The opinion
Wagner, Judge,
delivered the opinion of the court.
By the terms of the contract as entered into between the parties in this case, the appellant Cook was to deliver to the respondent one thousand tons of ice within sixty days of the date of the agreement, and the respondent was to pay fourteen dollars per ton therefor as the same was delivered.
*211 The first instruction given by the court for the appellant was entirely too favorable for him according to the evidence which he had introduced and on which it was partly grounded. Whether there was any rescisión of. the contract was properly left to the jury, and their verdict negativing any such rescisión was well warranted by the evidence and must be held conclusive.
The measure of damages was correctly and fairly laid down by the court. Where a vendor has agreed to sell and deliver personal property at a particular day or within a particular time, and fails to perform his contract, the vendee may recover in damages the difference between the contract price and the market value when it should have been delivered. So where a vendee who has agreed to purchase goods at a certain price, refuses to receive them, and they have fallen in value, he must pay the difference between their market value and the enhanced price which he contracted to pay — Whitmore v. Coots, 14 Mo. 9 ; Brown v. Nash, 9 Barn. & Cress. 145; Shepherd v. Hampton, 3 Wheat. 200 ; Day v. Dix, 9 Wend. 129 ; Davis v. Shield, 24 Wend. 322 ; Masterton v. Mayor, &c., 7 Hill, 62 ; Clark v. Pinney, 9 Cow. 681 ; McKnight v. Dunlap, 5 N. Y. 537 .
The admission of evidence by the court worked no prejudice to the just rights of the appellant, and upon a view of the whole case the record shows no error.
The judgment must be affirmed.
The other judges concur.