The following opinion was filed October 12, 1926:

The appellant claims that it is entitled to damages by reason of the defendant refusing to receive *496and pay for the carload of honey ordered through the defendant’s broker from the plaintiff. The evidence before this court is substantially all in writing and consists of letters and telegrams passing between the defendant, its broker, and the plaintiff. A careful examination of these documents makes it ver}'- clear what the actual contract was and how the dispute occurred. The defendant gave its order to the broker to purchase 450 cases of honey. The defendant wanted 450 cases and • the broker so understood, but through an error of the stenographer the order was for 450 tins, or half of the defendant’s requirement. The plaintiff filled the order for 450 tins, and then the broker discovered the mistake and ordered the balance of the honey required by the defendant. The plaintiff filled this order in a second car and sent it on. When this second car arrived at Milwaukee, the defendant, for the first time, refused to accept the shipment or pay the draft. .The whole correspondence shows absolute good faith on the part of the plaintiff and good faith on the part of the broker. The testimony of the broker at the trial plainly indicates that there was no misunderstanding as to the. amount of honey wanted by the defendant,at any time, until after the second car had been shipped. The testimony offered in behalf of the defendant is equally conclusive that the defendant wanted 450 cases of honey, and that it directed its broker to procure that amount. Mr. Horter, in behalf of the defendant, testified:

“I ordered 450 cases — that is what I wanted, but the confirmation was very confusing to me. . . . That is where the mistake was made, ordering 450 60-pound tins at 18c— that is one half of our order. Somebody made a mistake. That is undoubtedly where the misunderstanding arose. We had instructed the broker that we would take 450 cases and instead of that he ordered 450 tins. . . . The one point which I did not understand in this letter is this — I received an invoice calling for 225 cases, which constituted *497one car, together with this letter thanking me for the order. This constituted only one half of the order. I naturally wondered what happened to the other part of the order, so I advised Hilfer and he tried to straighten it up.”

The fact is that the broker did straighten it out by explaining to the plaintiff that the order should have been for 450 cases, and that the defendant wanted 450 cases. The broker was the agent for the defendant in ordering the honey, and it was no fault of the plaintiff that there was a mistake in the broker’s original order. The defendant was in no wise damaged because the honey was shipped in two cars instead of one. The price was the same. It is clear that the defendant breached its contract in refusing to accept' and pay for the second car of honey.

Upon the refusal of the defendant to accept the second car, the plaintiff ordered the broker to dispose of the car elsewhere, but received word from the broker that he could, not make the sale. In order to save the demurrage charges the plaintiff ordered the honey stored in a warehouse, and tried to sell the same through another broker, but was unsuccessful. The plaintiff, not being able to dispose of the honey through a broker, sent its agent on from Utah to dispose of the honey. He was successful in selling the honey at the same price at which the defendant had contracted, but he had to give sixty days’ time and had to pay the storage and demurrage charges, together with his expense for the trip. The interest charge by reason of refusal to accept the honey, and consequent delay in final disposition thereof, amounts to $90.56.. Also, there was a necessary allowance to the purchasers for shortage and damage in transit. These items,, after giving credit for the amount received for the honey, leave a balance of $568.66, loss to the plaintiff.

The' defendant contends that the plaintiff sold the honey *498for the same price that defendant was to pay, and hence there is no damage. The rule of damage is given in the Uniform Sales Act, c,h. 121, Stats., as follows:

“Section 121.64 (1) .. .

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

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

The testimony disclosed that there was no available market for the honey at the time in question. The plaintiff tried to secure a salé of the honey through the defendant’s own broker and failed, and then tried to secure a sale through another broker and failed. This created a special circumstance, which takes the case out of sub. (3) and leaves the damages to be fixed finder sub. (2). The plaintiff was required to use its best'" judgment in disposing of the honey. ' There is no question but it did so. The loss and expense were the result of defendant’s breach of contract. It seems that the actual damages of the plaintiff, as stated, directly and naturally resulted, in the ordinary course of events, from the buyer’s breach of contract, and the buyer is bound to respofid accordingly. ’ •

The defendant asks for a review of the judgment of the circuit court, and contends that it is entitled to a judgment for $45.10 overpayment. Defendant contends that it should be required to pay only the actual freight, which was less than the freight rate from Provo. We think theré is no dispute as to the custom of the trade, and we think the defendant fully understood it. Certainly if the shipment had been from a point where the freight rate was greater than *499that from Provo, it would have refused to pay the additional charge. We think the judgment of the circuit court on the first count was correct.

There is no substantial dispute as 'to the facts, and no good purpose will be subserved by ordering a new trial.

By the Court. — The cause is remanded, with directions to affirm the judgment of the circuit court on the first count in the complaint, and to grant judgment in favor of the plaintiff on the second count, in the sum of $568.66, with interest and .costs.

A motion for a rehearing was denied, with $25 costs, on January 11, 1927.