Canfield (defendant) agreed to deliver flour to Norton & Bush (Bush) (plaintiff), a partnership, on or before May 1. The contract stipulated that the price of flour would be $7.00 per barrel at the time of delivery. Bush paid $5,000 in advance for the flour and agreed to pay the remainder of the balance thereafter. Canfield did not deliver the flour. Bush brought suit for damages and the matter was tried before a jury. Evidence was introduced at trial showing that the price of flour in New Orleans on May 1 was $5.50 per barrel. The trial court instructed the jury that, if the jury found in favor of Bush, the damages would be the amount Bush paid in advance plus interest. The jury returned a verdict for $6,771. Canfield petitioned the Supreme Court of Errors for a new trial.