The defendant claims that the relation between the plaintiff and the defendant was that of principal and broker and not that of buyer and seller; that under all the facts and circumstances plaintiff was in good faith bound to advise the defendant of the changed condition of the market due to the declaration of war in Europe; that there was no contract between the parties for the purchase and sale of the cheese; that the date as of which the damages should be determined is August 17 th, the day on which the defendant wrote the letter canceling plaintiff’s order, and not August 19th, the day on which the letter was received by plaintiff.

Plaintiff excepted to the finding of the court as to the amount of damages and asked for a review and modification *522of the judgment under the provisions of eh. 219, Laws 1915 (sec. 3049a, Stats. 1915).

We think the trial court was right in finding that the relation which existed between the plaintiff and the defendant was that of buyer and seller and not that of principal and broker. Defendant’s letter of July 16th seems to set this question absolutely at rest. Defendant says: “We do not wish to make any shipments on consignment, as we always have more or less trouble with this kind of business.” But even if this were not true, the transaction between the plaintiff and the defendant, commencing with the telegram of the plaintiff dated August 3d and closing with defendant’s letter of August Jth, constituted a contract for the sale and purchase of goods as found by the court. The defendant breached his contract under a mistaken idea that he had a right to do so for the reason that “so long as you pay no money down on any contract the contract is not lawful.”

The only question remaining is that relating to the measure of damages. The defendant having refused to deliver the goods and the title thereto not having passed to the plaintiff, the measure of damages, in harmony with the decisions of this court, is stated by the Uniform Sales Act as follows:

“Section 1684t — 67. 1. Where the property in the goods .has not passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for nondelivery.

“2. The measure of damages is the loss directly and naturally resulting in the ordinary course of events, from the seller’s breach of contract.

“3. Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.”

The court found the market price on August 19th, the day the plaintiff received the defendant’s letter in which the de~ *523fendant stated that he would not deliver the goods, to be for No. 1 cheese 20 cents a pound, and for No. 2 16-£ cents a pound, and found that the amount designated in the telegram was twenty-five tubs of No. 1 and just enough No. 2 to make 20,000 pounds. This would require the shipment of a part of a tub, which is not shown to be usual or practicable. Plaintiff claims that it was entitled to receive twenty-five tubs of No. 1 and five tubs of No.. 2, basing the claim upon the statement made by the defendant at the trial that that was what hé would have shipped had he filled the order. •

Defendant’s proposition was: “Offer you good sound number two at thirteen to make minimum car.” To which plaintiff replied: “Complete minimum car with twos per your wire.” The term “minimum car” refers to the smallest amount of the specified article which will take the carload rate, and is shown in this case to be 20,000 pounds on cheese east bound. Under the terms of this contract we think that plaintiff would not have been required to accept more than' the amount stated. Plaintiff therefore was entitled to receive 19,375 pounds of No. 1 and one tub of No. 2 to make out a carload lot, or 775 pounds of No. 2.

While the trial court found the market price, it appears from all the evidence without dispute that there was in fact no market for cheese in or about Brodhead, the place of delivery, or in or near southern Wisconsin, in the latter part of August,"1914. The defendant himself testified:

“On account of the war you know we simply had no market price through our section in the Swiss cheese.” “The farmers got hold of theirs and they would not sell at any price, and some that had sold it backed out on it.” “We could not get any what we had bought.” “Por ten days or two weeks you could not get it at any price, no matter what you offered.”

Another witness testified: “There wasn’t practically any market there. It was in such a fluctuating state,” and the testimony of all of the other witnesses is substantially to the same effect. There was some evidence as to deliveries made during the latter part of the month, mostly on orders taken *524earlier, but a careful examination of the evidence shows that there was no market at the time and hence there could be no market price. Market price is not an imaginary, fictitious thing, but is the price at which goods are actually being sold in the market at the time or times in question.

The burden was upon the plaintiff to establish the amount of its damages. This it did by showing that there was no available market in which the cheese could be purchased and that it was obliged to pay for 6,500 pounds of No. 1 cheese 20 cents a pound, and for 12,875 pounds of No. 1 cheese 23 cents a pound, in order to fill contracts which it had made with its customers. This made a prima facie case for the plaintiff. If the damages could have been minimized by purchase of the cheese in the open market, the burden was then upon the defendant to show that there was such an available market in which the goods could have been purchased. As has been said by this court, “The idea that there can be a real, substantial market price for a given commodity, when there is no such commodity for sale in the market, is absurd.” Cockburn v. Ashland L. Co. 54 Wis. 619, 12 N. W. 49. The defendant in this case made no such showing, and, as has been pointed out, it was, on the contrary, established that no market existed.

The trial court therefore was in error in assessing the damages at the difference between the contract price and the so-called market price. The rule stated in sub. 3, sec.'1684¿— 67, Stats., can only be applied under the conditions therein prescribed. In other cases where the property in the goods has not passed to the buyer, and the seller refuses to deliver the goods, the rule laid down in sub. 2 establishes the measure of damages, which is the loss directly and naturally resulting-in the ordinary course of events, from the seller’s breach of the contract. Cockburn v. Ashland L. Co., supra; Foss v. Heineman, 144 Wis. 146, 128 N. W. 881.

The evidence in this case shows that the plaintiff purchased 6,500 pounds of No. 1 cheese at 20 cents, and was *525obliged to pay for the remainder, 12,815 pounds, 23 cents a pound, and that the lowest price quoted for 715 pounds of ISTo. 2 was 17 cents a pound. It does not clearly appear whether plaintiff purchased the 115 pounds at that price or not, but he might have done so. On this basis the plaintiff was entitled to judgment for the sum of $1,095.37, with interest from August 19, 1914.

By the Gourt. — The judgment appealed from should be ' modified as stated in the opinion, and as so modified it is affirmed with costs to the respondent.