Levy

Plaintiff recovered judgment upon several causes of action for damages for the breach of several executory contracts for the purchase of personal property. Prior to the time when delivery was had under the contracts the defendant repudiated each and all of the contracts. Within due time plaintiff made a valid tender of all the property sold and the defendant refused to accept delivery, denying all liability under the contract. Thereafter, and without notice to the defendant, the plaintiff resold the property, at private sale. In each cause of action the plaintiff pleaded the execution of the contract, performance on the part of plaintiff, the tender and defendant’s refusal to accept delivery thereof, the market value of the property at the time and place when and where delivery should have been made, and the difference between its market value and the contract price, for which sum plaintiff prayed and recovered judgment.

On this appeal the defendant urges that because of the 'tender made by the vendor title actually passed to the vendee. From this it is argued that plaintiff’s measure of damages is the contract price in accordance with the provisions of section 3310 of the Civil…