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The opinion of the Court was delivered by

Rogers, J.

The value of the article, at or about the time it is to be delivered, is the measure of damages in a suit by the vendee against the vendor, for a breach of the contract. This principle is ruled in Meason v. Philips, (Addison 346); is recognised in Edgar v. Boies, (11 S. & R. 452); and is, in effect, affirmed by all the authorities cited. Indeed, the general principle is not denied, but it is contended that this is an exception; that the rule holds good only when the purchase money has not been paid; but that when the purchase money has been advanced by the vendee, the measure of damages is the sum paid, or the value of the article which forms the consideration of the contract. But, for this distinction, no authority has been cited except a dictum (doubtless entitled to great respect) of Chief Justice Marshall, in Shepherd v. Hampton, (3 Wheat. 204). After affirming the general principle, he adds, “ for myself only I can say, that I should not think the rule would apply to a case where advances of money had been made by the purchaser under a contract; but I am not aware what would be the opinion of the court in such a case.” Taking the remarks of the Chief Justice in the broadest sense, and supposing them to be directly applicable to the case in hand, (of which there is some room to doubt), it is very evident that he failed to advert to the difference between a suit on the contract itself, and a suit grounded on the recision of the contract. But this distinction, which pervades all the authorities, governs the whole case; for the purchaser may declare specially for the breach of the contract, or simply for money had and received, to recover back the deposit, if any be made, or the purchase money if it be paid; or he may join both causes of action in the same declaration. And when this is done, it is granted that, under the money count, the money advanced may be recovered back; or where a specific article has been given in satisfaction, the purchaser may, when default is made, elect to consider the contract at an end, and recover the article itself, or its value, from the vendor. But, on the other hand, where the purchaser declares specially for breach of the contract, and thereby affirms it, the only rule of damages is the value of the article at or about the time it is to be delivered. The point we are now considering is virtually decided in 1 Dyer 82, h. The case was this: One is to pay at such a day'five quarters of wheat; at the day of *110the contract they were worth fifty pounds, at the day of payment five pounds. ‘ The judgment shall be that he recover five quarters of wheat, or five pounds. And the defendant may deliver the wheat, if' he pleases; but the sum of money ought of necessity to be referred to the day; for if the twenty pounds are to be paid, they cannot be paid but as they are at the time, for money is its own measure; otherwise it is of corn. Although it is not expressly said, yet it is evident from the report of the case, that the money had been paid, or other satisfaction made, for the wheat by the vendee; yet it did not occur to the court, or any other person, that this altered the rule of damages. Where the vendor fails to deliver the article bought, the purchaser may elect to rescind the contract and recover back the money paid, or he may bring suit on the agreement, and recover the value at or about the time it ought to have been delivered. And this is a just rule; for if it has risen in value, he has the advantage of the increased price; if it has decreased, why should he, when he adheres to the contract, recover .more from the vendor than for the injury he has sustained by the non-performance of the agreement'( And the vendee has the less reason to complain, because he may, as before stated, rescind the bargain, and place himself in the same situation as before it was made. It is said that the vendor is, in the case supposed, in default; and this is true; but where there is any circumstance of aggravation, (which is rarely the case), the jury may do justice by a liberal estimate of the value of the goods. It has been suggested that the contract, on failure of the vendor to perform his part of it, is ipso facto rescinded; but this is a novel idea, for it can be rescinded only with the assent of the vendee, who may, in a given case, elect to consider the agreement at an end. And in the latter case, that is, where the purchaser agrees that the contract be rescinded, the remedy against the guarantor is gone; for it is only on the footing of subsistence of the contract between the vendor and vendee, which he guarantees, that he is liable. This is so plain, as not.to need the aid of argument. It is very true that a deposit, or even the interest on a deposit, may in certain cases be recovered on a special count against the vendor. But these cases form rather the exception than the rule. Usually, the damages sustained are much less than the deposit; and besides, this is necessary, for otherwise it could not be recovered at all against the vendor, who has not received the money—the deposit being in the hands of the auctioneer, and he alone is liable for money had and received. Besides, the cases cited are on sales of lands by auctioneers, and the same rules cannot hold as on the sale of chattels ; for lands, unlike stocks, &c., have no market value. There is nothing in the suggestion that the agreement takes the case out of the general rule. The suit is brought for breach of an agreement, the performance of which the defendant agreed to guarantee. It is, therefore, from necessity, a suit in affirmance of the contract. *111The defendant agrees, in effect, that if the vendor fails to perform the agreement, he will pay the value of the trees at the time they ought to have been delivered.

Judgment reversed, and a venire de novo awarded.

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