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The codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) online

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19 P. 382, 383 (referred to); 80 C. 135, 137, 138, 22 P. 70, 71 (con-
strued); 85 C. 191, 192, 24 P. 656 (applied); 93 C. 59, 71, 28 P.
845, 848 (cited); 31 P. 263 (referred to); 97 C. 1, 6, 33 A. S.
157, 31 P. 1112 .(applied); 101 C. 411, 413, 35 P. 1024 (applied);
105 C. 284, 289, 290, 45 A. S. 40, 38 P. 903 (applied); 107 C. 262,
269, 40 P. 392 (cited) ; 44 P. 1018, 1019 (applied) ; 114 C. 447, 450, 46 P.
286 (cited); 121 C. 216, 218, 53 P. 559 (referred to); 57 P. 394,
395 (referred to); 132 C. 316, 319, 64 P. 409 (referred to); 138
C. 405, 414, 71 P. 506, 507 (construed); 139 C. 514, 518, 521, 73
P. 418 (construed with another section); 140 C. 357, 363, 364, 73
P. 1050 (construed); 142 C. 256, 260, 261, 100 A. S. 123, 71 P.
165, 75 P. 842 (cited and referred to); 151 C. 1, 15, 89 P. 1097
(assumed that "actual" means express — presumed malice is
closely assimilated to implied malice of criminal law) ; 5 C.
A. 126, 128, 89 P. 851 (cited — simple negligence does not justify
award of punitive damages).

As to damages for wrongs generally, see Kerr's Cyc. C. C.
§§ 3333 et seq. and notes.

As to malice, fraud, or oppression, generally, see Kerr's Cyc.
C. C. § 3294, note pars. 24-25 this note.

As to malice in conversion of wheat, see Kerr's Cyc. C. C.
§ 3294, note par. 35.

1616



TitJI.ch.I.art.IIL] EXEMPLARY. § 3294

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, post.

As to penal damages, see Kerr's Cyc. C. C. §§ 3344 et seq. and
notes.

Allowance of exemplary damages — In general. — See 27 A. D.
684-689; 50 A. D. 767-775; 28 A. S. 870-883.

Same — Against corporations. — See 28 A. S. 876, 877; 59 A. S.
589-609.

Same — Against municipal corporations. — See 59 A. S. 602.

Same — For wrongful injuries to animals. — See Kerr's Cyc. C.
C. § 3340 and note.

Same — For wrongful or malicious attachment. — See 68 A. S.
266-280.

Same — Liability of principal or master for act of agent or
servant. — See 62 A. D. 379-389.

Excessive damages as ground for new trial. — See Kerr's Cyc.
C. C. P. § 656 note subd. 5.

Libel or slander, how stated in complaint. — See Kerr's Cyc.
C. C. P. § 460 and note.



1617



§ 3300 CIVIL CODE. [Div.IV,Pt.I.

CHAPTER II.

MEASURE OF DAMAGES.

Article I. Damages for Breach of Contract, §§ 3300-3319.

II. Damages for Wrongs, §§ 3333-3341.

III. Penal Damages, §§ 3344-3348.

IV. General Provisions, §§ 3353-3360.

ARTICLE I.
DAMAGES FOR BREACH OP CONTRACT.

§ 3300. Measure of damages for breach of contract.

§ 3301. Damages must be certain.

§ 3302. Breach of contract to pay liquidated sum.

§ 3303. Dishonor of foreign bills of exchange.

§ 3304. Detriment caused by breach of covenant of seizin, etc.
What is.

§ 3305. Detriment caused by breach of covenant against en-
cumbrances, is what.

§ 3306. Breach of agreement to convey real property.

§ 3307. Breach of agreement to buy real property.

§ 3308. Breach of agreement to sell personal property, not paid
for.

§ 3309. Breach of agreement to sell personal property paid for.

§ 3310. Breach of agreement to pay for personal property sold.

§ 3311. Breach of agreement to buy personal property.

§ 3312. Breach of warranty of title to personal property.

§ 3313. Breach of warranty of quality of personal property.

§ 3314. Breach of warranty of quality for special purpose.

§ 3315. Breach of carrier's obligation to receive goods, etc.

§ 3316. Breach of carrier's obligation to deliver.

§ 3317. Carrier's delay.

§ 3318. Breach of warranty of authority.

§ 3319. Breach of promise of marriage.

§3300. MEASURE OF DAMAGES FOR BREACH OF
CO^'TRACT. For the breach of an obligation arising from
contract, the measure of damages, except where otherwise
expressly provided by this code, is the amount which will
compensate the party aggrieved for all the detriment proxi-

1618



Tit.II,ch.II,art.I.] MEASURE OF. § 3300

mately caused thereby, or which, in the ordinary course of
things, would be likely to result therefrom.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 266.

II
> See Kerr's Cyc. C. C. for 22 pars, annotation.

67 C. 406, 408, 7 P. 810, 812 (referred to); 67 C. 464, 466, 8
P. 40, 41 (construed); 89 C. 464, 466, 23 A. S. 488, 26 P. 967
(applied); 97 C. 490, 493, 32 P. 563 (applied); 98 C. 210, 214, 33
P. 53 (construed and applied); 100 C. 93, 97, 34 P. 625 (con-
strued and applied); 102 C. 55, 68, 41 A. S. 151, 36 P. 368 (cited);
103 C. 454, 458, 37 P. 466 (cited); 116 C. 239, 244, 48 P. 62 (cited);
130 C. 309, 314 (applied, but erroneously cited as § 3330), 62
P. 562, 563 (citation of §3300 omitted), 1058; 140 C. 339, 342,
73 P. 1055 (construed and applied); 148 C. 596, 600, 84 P. 43
(considered in action for breach of contract to organize cor-
poration and to issue stock); 150 C. 51, 56, 87 P. 1093 (distinction
between damages for breach of contract and damages for tort);
1 C. A. 429, 431, 82 P. 634 (libel — recovery of damages is not
limited to such as result from injury to business); 2 C. A. 170,
173, 83 P. 175 (applied to attached oil stock, purchased for
resale); 4 C. A. 488, 497, 88 P. 512 (applied to breach of lease
of personal property with option to purchase); 144 F. 886, 895
(applied with other sections — contract to furnish tin cans).

MEASURE OP DAMAGES.

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

Actual damages as basis for award of exemplary damages. — •
See 7 A. C. 896.

Against promoter of corporation. — See 18 L. N. S. 1131.

Against vendee for refusing to perform in contract to pur-
chase. — See 67 A. D. 275.

Conflict of laws concerning. — See 91 A. S. 714.

Eminent domain, what recoverable in the exercise of the
right of — Allowance of interest on value of property destroyed
by negligent construction of railroads, canals, etc. — See 18 L. 454.

Same — Amount recoverable by tenant and reversioner. — See 21
L. 217, 223.

Same — Benefits considered. — See 7 L. 289.

Same — Depreciation of neighboring property. — See S L. 330.

Same — Diminution in value for operation of trains. — See 9 L.
298.

Same — Effect of preserving to owner an estate, rights of ease-
ment.— See 26 L. 751-758.

Same — Expert testimony as to value and damages, conclusive-
ness of.— See 42 L. 767.

1610



§ 3300 CIVIL CODE. [Div.IV.Pt.I.

Same — In pollution of water as an element of for taking rail-
road right of way. — ^See 47 L. 782.

Same — In taking of water. — See 58 L. 253.

Same — In taking property for canal. — See 61 L. 841.

Same — Inconvenience caused.- — See 2 L. 217.

Same — Injury reasonably anticipated. — See 2 L. 218.

Same — Injury to easement of abutting owners. — See 14 L. 381.

Same — Injury to tract as a whole. — See 2 L. 218; 3 L. 84; 9
L. 98.' ■

Same — Market value. — See 3 L. 83; 11 L. 604; 12 L. 611.

Same — Profit or loss as affecting. — See 51 L. 320.

Same — Special damages. — See 2 L. 218.

Same — Taken for railroad purposes, generally, see 2 L. 219;
7 L. 409; 8 L. 330; 9 L. 299.

Same — Value of — Improvements made by one taking property.
—See 16 L. 805.

Same — Same— Land for its uses and purposes. — See 2 L. 219.

Same — Same^ — Tract cut off. — See 2 L. 219.

Same — What injuries not considered. — See 2 L. 218.

Expenses of care and nursing.- — See 5 A. C. 146; 10 A. C. 285.

For allowing land to become infected with weeds. — See 12
L. N. S. 88.

For an unconditional trespass. — See 54 A. R. 421.

For appropriation of mineral lands. — See 2 A. C. 966.

For breach of an executory contract. — See 42 A. D. 48.

For breach of contract — By carrier for carriage. — See 53 L. 84.

Same — Preventing operation of industrial business in con-
templation, but not established and in actual operation. — See
19 L. N. S. 155.

Same — To furnish water for irrigation. — See 19 L. N. S. 938.

For breach of contract of sale — As to, generally, see 2 A.
C. 997.

Same — Fixed charges. — See 2 A. C. 997.

Same — On contract for goods to be manufactured. — See 7 A.
C. 1172, 1175.

Same — On executory contract. — See 2 A. C. 814; 2 A. C. 997.

Same — Value at place of delivery. — See 9 A. C. 188.

For breach of covenant for quiet enjoyment. — See 53 A. S. 116.

For breach of warranty — In sales. — See 5 A. C. 586, 588; 7
A. C. 935, 937.

Same — Of title. — See 24 A. S. 266.

For carrier's loss of goods. — See 2 L. N. S. 773.

For carrying passenger beyond destination. — See 17 L. N. S.
1226-1230.

For causing death of a human being. — See 12 A. S. 375.

For conversion or failure to deliver household goods. — See 3
A. C. 891.

For damages to goods received for cold storage. — See 52 L. 108.

1620



Tit.ir,ch.II,art.I.] MEASURE OF. §3300

For death by wrongful act — As to, generally, see 3 A. C. 53;
6 A. C. 71.

Same — For death of parent or husband. — See 3 A. C. 98, 103.
Same — In suit by next of kin. — See 10 A. C. Ill, 113.
For enticement of servant. — See 5 L. N. S. 1100.
For fraudulent representations in the sale or exchange of
real estate. — See 8 L. N. S. 804; 16 L. N. S. 818.

For injury — To crops.— See 1 A. C. 761; 6 A. C. 946.
Same — To lateral and subjacent support. — See 5 A. C. 219; 10
A. C. 77.

Same — To or destruction of growing crops. — See 6 A. C. 949;
12 L. N. S. 267.

Same — To or destruction of trees or shrubbery in the value
for their timber or fire wood. — See 11 L. N. S. 930.

Same — To public land before homesteader receives patent. —
See 17 L. N. S. 958.

For loss or destruction of manuscript, legal papers, and the
like.— See 8 L. N. S. 369.

For mining and carrying away coal. — See 33 A. R. 282.
For negligence of telegraph company — As to, generally, see
1 A. C. 346, 359.

Same — Failure to transmit money. — See 7 A. C. 531, 535.
Same — Loss of professional fee. — See 5 A. C. 730.
Same — Mental anguish as an element of. — See 1 A. C. 349,
355; 2 A. C. 52; 7 A. C. 1068; also "Mental pain and suffering"
this note.

Same — Message showing damage will result. — See 5 A. C. 52;
10 A. C. 476.

Same — Necessity that damages for failure to transmit be con-
tomplated.— See 1 A. C. 361; 10 A. C. 479.

Same — Quoting selling price or offering bid. — See 3 A. C.
424, 429; 3 A. C. 712.

Same — Where rule declared by statute. — See 2 A. C. 52.
Same — Who may recover. — See 1 A. C. 35S; 10 A. C. 643, 648.
For personal injuries in action for bre.Tcli of w.nrr.inty. — See
5 A. C. 586. 588; 7 A. C. 935. 937.

For preventing exhibition or show by breach of contract of
carriage. — See 4 L. N. S. 569.

For purcliasor's refusal to accept goods speclflcnlly manu-
factured for him. — See 18 L. N. S. 613.

For servant's wrongful dlscliarge. — See 43 A. D. 209.
For the destruction of property having no market value at
the place of destruction. — See 9 A. C. 1148; 62 A. S. 791.
For the occasional flooding of land. — See 3 L. N. S. 873.
For wrongful cutting or destruction of standing timber. — See
18 L. N. S. 244-250.

For wrongful working of mine. — See 8 A. C. 36, 43.

1621



§ 3301 CIVIL CODE. [Div.IV,Pt.I.

In actions for breach — Of covenant of quiet enjoyment. — See
58 A. R. 606.

Same — Of covenant of seizor or good right to convey. — See 99
A. D. 73.

Same — Of warranty of soundness. — See 40 A. D. 303.

In actions of trespass or trover for property taken by mis-
take.— See 36 A. R. 770.

In eminent domain, etc. — Benefits set off against. — See 9 L. N.
S. 781,-837.

In trover — Wlien tlie value of the property has been enhanced
by the wrong-doer. — See 24 A. D. 70.

Same — ^Wliere tlie owner of a special interest is tlie plaintiff. —
See 50 A. D. 678.

Interest as an element of. — See 1 A. C. 761, 763; 4 A. C. 128;

6 A. C. 30; 8 A. C. 298.

Loss of profit on possible sales, for breach of contract where
no contingent sales have been affected. — See 8 L. N. S. 255.

Loss of time and earning capacity. — See 4 A. C. 205; 8 A.
C. 1107.

Market value of property — As to, generally, see 5 A. C. 216;

7 A. C. 591; 9 A. C. 1143.

Same — For loss or destruction of property having no market
value. — See 9 A. C. 1148.

Mental pain and suffering as an element of. — See 1 A. C. 346;
2 A. C. 55; 5 A. C. 578, 579; 6 A. C. 46; 7 A. C. 1068; 9 A. C. 1050,
1051; 10 A. C. 722.

On breach by vendee of executory contract for sale of land. —
See 4 A. C. 789.

On failure of title to property sold. — See 53 A. R. 788.

Pecuniary circumstances of the parties as affecting. — See 67
A. D. 562.

Profits, loss of, in actions for breacli of contract to sell. — See
42 A. R. 461.

Recovery . from landlord for injury to tenant for defect in
premises. — See 34 L. 831.

Vendee's damages in a breach of contract to convey real
property.— See 106 A. S. 963.

When lands are taken for public use. — See 88 A. D. 113; also
"Eminent domain" amount recoverable, etc.

Where lessee is prevented from taking possession where he is
afterward evicted by the lessor. — See 100 A. D. 428.



§ 8301. DAMAGES MUST BE CERTAIN. No damages can
be recovered for a breach of contract which are not clearly
ascertainable in both their nature and origin.

History: Enacted March 21, 1872.
1622



I



i



Tit.II,ch.II,art.I.] liquidated. §§3302,3303

See Kerr's Cyc. C. C. for 6 pars, annotation.

66 C. 536, 538, 6 P. 417 (construed with §1671); 101 C. 275,
280, 35 P. 865 (applied); 140 C. 339, 342, 73 P. 1055 (applied).

As to many nniscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

As to mental anguish as element of damages, see Kerr's Cyc.
C. C. § 3300 and note.



§3302. BREACH OF tONTRACT TO PAY LIQUIDATED
SUM. The detriment caused by the breach of an o1)ligation
to pay money only, is deemed to be the amount due by the
terms of the obligation, with interest thereon.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 5 pars, annotation.

76 C. 621, 623, 18 P. 796, 797 (cited) ; 79 C. 218, 223, 12 A. S. 139. 21 P.
743, 744 (applied) ; 89 C. 464. 466, 23 A. S. 488, 26 P. 9G7 (referred to
as inapplicable); 107 C. 577, 585, 40 P. 1026 (cited); 149 C. 32.
34, 84 P. 663, 5 L. N. S. 870 (referred to — action barred under
§339); 46 F. 355, 356 (scope and purpose of section).

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to tlie measure of dam-
ages, see note § 3300, ante.

Lesee's abandonment of premises during term. — See Kt-rr's
Cyc. C. C. § 3300 and note.

Liquidated damages. — See 27 A. S. 717.



§3303. DISHONOR OF F(M{EIG> BILLS OF EX( H VNOE.

For the dishonor of foreij^n bills of exchange the damages
are prescribed by sections thirty-two hundred and thirty-
five, thirty-two hundred and thirty-seven, and thirty-two hun-
dred and thirty-eight.

HiNtory: Enacted Marcli 21, 1872.

See Kerr's Cyc. C. C. § 3275 and note.

As to many miscellaneous matters as to damages generally,
see note § 3281. ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

1623



§§ 3304, 3305 CIVIL CODE. [Div.IV,Pt.I.

§3304. DETRIMENT CAUSED BY BREACH OF COVE-
NANT OF SEIZIJf, ETC., WHAT IS. The detriment caused
by the breach of a covenant of "seizin," of "right to convey,"
of "warranty," or of "quiet enjoyment," in a grant of an
estate in real property, is deemed to be:

1. The price paid to the grantor; or, if the breach is partial
only, such proportion of the price as the value of the prop-
erty affected by the breach bore at the time of the grant
to the value of the whole property;

2. Interest thereon for the time during which the grantee
derived no benefit from the property, not exceeding five
years;

3. Any expenses properly incurred by the covenantee in
defending his possession.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

70 C. 79, 84, 11 P. 505, 507 (applied); 136 C. 26, 29, 68 P. 321,
322 (cited).

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

Covenant for quiet enjoyment, effect and scope of covenant
and damages for breach, see 53 A. S. 113-120.

Damages for breach of covenant in deed. — See 1 A. D. 9, 10.



§3305. DETRIMENT CAUSED BY BREACH OF COVE-
NANT AGAINST ENCUMBRANCES, IS WHAT. The detri-
ment caused by the breach of a covenant against encum-
brances in a grant of an estate in real property is deemed
to be the amount which has been actually expended by the
covenantee in extinguishing either the principal or interest
thereof, not exceeding in the former case a proportion of
the price paid to the grantor equivalent to the relative value
at the time of the grant of the property affected by the
breach, as compared with the whole, or, in the latter case,
interest on a like amount.

History: Enacted March 21, 1872.
1624



Tit.II,ch.II,art.I.] BREACH OF AGREEMENT. §§3306.3307

§3300. BREACH OF AGREEMEXT TO COXVEY REAL
PROPERTY. The detriment caused by the breach of an
agreement to convey an estate in real property, is deemed
to be the price paid, and the expenses properly incurred
in examining the title and preparing the necessary papers,
with interest thereon; but adding thereto, in case of bad
faith, the difference between the price agreed to be paid
and the value of the estate agreed to be conveyed, at the
time of the breach, and the expenses properly incurred in
preparing to enter upon the land.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 8 pars, annotation.

55 C. 38, 41 (construed); 78 C. 529. 535, 21 P. 179 (referred to);-
81 C. 214, 215, 217, 2.2 P. 546, 547 (applied); 89 C. 474, 476, 26
P. 1073. 1074 (construed); 116 C. 515, 517, 48 P. 498 (construed
and applied); 121 C. 42, 46. 53 P. 642 (referred to); 123 C. 1.
5, 10, 69 A. S. 17, 55 P. 713, 43 L. 199 (cited); 61 P. 472, 475 (not
applicable to action to rescind contract of sale of land for fail-
ure of title); 147 C. 299, 302, 305. 81 P. 958 (construed with
S3386); 149 C. 122, 128, 84 P. 835 (applied — contra'ct for ex-
change of lands); 4 C. A. 354. 356. 88 P. 282 (applied — effect of
tender).

As to many miscellaneous matters as to damages generally,
see note § 3281. ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note $ 3300, ante.

Contracts for sale of land — Defective title. — Sec 20 A. S. 217.

Damages recoverable on breach of warranty of title. — See 24
A. S. 266-268.

Measure of damages for broach of contract to convey realty. —
Sec 100 A. D. 467. 468.

Presumption that breach cannot be adequately relieved by
money compensation. — See Kerr's Cyc. C. C. S 3387 and note.

Recovery back of purchase money where vendor falls to niak<'
deed. — See Kerr's Cyc. C. C. i 1731 and note.

S3307. HKi:V( II OI A(iREE.ME>T TO HIV HKAl, IMMM'-
ERTY. The detriment caused by the breach of an agree-
ment to i)urchase an estate in real property, is deemed to
be the excess, if any. of the amount which would have been
due to the seller, under the c<mtrart. over the value of the
l)roperty to him.

IliNtory: Enacted Xrurch 21. 1872.
1625



§§ 3308, 3309 CIVIL CODE. [Div.IV.Pt.I.

See Kerr's Cyc. C. C. for 3 pars, annotation.

87 C. 443, 450, 22 A. S. 257, 25 P. 749, 751 (construed); 123 C.
1, 5, 10, 69 A. S. 17, 55 P. 713, 43 L. 199 (cited); 125 C. 563, 567,
58 P. 130 (referred to); 138 C. 100, 104, 70 P. 1082, 71 P. 438
(cited in dis. op.).

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

Damages recoverable upon breach of contract by purchaser. —
See 24 A, S. 128.

Forfeiture of partial payment by purchaser. — See 42 A. S.
417, 418.

Measure of damages against purchaser for refusing to per-
form his contract for purchase of land. — See 67 A. D. 275-283.

§3308. BEEACH OF AGREEMENT TO SELL PERSONAL
PROPERTY, NOT PAID FOR. The detriment caused by the
breach of a seller's agreement to deliver personal property,
the price of which has not been fully paid in advance, is
deemed to be the excess, if any, of the value of the property
to the buyer, over the amount which would have been due
to the seller under the contract, if it had been fulfilled.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 7 pars, annotation.

67 C. 477, 479, 8 P. 17, 18 (construed and applied); 1 C. A. 511.
513, 82 P. 562 (applied — contract to sell electric power); 144 F.
886, 895 (applied with other sections — contract to furnish tin
cans).

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to inany miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

Measure of damages for breach of contract to deliver goods
sold. — See 62 A. D. 136, 137; 63 A. D. 476, 477.

Presumption that breach can be adequately relieved by money
compensation. — See Kerr's Cyc. C. C. § 3387 and note.

§3309. BREACH OF AGREEMENT TO SELL PERSONAL
PROPERTY PAID FOR. The detriment caused by the breach
of a seller's agreement to deliver personal property, the price
of which has been fully paid to him in advance, is deemed
to be the same as in case of wrongful conversion.

History: Enacted March 21, 1872.
1626



Tit.TI,ch.TI,art.I.] BREACH OF AGREEMENT. §§ 3310, 3311

See Kerr's Cyc. C. -C. for 4 pars, annotation.

96 C. 152, 154, 30 P. 1114 (referred to as inapplicable).

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

Presumption that breach can be adequately relieved by money
compensation.— See Kerr's Cyc. C. C. § 3387 and note.

§3310. BREACH OF AGKEEMEM TO PAY FOR PER-
SOXAL PROPERTY SOLD. The detriment caused by the
breach of a buyer's agreement to accept and pay for personal
property, the title to which is vested in him, is deemed to be
the contract price.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 2 pars, annotation.

As to many miscellaneous matters as to damages generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-
ages, see note § 3300, ante.

§3311. BREACH OF AGREEMENT TO BUY PERSONAL
PROPERTY. The detriment caused by the breach of a
buyer's agreement to accept and pay for personal property,
the title to which is not vested in him, is deemed to be:

1. If the property has been resold, pursuant to section
three thousand and forty-nine, the excess, if any, of the
amount due from the buyer, under the contract, over the net
proceeds of the resale; or,

2. If the property has not been resold in the manner pre-
scribed by section three thousand and forty-nine, the excess,
if any, of the amount due from the buyer, under the con-
tract, over the value to the seller, together with the excess,
if any, of the expenses properly incurred in carrying the
property to market, over those w^hich would have been
incurred for the carriage thereof, if the buyer had accepted it

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 10 pars, annotation.

77 C. 139, 143, 144, 12 A. S. 63, 19 P. 260, 261 (applied); 90 C.
515 5''0 27 P. 373, 374, 375 (referred to as inapplicable); 94

1627



§§3312,3313 CIVIL, CODE. [Div.IV.Pt.I.

C. 5, 17, 29 P. 406, 409 (construed and applied); 106 C. 441, 446,
447, 448, 39 P. 853 (cited) with §§3287, 3288, 3353, 3357); 109 C.
242, 248, 41 P. 1020 (cited); 120 C. 416, 420, 52 P. 666 (referred
to); 143 C. 436, 438, 77 P. 144 (applied); 144 C. 81, 84, 77 P. 771
(cited); 1 C. A. 241, 243, 81 P. 1086 (applied — contract to buy
prunes); 2 C. A. 312, 314, 84 P. 356 (subd. 2 applied with § 3353—
contract to buy crop of oranges); 4 C. A. 288, 290, 87 P. 1101
(applied — sale of business — remedy of vendor).

As to many miscellaneous matters as to damag'es generally,
see note § 3281, ante.

As to many miscellaneous matters as to the measure of dam-



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