Opinion delivered March 24, 1873, by
When a vendor fails to comply with his contract, the general rule for the measure of damages undoubtedly is the difference between the contract and market prices of the article at the time of the breach. This is for the evident reason that the vendor can go into the market and obtain the article contracted for at that price. But when the circumstances of the case are such that the vendor cannot thus supply himself, the rule does not apply, for the reason of it ceases. Bank of Montgomery v. Reese, 2 Casey 143. “It is manifest,” says Mr. Chief Justice Lewis, “that this (the ordinary measure) would not remunerate him when the article could not be obtained elsewhere.” If an article of .the same quality cannot be procured in the market, its market price can not be ascertained, and we are without the necessary data for the application of the general rule. This is a contingency which must be considered to have been within the contemplation of the parties, for they must be presumed to know whether such articles are of limited production or not. In such a case the true measure is the actual loss which the vendor sustains in his own manufacture, by having to use an inferior article, or by not receiving the advance on his contract price upon any contract which he had himself made, in reliance upon the fulfillment of the contract by *102the vendor. We do not mean to say that if he undertakes to fill his own contracts with an inferior article, and in consequence such article is returned on his hands, he can recover of his vendor, besides the' loss sustained on his contract, all the extraordinary loss incurred by his attempting what was clearly an unwarrantable experiment. His legitimate loss is the difference between the contract price he was to pay his vendor, and the price he was to receive from his vendees. This is a loss which springs; directly from the non-fulfillment of the contract. The affidavits of defence are not as full and precise upon this point as they might and ought to have been, but they state that the defendant below had entered into such contract, and that they were unable to get the same quality of iron which the plaintiff had agreed to deliver, and this, we think, was enough to have carried the case to a jury. Judgment reversed, and procedendo awarded.
Hon. John D. Stiles, for plaintiff in error; B. More, Esq., for defendant in error.