delivered the opinion of the Court:

This case differs from the others between these parties, decided at the present term, in this respect: The corn was bought by Fallis from Ludington & Rood, but not paid for at the time. On the 2d of May, there being a dispute as to the liability of Cobb, Christy & Co. for the corn, Rood went to see them in Cincinnati, and they there paid him $15,000, under an agreement that Ludington & Rood should take back all rejected corn. Ludington & Rood did so; and the question now is, what is the measure of damages in this suit against the railway company for non-delivery of the rejected corn ? The transaction at Cincinnati was the same as if Cobb, Christy & Co. had re-sold to Ludington & Rood all rejected corn at what it cost the former. It is plain that the only damage suffered by Cobb, Christy & Co. was the loss of what their profits would have been on the rejected corn if it had arrived in proper time and order. They now claim to charge the railway company for the rejected corn at the price which they were to receive from the government, less the market value of the rejected corn, instead of deducting from the contract price the amount received by them on the re-sale to Ludington & Eood. On what ground they can insist on charging the railway company with their contract price for sound corn, and on crediting it with only the market price for rejected corn instead of what they realized on the rejected corn, we do not comprehend. The correct rule of damages was given to the jury by the circuit court in the first instruction for the defendant, which the jury seems to have disregarded.

On the trial of this case, and in one of the others, the defendant introduced in evidence a certified copj’ of a petition presented to the Court of Claims at Washington, by the plaintiff Cobb, in whose name the contract for the sale of the corn was ma.de with the government, asking for judgment against the government for $80,845,53, on the ground that it had wrongfully refused to receive the corn under the contract. This contract has been set out in an opinion filed in another of these cases (ante, p. 128). This petition was signed and sworn to by Cobb on the 28th' of July, 1869, and contains, among other things, the statement that he had on hand at Cairo the full amount of grain due under the contract, and tendered it, according to the terms of the contract, to the quartermaster, who required the petitioner to hold it for the government, promising to receive it from time to time, until on or about the 11th of April, 1865, he finally refused to receive it altogether.

We must accept this sworn statement as true. If it is not true, Cobb was not only guilty of perjury, but attempting, by this proceeding in the Court of Claims, to defraud the government out of a large sum of money.. We can not suppose he would wish to be considered as preferring the latter alternative. This statement being true, it takes from the plaintiffs all pretence of a right to recover damages based .on the sale to the government. They had other corn at Cairo to fill that contract, and tendered it in vain. They therefore lost no profits on that contract because the corn in controversy in these suits did not reach Cairo in reasonable time, and can only recover damages based on the market value. The petition in question states the'precise quantity of corn left by the quartermaster on Cobb’s hands, to wit: 124,378 bushels.

In this .case, therefore, there seems to be no right of recovery at all, unless it can be shown that the market price for good corn at Cairo, when this corn ought to have arrived, was greater than the price at which the plaintiffs resold to Ludington arid Rood.

The judgment is reversed and the cause remanded.*

Judgment reversed.