breach of such a contract is that the difference between the market price of the goods at the time and place specified in the contract for delivering the same, and the contract price, is the measure of damages. But this rule presupposes that the vendee may go into the market and purchase the goods. If no such goods can be obtained, there can be no such thing as a market price by which to measure the purchaser's damages. Hinde v. Liddell, L. R. 10 Q. B. 265; Colliery Co. v. Lever, 9 Ch. Div. 20, 41 L. T. N. S. 633, 43 Id. 706; Auger v. Cook, 39 Up. Can. Q. B. 537; Cockburn v. Lumber Co., 13 Ont. 343; Houser v. Pearce, 13 Kan. 104; Hobbs v. Davis, 30 Ga. 423; Shepard r. Gas Light Co., 15 Wis. 318; Richardson v. Chynoweth, 26 Id. 656; Cockburn v. Lumber Co., 54 Id. 619; Bank v. Reese, 26 Penn. St. 143; Mc Hose v. Fulmer, 73 Id. 365. The rule contended for by defendants is inapplicable in all cases where the commodity contracted for is not kept for sale in the market, or where, as in the present case, the article is prepared for a special purpose. Lumber has a market price, but lumber of a particular grade, cut into strips for a special purpose, cannot be said to have such market price. Lumber is, however, an article of commou use, and its market price is so well established that it ought not to be difficult to determine its value in any shape at any point. The value, however, of lumber of a particular grade, cut into strips, ought not to be determined by taking lumber of a lower grade, and rejecting as waste all which does not conform to the required grade. Α shingle or a lath may be of clear stuff, but the value of either is not to be determined by cutting uppers into either, or by cutting up mill-run lumber, and rejecting all that does not come up to that grade. Here plaintiff bought four car-loads of mill stuff, and had it cut into strips, rejecting 48 per cent. as waste, and utilizing but 52 per cent., and now seeks to recover, upon furnish 300,000 not select lum that basis of cost, damages for failure to feet. It does not appear why plaintiff did ber of the grade named in the contract. In cutting the strips from the log, the experienced sawyer would probably have saved the 48 per cent. Plaintiff was justified in avoiding, so far as he could, the consequences of the breach, and in procuring the most available substitute in the manner open to him; indeed, it was his duty so to do; but it does not here appear that the demands of his business, or the situation of the lumber market, compelled or required him to procure the substitute in the manner procured. The difference between the cost of the strips substituted and the contract price would be the measure of damages only so far as such substitution was actually and in good faith made. If plaintiff's business was interrupted by reason of his inability to procure materials, another rule of damages would necessarily be resorted to; but the value of the material not supplied, and for which no substitute was procured, must be arrived at through persons qualified to judge, by determining what strips similar in kind, quality, and amount, cut from the log, would have cost or would have been worth at that time and place. The judgment must therefore be reversed, and a new trial ordered. LONG and GRANT, JJ., concurred with MCGRATH, J. HOOKER, C. J. (dissenting). If, as I understand from the record, the uncontradicted evidence tended to show that it was impossible to procure the lumber of the required. dimensions in the market, or to get it manufactured in any other way than to purchase rough lumber from which to manufacture it, though it cut to waste, the cost of so obtaining it might be the proper measure of damages. I think the judgment should be affirmed. MONTGOMERY, J., concurred with HOOKER, C. J. JOHN BRESNAHAN, ADMINISTRATOR, ETC., V., EMANUEL NUGENT. [See 59 Mich. 593; 70 Id. 52; 77 Id. 500; 92 Id. 76; 93 Id. 462.] Fraudulent conveyances-Action by administrator-Judgment-- 1. An administrator cannot, in an action under How. Stat. § 5884. to recover the value of goods conveyed by the decedent in fraud of creditors, recover interest thereon from the time of such transfer. 2. Where interest is erroneously included in a verdict, and the extent to which the error has increased the verdict is ascertainable by computation, the rights of the defendant can be fully protected by an abatement of that sum from the judgment, and the plaintiff will be given leave to remit such excess, upon which the judgment, as thus corrected, will be affirmed. Error to Kent. (Adsit, J.) Argued October 27, 1893. Decided November 10, 1893. Assumpsit. Both parties bring error. Judgment for plaintiff affirmed, on his remitting $652.75 for interest erroneously included in the verdict. The facts are stated in the opinion, and in 92 Mich. 76. J. H. Tatem, for plaintiff. Taggart, Wolcott & Ganson, for defendant. MONTGOMERY, J. The plaintiff, as administrator of the estate of Daniel Nugent, sues to recover the value of property which was transferred to defendant, Emanuel, in the life-time of Daniel. Plaintiff recovered a verdict and judgment of $1,600, and both parties appeal. The same case has once been before the Court, and is found reported in F97 359 99 50 97 359 s106 460 92 Mich. 76. The questions presented upon the appeal of the plaintiff, as well as some of those presented by the defendant, were determined upon the former appeal. It has also been determined in other proceedings between the same parties, involving the same transactions, that the transfer of the property here involved by Daniel to Emanuel was fraudulent as to creditors.' This question is res judicata, so that the only question which the jury had to deal with was the question of damages. Exceptions which were taken. to rulings which did not affect that question are not discussed by us. The instructions of the circuit judge permitted the jury to allow interest on the value of the goods from the date of the transfer from Daniel to Emanuel down to the time of trial. This we think was error. The transfer was good as against Daniel, and the creditor would be no more entitled to the use of the property or its accretions, or to interest on its value, prior to levy or to other proceedings to establish a lien, than he would have been had its custody remained with Daniel. The extent to which the error increased the verdict is ascertainable by computation, and the rights of the defendant can be fully protected by an abatement from the judgment. This course was suggested to counsel at the hearing, and the plaintiff assented that, in the event that the Court should be of the opinion that interest should not have been allowed, the interest improperly allowed might be deducted. Defendant's counsel declined to consent to this course, but insisted upon a reversal. We think there would be no propriety in reversing the judgment, nor in a new trial to correct an error the precise extent of which is so easy of determination by the Court. See Tuttle v. White, 49 Mich. 407. The plaintiff will have leave to remit from the judgment the excess above $947.25, and on his doing so the judg'See Nugent v. Goldsmith, 59 Mich. 593. ment will stand affirmed. The defendant will recover his costs in this Court, as in the case of a single appeal only. The other Justices concurred. 97 361 ALFRED WOLCOTT, PROSECUTING ATTORNEY OF KENT Elections-Right to vote-Inmates of Soldiers' Home-Authority of inspectors of election. 1. The Michigan Soldiers' Home is an asylum, within the meaning of section 5, art. 7, of the Constitution. which provides that * no elector shall be deemed to have gained or lost a residence * while kept at any alms-house or other asylum at public expense." 2. Where a soldier, at the time of his admission as an inmate of the Michigan Soldiers' Home, has a legal residence in a township other than that in which the home is situated, he does not lose such residence while he remains such inmate, and is not a legal voter in the latter township. 3. Where, by the law under which an election is held, the inspectors are to receive the voter's ballot if he takes the oath that he possesses the constitutional qualifications, the oath is the conclusive evidence on which the inspectors are to act, and they are not at liberty to refuse to administer it, or to refuse the vote after the oath has been taken; citing Cooley, Const. Lim. 617. Mandamus. Argued June 13, 1893. Granted November 10, 1893. Relator applied for mandamus to compel respondent to entertain a complaint and issue a warrant for an alleged violation of the election law. The facts are stated in the majority opinion. 98 516 |