(1) Subject to subsection (2) of this section and to the provisions of this article with respect to proof of market price (section 4-2-723), the measure of damages for nonacceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price, together with any incidental damages provided in this article (section 4-2-710), but less expenses saved in consequence of the buyer's breach.
(2) If the measure of damages provided in subsection (1) of this section is inadequate to put the seller in as good a position as performance would have done, then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this article (section 4-2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.
Source: L. 65: p. 1338, § 1. C.R.S. 1963: § 155-2-708.
ANNOTATION
Annotator's note. Since § 4-2-708 is similar to repealed § 121-1-64, CRS 53, and CSA, C. 143A, 64 (uniform sales act), relevant cases construing these provisions have been included in the annotations to this section.
The measure of damages provided in the case of nonacceptance of the goods is the difference between the contract price and the fair market price at the time when the goods ought to have been accepted. Howse v. Crumb, 143 Colo. 90, 352 P.2d 285 (1960).
Where buyer wrongfully refuses to accept delivery, the seller's right to retain a down payment is for application on the damages and not addition to them, so if the damages are in excess of such a down payment, only the excess is recoverable. Thach v. Durham, 120 Colo. 253, 208 P.2d 1159 (1949).
Seller's right to apply down payment on damages is not controlling where the seller exercises the right to resell in good faith. Dolfin v. Bruesselbach, 111 Colo. 525, 143 P.2d 1014 (1943).
Seller's recovery by resale under § 4-2-706 may differ from that of this section. Howse v. Crumb, 143 Colo. 90, 352 P.2d 285 (1960).
Where a contract provides for alternative performances, the remedy for its breach is not determined exclusively by the Uniform Commercial Code. The parties to a contract may vary the provisions of the Uniform Commercial Code by agreement, and may provide for remedies in addition to or in substitution for those provided by the Uniform Commercial Code. Colo. Interstate Gas Co. v. Chemco, Inc., 854 P.2d 1232 (Colo. 1993).