In most jurisdictions, however, so general a rule would probably not be laid down. The vendor should not recover the contract price, unless either the title to the property is in the vendee, or the property is worthless to the vendor, though still owned by him. In Gordon v. Norris, 49 N. H. 376, 383, the court say: " In a large class of cases of that kind where the plaintiff has made surgical instruments of a particular kind according to order for the defendant, who had patented the same, and which would, of cou-se, be worthless in 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 pattern; 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 constructed an engine according to order for a particular use, etc., - 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 anybody 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 nave a fixed market value. See also Pearson v. Mason, 120 Mass. 53; Shawhan v. Van Nest, 25 Ohio St. 490; Ballentine v. Robinson, 46 Pa. 177.

But ordinarily the difference between the contract price and the market price at the time of the breach is all that can be recovered. See cases cited in note 1, on the preceding page. Also Geiss v. Wyeth Hardware Co. 37 Kan. 130; Ray burn v. Corn-stock, 80 Mich. 448; Black River Lumber Co. v. Warner, 93 Mo. 374; 'Muskegon, etc R. R. Co. v. Keystone Mfg. Co., 135 la, 132.

* either case, proceeds upon the breach of the contract by the vendee, it seems reasonable that this election should be given to the vendor, and no part of it to the vendee. But if the vendor has not the goods himself, but contracts with a third party for them, it is said (but not, as we think, for good reasons), that he now recovers only the difference between the market value and the contract price. But if this contract to buy was absolute and obligatory, and he had the goods in his control, so that his vendee might have them on demand, it might not be easy to discriminate this case from the other, on principle, (u)

After giving notice to the defendants the plaintiffs sold the wheat in their hands at auction. Van Ness, J., said: "Nothing, therefore, is more reasonable, than that the plaintiffs, who were not bound to store or purchase the wheat, should be permitted to sell it at the best price that conld be obtained. The defendants have no right to complain. Had they taken the wheat, at they onght to have done, a sale by the plaintiffs would not have been necessary. The recovery here is only for the difference between the net proceeds of that sale and the price agreed upon in the original contract." Bement v. Smith, 1ft Wend. 493; Graham v. Jackson, 14 East, 498. In Bement n. Smith, the plaintiff built a carriage for the defendant, according to an agreement, tendered it to him, and, on his refusal to accept it, deposited it with a third person on his account, giving the defendant notice of the deposit and brought an action of assumpsit It was held, that the plaintiff was entitled to recover the price agreed upon. But in Laird v. Pirn, M. & W. 474, 478, Parke, B., said: "A party cannot recover the full value of the chattel, unless under circumstances which import that the property has passed to the defendant, as in the case of goods sold and delivered, where they have been absolutely parted with, and cannot be sold again. See also Dunlop v. Grote, 2 Oar. & K. 153; Thompson v. Alger, 12 Met. 428,443. In this last case, the contract was for the purchase of railroad shares, and they had already been transferred to the vendee, on the books of the company, and he refused, after the transfer, to receive them; the vendor was held entitled to recover the contract price; but the court were of opinion that if the refusal had preceded the transfer, the difference between the agreed price and the market value on the day of delivery would have been the measure of damages. Dewey, J.: "The plaintiff is entitled to recover the whole amount stipulated to be paid for the stock. The argument against such recovery is, that this stock was never accepted by the defendant; that this, at most, was a mere contract to purchase; and that the defendant, having repudiated it, is only liable to pay the difference between the agreed price and the market value of the stock on the day of the delivery. Such would be the general rule as to contracts for the sale of personal property; and such rule would do entire justice to the vendor. He would retain the property as fully in his hands as before, ana a payment of the difference between the market price and that stipulated would fully indemnify him. Such would have been the rule in this case if nothing had been done to change the relations of the parties. If, for instance, the defendant had repudiated the contract, before any transfer of stock to him had been made on the books of the corporation, it might properly have applied here. But this is a case of somewhat peculiar character in this respect. The contract of the vendor to sell to the defendant one hundred and eighty shares of railroad stock, required a previous transfer of the shares on the books of the corporation. This, from the very nature of the case, was a previous act; and when done, it passed the property on the books of the company to the defendant."