holding an exclusive patent right to make and sell. The measiu^ of
damages is the contract price.^

(e) The contract price and the market price are the same. Only
nominal damages can be recovered.^

In executory contracts of manufacture, the value may be
determined by the cost of production.
Illustration.
Contract to take a large quantity of silicate of soda, to be manu-
factured by vendor. On breach by purchaser, there being no
market, the vendor's measure of damages is the difference between
the contract price and the cost of production.*



Time of Bkeach. Refusal to perform in advance. —
The question of the time of breach becomes of importance
when either party gives notice of refusal to perform in advance.
In the case of an executory contract, when one party definitely
refuses to perform or puts it out of the other's power to perform,
the latter may sometimes sue before the time fixed for perform-
ance.' He will then be entitled to such damages as would have
arisen from the non-performance of the contract at the appointed

' Bany v. Cavanagh, 127 Mass. 394; ace. Vogt v. Schienebeck, 122 Wis.
491; 67L. R. A. 756.
' Allen V. Jarvis, 20 Conn. 38.
» Foos V. Sabin, 84 III. 564.
* Todd V. Gamble, 148 N. Y. 382; 52 L. R. A. 225.
» Hoohster v. De la Tour, 2 E. & B. 678; Synge v. Synge, [1894]
1 Q. B. 466; Lewis v. Tapman, 90 Md. 294; 47 L. R. A. 385.
