(j) Suvdam v. Jenkins, 3 Sandf. 639. (k) This distinction has, in some cases, been overruled, and the value of the property at the time and place of the promised delivery taken as the measure of damages, without reference to the previous payment of the consideration. Smethurst v. Woolston, 5 Watts & S. 106; Smith v. Dunlap, 12 I11 184; Bush v. Canfield, 2 Conn. 485; Wells v. Aber-nethv, 5 id. 222; Vance v. Tourne, 13 La. 225; Sargent p. The Franklin Ins. Co. 8 Pick. 90; Startup v. Cortazzi, 2 Cromp. M. & R. 165. Where the price has not

*a similar question - as to the time when the value of property is to be taken - repeatedly, because different principles have been applied to it in different actions. But we doubt if this be wise or just If we adhere to the simple rule of compensation, we should say, that in every action to recover damages for the wrongful detention of personal property, the plaintiff should recover full compensation for the loss of all that he might fairly have gained during the whole period of the defendant's misappropriation; and the defendant should be supposed to have made his wrongful act as profitable to himself as the market at any time permitted, - excepting, perhaps, accidental and momentary inflations, and should be compelled to give over this profit to the plaintiff. And it will be seen in our notes that we have recent authority for this general rule. (l) * In determining what is the market value of property at been paid by the vendee, the authorities generally agree; some of them, not noticing the distinction we have mentioned, that the difference between the market value of the goods at the time of the promised delivery, and the contract price, is the measure of damages. Leigh v. Paterson, 8 Taunt. 540; Gainsford v. Carroll, 2 B. & C. 624; Peterson v. Ay re, 13 C. B. 383; 24 Eng. L. & Eq. 382; Boor-man v. Nash, 9 ft. & C. 145; Shaw v. Holland, 15 M. & W. 136; Douglass v. M'Allister, 3 Cranch, 298, 1 Cranch, C. C 241; Giipins v. Consequa, Pet. C. C. 85; Dey v. Dox, 9 Wend. 129; Beals v. Terry, any particular time, the jury may sometimes take a wide range; for this is not always ascertainable by precise facts, but must sometimes rest on opinion; (m) and it would seem that neither party ought to gain or lose by a mere fancy price, or an inflated and accidental value, suddenly put in force by some speculative movement, and as suddenly passing away, (n)1 The question of measurement of damages by a market value is peculiarly one for the jury. But a court would not willingly permit them to take any extreme of valuation, whether high or low, which contradicted existing facts, and rested only on a merely speculative opinion of a future want or excess. The plaintiff should not be permitted to make a profit by the breach of his contract, which he could not have naturally expected to make by its performance; nor should he be subjected to a loss, and the defendant be permitted to make a saving, on a merely speculative possibility. The inquiry always should be, what was the value of the thing at that time, taking into consideration all proved facts of price and sale, and all rational and distinct probabilities, and nothing more, (o) * If the vendee objects that the articles are not such as he bargained for, he may rescind the contract as a whole, but, as we have seen, not as to a part If, therefore, he has

2 Sandf. 127; Clark v. Dales, 20 Barb. 42; Dana v. Fiedler, 2 Kern. 40; Tobin v. Post, 3 Cal. 373; Shaw v. Nudd, 8 Pick. 9; Swift v. Barnes, 16 id. 194; Smith v. Berry, 18 Me. 122; Marchesseau v. Chaffee, 4 La. An. 24. There are cases which hold, that in trover, the highest value of the goods at any intermediate period between the conversion and the trial, is the measure of damages. West v. Wentworth,

3 Cowen, 82; Greening v. Wilkinson, 1 C. & P. 625. See Fisher v. Prince, 3 Burr. 1363; Whitten v. Fuller, 2 W. Bl. 902. In detinue, for railway scrip, the measure of damages was held to be the difference between its value when demanded and its depreciated value when delivered up. Williams v. Archer, 5 C. B. 318, 2 Car. & K. 26; Tempest v. Kulner, 3 C. B. 249. See Com. Bank of Buffalo v. Kortright, 22 Wend. 348; Wilson v. Little, 2Comst. 443.

(l) Suydam v, Jenkins, 3 Sandf. 614. See supra, note (j ), and ante p. +201, n. Dunlop v. Higgins, 1 H. L. Cas. 381,403. Lord Chancellor Cottenham: "Suppose, for instance, a party, who has agreed to purchase 2,000 tons of pig iron on a particular dav, has himself entered into a contract with somebody else, conditioned for the supply of 2,000 tons of pig iron to be delivered on that day, and that he, not being able to obtain those 2,000 tons of pig iron on that particular day, loses the benefit arising from that contract. If pig iron had only risen a shilling a ton in the market, but the pursuers had lost £1,000 upon a contract with a railway company, in my opinion they ought not only to recover the damage which would have arisen if they had gone into the market and bought the pig iron at that increased price, but also that profit which would have been received if the party had performed his contract. No other rule is reconcilable with justice, nor with the duty which the jury had to perform,-that of deciding the amount of damage which the party had suffered by the breach of his contract." But in trover for goods sold, it was held, in Massachusetts, that the rule of damages is their value at the time of the conversion, notwithstanding the vendor has resold them at an advanced price before the trial. Kennedy v. whitwell, 4 Pick. 466. See Hanna v. Harter, 2 Pike, 397, where, in an action against a vendor for refusing to complete a contract of sale, it was held, that the sum at which he resold the article does not establish its market value. See also Fessler v. Low, 48 Pa. 407; Kent v. Ginger, 23 Ind. 1; Noonan v. Ilsley, 17 Wis. 314; Nash r. Towne, 5 Wallace, 689; Northrop v. Cook, 39 Mo. 208.

(m) Joy v. Hopkins, 5 Denio, 84.