Ogden against Marshall, 1 Seld. Notes 125

In December, 1846, the defendant agreed to convey 12,000 bushels of corn for the plaintiff, in the packet ship Yorkshire, to sail on 16th of January following, from New York to Liverpool, for the price of 16 pence sterling per bushel. The defendant afterwards refused to perform the contract; and this action was brought to recover damages for the breach of such contract. It was proved that before the sailing of the Yorkshire, freight rose to 19 pence sterling per bushel.

It was not proved that the plaintiff had any corn to ship, or that he offered to ship any by the Yorkshire, and on this ground the judge charged the jury that the plaintiff was entitled to only nominal damages, and the jury found accordingly. The Court of Appeals reversed the judgment and ordered a new trial, on the ground that the plaintiff was entitled to recover the difference between the price of the freight agreed upon, and the price at the time when the ship was to receive the corn.

That the refusal of the defendant excused the plaintiff from offering the corn, and it was not necessary for him to prove that he had it on hand. (S. C., 8 N. Y. 340.)