing in regard to the rule of damages for breach of a contract for the sale and purchase of lands. In New York, it is held that in an action against the purchaser for not receiving a deed and paying for lauds bargained for, the damages are the whole value of the land, though the purchaser gets no title to it. Richards v. Eddick, 17 Barb. 260.
But such is not the rule in the English courts. Laird v. Prince, 7 Mees. &. Wells. 474 and cases cited. Neither is such the rule in Massachusetts; for though there are dicta favoring the New York rule, — in Sears v. Boston, 16 Pick. 357 ; in Gile v. Bicknell, 2 Cush. 358 ; and in Jacobs v. Railroad, 8 Cush. 223, — yet the question is directly raised, considered and decided in Old Colony Railroad v. 6 Evans, Gray 25, in which it is held that ‘ ‘ uponmore full consideration of the question of the measure of damages in an action at law, when the [386]*386defendant has refused to receive the deed tendered him, the court are of opinion that the proper rule of damages in such a case is, the difference between the price agreed to be paid for the land, and the salable value of the land at the time the contract was broken.
In this state we find it settled, in Stevens v. Lyford, 7 N. H. 360, that upon a breach of a contract for the delivery of lumber, the purchaser was entitled to recover the difference between the value of the lumber at the place where it was to be delivered, and the sum to be paid. And in Rand v. Railroad, 40 N. H. 79, it is assumed that the same rule would apply to the vender, and that the proper rule of damages in case the subscriber of railroad stock refuses to pay for and receive the same, when no certificate of the stock has been issued, would be the difference between the price at which he agreed to take the stock, and its actual or market value at the date of the breach of the conti act.
And in McKean v. Turner, 45 N. H. 203, 205, Bellows, J., in commenting upon Rand v. Railroad, supra, says : “ There the claim was upon the contract of the trustee to take and pay for some shares in the capital stock of the corporation, which shares had never been delivered or accepted. The measure of damages, therefore, was the difference between the contract price and the actual value of the stock at the time of the breach of the contract, and ordinarily the market value of stock can readily be determined.”
In the case before us, we understand from the case that the referee found that the property had not passed to the defendant. It was not a specific article of property that had been manufactured to order for the defendant, but the property in question was hay, which had a market value easily ascertainable. Upon the finding of the referee, as we understand it, this property remained not only in the possession of the plaintiff but his property.
We think in such a case, it would be in accordance with the great weight of authority, besides being reasonable and just in itself, to hold that the rule in assessing plaintiff’s damages, would be to give him the difference between the contract price of the hay and its market value, at the time when the defendant should have received and paid for it; taking into account, of course, the fact that by the contract the plaintiff was to draw the hay to the depot to be delivered, which was included in the contract price.
According to the provisions of the case, the report is set aside and the
Cause recommitted to the referee.