I. At tne term at which tbe cause was tried tbe plaintiff made an application for a continuance, which was overruled, and this ruling is assigned as error. In passing upon applications for continuances, so much is left to tbe discretion of tbe court below, that this court will not interfere unless it is made clearly to appear that such discretion has been abused. Upon an examination of tbe record before us, it does not appear that tbe district court abused its discretion in overruling plaintiff’s application.

II. On tbe trial tbe court charged tbe jury as follows: “ If you find tbe defendant entitled to recover damages on account of tbe fraud of plaintiff; that by such fraud be was deceived into taking more lumber than be otherwise would, tbe proper measure of damages will be tbe difference between what be paid plaintiff for such excess under the contract, and what be could have procured it to be placed in the yard for himself at tbe time sale and delivery was completed.”

*136It is insisted that this instruction does not embody the true rule of damages in the ease.

The well-settled general rule of damages for failing to deliver personal property at a specified time and place is the difference between the contract price and the market price at the time and place of delivery. Cannon v. Folsom, 2 Iowa, 101, and cases cited; Boies & Barret v. Vincent, 21 id. 387; Jemison v. Gray, 29 id. 537. The rule is one of compensation for what is supposed 'to be the real loss to the party injured. If the purchaser has not paid for the articles to be delivered, he can, with the money in his pocket, go into the market and supply himself with the same articles from another vendor; and if the market price has enhanced in the mean time, so that he is compelled to pay more, he is damaged to the amount of this excess and no more. Where the articles contracted for have been paid for in advance of the time for delivery, a different rule obtains. See cases before cited. The case before us is not for a failure to deliver, but for fraudulently inducing defendant to receive and pay for more lumber than he agreed to purchase of plaintiff. Does a different rule of damages apply ? The price at which defendant agreed to take the lumber in the yard at the time of the contract was twelve per cent less than Washington prices, which we understand to be the retail prices of lumber in that city. At the time of making the contract and up to the time of receiving the lumber, defendant had paid no money thereon. If plaintiff had put in no more lumber than defendant had agreed to purchase, the latter could then, at the time of the delivery, have gone into the market and purchased any additional lumber at market prices, and if such market prices were less than the contract price at the time that defendant was deceived into receiving the additional lumber and paying for it, at the contract price, the defendant was injured just to the extent of this difference. So that it would seem the same rule of damages would apply as in case of a failure to deliver goods purchased, but not paid for before the time of delivery.

But it is insisted that this is not a claim for damages for the *137breach of a contract, but for frcmd. True, the injury to defendant consisted in deceiving him into receiving and paying for lumber at twelve per cent, less than Washington prices, but which, without the fraud, he might have purchased at the ma/rket price. The difference would, therefore, compensate him for the fraud committed. This claim on the part of the defendant is for a breach of contract, for a fraudulent breach it is true, but the rule of compensation is generally applied in actions ex contractu, without regard to the motives which induce the violation of the agreement. To. this general rule there are exceptions in breaches of contracts to convey real estate. Ryder v. Thayer, 3 La. Ann. 149; Sedgwick on Meas. Damages, marg. page, 207.

We think the instruction given by the court was calculated to mislead the jury in not limiting the measure of damages to the difference between what the defendant paid for the excess of lumber over what was in the yard at the time of the contract, and what he could have procured it at the ma/rket price, to be placed there at the time of delivery. It is contended by appellee’s counsel, that this is the real meaning of the instruction. We think that it is at least equally susceptible of being understood to allow a recovery for the difference between the price paid by defendant and what, by reason of some peculiar advantages, which he possessed, and which were not common to others, he could have procured the lumber to be placed in the yard for, and which was or might have been much below the market price.

Again, it is urged on the part of appellee, that since the record contains none of the evidence on this subject, this court will not presume that the defendant recovered more than he was entitled to under the correct rule of damages as above stated. On the contrary, we will presume in the absence of a contrary showing, that there was evidence to which the instruction was applicable, and it being erroneous, at least in that it was calculated to mislead the jury to plaintiff’s prejudice, the judgment must be reversed and the cause remanded.

dissenting. — I cannot concur in the conclusions of the foregoing opinion. It applies to the fraudulent delivery to the vendee of personal property which is not purchased, the same measure of damages which applies to the failure to deliver property purchased.

To my mind there is no authority for such an application. The rule which is adopted in case of the failure to deliver is, as the majority opinion states, one of compensation for what is supposed to be the real loss. A party contracts for the purchase and delivery of property at less than the market price. The vendor refuses to deliver. The purchaser goes into the market and purchases at the market price, paying more than he contracted to pay. In an action against his vendor he recovers the difference between what he paid and what he agreed to pay, and thus he is, in the eye of the law, fully compensated, placed in the same position that he would have been in if his vendor had complied with his contract. If he made a good bargain he gets the full benefits of it.

In this case the defendant purchased the lumber in the yard, with the trade in the same. His purpose appears to have been to possess himself of plaintiff’s business, and to that end he agrees to take the stock on hand at a price specified. It is, however, expressly understood that plaintiff shall add no more lumber to the yard. It may be that defendant has a contract under which he can fill up the yard at a price much less than he agrees to pay plaintiff, and because of this he exacts from plaintiff an agreement not to add any more lumber. The plaintiff fraudulently introduces a large quantity of lumber into the yard, and has it invoiced to defendant. The majority opinion holds that his measure of damage is not the difference between what he agreed to pay plaintiff, and what he could supply the yard for under his contract, but the difference between what he agreed to pay plaintiff and the market price at the time and place of delivery.

Thus a rule of damage which was intended to, and which does in the class of cases to which it is properly applicable, afford a party the full benefit of his contract is applied to this *139case, in which, it may have the effect of denying to the party those benefits. A bare statement of the facts of this case, it seems to me, shows the utter inapplicability to it of the measure of damages applied to the failure to deliver property sold. To my mind the court gave the proper measure of damage. It is the difference between what defendant paid plaintiff for the excess, and what he could himself have procured it to be placed in the yard for at the time the sale and delivery was completed.

If the evidence did not show that defendant could have procured it at less than the market price, of course the difference between the market price and what he agreed to pay would constitute his measure of damage. If it appeared from the evidence that he had a contract by which he could supply it for much less than the market price at the time of delivery, the rule given by the court allows him the benefits of that contract.

The error of the majority, it seems to me, is in applying to the case in hand a rule of damages intended for a class of cases to which it bears no analogy, and which, when applied to it, produces a result entirely variant from that which the rule was intended to accomplish.

For these reasons I do respectfully, yet most earnestly dissent.