Sect. 51.

Damages

for nondelivery.

in an action for non-delivery no difference between the contract price and market price is shown, the plaintiff in general is only entitled to nominal damages.1

The rule is so convenient and obvious that the English Courts apply it whenever possible, even where it produces hardship in individual cases.2 In Scotland the rule is not nearly so strictly applied.3

But there are many cases in which the rule of market price is inapplicable. If it is partially applicable it will be applied with the necessary modifications, thus—

(1.) The buyer may have prepaid the price. In that case he is probably entitled to recover the full market price of the goods on the day when they ought to have been delivered, together with interest on the money he has been kept out of.1

(2.) The exact sort of goods the buyer has contracted for may not be obtainable, but if it is reasonable for him to buy in similar goods he may charge the seller with the difference in price.5

(3.) The seller may have repudiated his contract before the time for delivery arrives. In such case the buyer may either hold him to his contract and wait till the appointed time, or he may treat the.contract as rescinded and sue at once. In the latter case regard is still to be had to the market price at the agreed time, but it seems that the seller may give evidence in mitigation of damage if the buyer's conduct has been unreasonable.

(4.) The time for delivery may have been extended at the seller's request. In that case the extended time will be taken as the contract time.7

Again the market price test may be wholly inapplicable, and then recourse must be had to the wider general principle of Hadley v. Baxendale. This is the case where there is no market for the goods

1 Valpy v. Oakeley (1851), 16 Q. B. 941.

2 Brady v. Oastler (1864), 33 L. J. Ex. 300 (special price for early delivery); Williams v. Reynolds (1865), 34 L. J. Q. B. 221 (profit on re-sale excluded); Thol. v. Henderson (1881), 8 Q. B. D. 457 (sub-contract by buyer).

3 Dunlop v. Higgins (1848), 1 H. of L. Cas. 381; see at p. 403.

4 Startup v. Cortazzi (1835), C. M. & R. 165; cf. Barrow v. Arnaud (1846), 8 Q. B., at p. 610; and see Mayne on Damages, 4th ed., p. 175. 5 Hinde v. Liddell (1875), L. R. 10 Q. B. 265 (grey shirtings).

Roper v. Johnson (1873), L. R. 8 C. P. 167, see at p. 181 (coal); Mayne on Damages, 4th ed., p. 164.

Ogle v. Earl Vane (1868), L. R. 3 Q. B. 272 (non-delivery), Ex. Ch. ; Hickman v. Haynes (1875), L. R. 10 C. P. 598 (non-acceptance); cf. Tyers v. Rosedale Co. (1875), L. R. 10 Ex. 195, Ex. Ch. (1000 tons of iron).

1

in question at the time and place appointed for delivery, as where the buyer has ordered some special article or articles to be expressly manufactured for him. Each case then turns on its particular circumstances, and is usually complicated by questions of special damage.2

Sect. 51.

A similar rule applies to damages for delay, when goods of a Delay in particular description are ordered, and are ultimately accepted after delivery. the delay,3 there being perhaps a primâ facie rule that the damage is the difference between "the value of the article contracted for at the time when it ought to have been and the time when it actually was delivered." 4

Subject to the provisions of sects. 8, to 10 of the Factors Act, 18895 (now reproduced in sects. 25 and 47 of this Act), where, under a contract of sale, the property of the goods has passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action for damages for detention of the goods against the seller or any other person in possession of the goods, or an action for the conversion of the goods against the seller or any other person who has dealt with the goods under such circumstances as to amount to a conversion thereof."

As between seller and buyer the buyer cannot recover larger damages by suing in tort instead of in contract. Thus if he has not paid the price he can only recover the difference between the contract price and the value of the goods.?

1 Elbinger Actien Gesellschafft v. Armstrong (1874), L. R. 9 Q. B., at p. 476 (carriage wheels).

2 Hydraulic Co. v. McHaffie (1878), 4 Q. B. D. 670, C. A. (machine ordered "as soon as possible"); Grébert Borgnis v. Nugent (1885), 15 Q. B. D. 85, C. A. (goods made to order).

3 Smeed v. Foord (1859), 28 L. J. Q. B. 178 (team thrashing-machines); Cory v. Thames Iron Works Co. (1868), L. R. 3 Q. B. 181 (steam derrick). As to damages against a carrier for delay in delivering ordinary goods of commerce, see The Parana (1877), 2 P. D. 118, at p. 122, C. A.

Elbinger Actien Gesellschafft v. Armstrong (1874), L. R. 9 Q. B., at p. 477, per Blackburn, J.

5 See Part IV., ante, pp. 75 to 94, as to seller's lien and stoppage in transitu, and note on p. 91 as to re-sale, and the Factors Act, post, p. 134.

As to detinue, see Bullen & Leake's Prec. of Pleading, 3rd ed., p. 311; Langton v. Higgins (1859), 28 L. J. Ex. 252. As to conversion or trover, ibid., p. 290; also Hollins v. Fowler (1875), L. R. 7 H. L. 757.

Chinery v. Viall (1860), 29 L. J. Ex. 180; cf. Johnson v. Stear (1863), 33 L. J. C. P. 130; Hiort v. L. & N. W. Railway (1879), 4 Ex. D. 188, C. A. Aliter if perhaps the seller wrongfully retake the goods after

Trover or

detinue.

Sect. 51.

Specific perform

ance.

[19 & 20

Vict. c. 97, s. 2, and Jud. Act, 1873.]

As regards third parties the ordinary measure of damages for conversion is the value of the goods at the time of the wrongful act.1

When a man has sold goods to one persor, a mere contract to sell them to another is not a conversion,2 but a delivery of them in pursuance of that contract is a conversion,3 unless at the time of re-sale the original buyer was in default as regards paying the price.1 Ordinarily a person who buys and receives goods which the seller had no right to sell is guilty of a conversion, however innocently he may have acted, but from the 1st January, 1890, his liability has been much restricted by sects. 8 and 9 of the Factors Act, 1889, post, p. 134 (reproduced in sect. 25 of this Act).

52. In any action for breach of contract to deliver specific or ascertained goods the Court may, if it thinks fit, on the application of the plaintiff, by its judgment [or decree] direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The judgment [or decree] may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the Court may seem just, and the application by the plaintiff may be made at any time before judgment [or decree].

The provisions of this section shall be deemed to be supplementary to, and not in derogation of, the right of specific implement in Scotland.

See "specific goods" and "plaintiff" and "defendant" and "action" defined by sect. 62, post, pp. 114, 118, 119. "Decree" is the Scotch term for "judgment."

This section reproduces sect. 2 of the Mercantile Law Amendment

delivery, Gillard v. Brittan (1841), 8 M. & W. 575; but see Johnson v. Lancashire Railway (1878), 3 C. P. D., at p. 507.

1 Ibid., and France v. Gaudet (1871), L. R. 6 Q. B. 199.

2 Lancashire Wagon Co. v. Fitzhugh (1861), 30 L. J. Ex. 231.

3 Ibid.; cf. Cooper v. Willomatt (1845), 1 C. B. 672.

Milgate v. Kebble (1841), 3 M. & Gr. 100.

5 Cooper v. Willomatt (1845), 1 C. B. 672; Hilbery v. Hatton (1864), 33 L. J. Ex. 190.

Act, 1856, as modified by the Judicature Acts and Rules which enable a Judge to try a case without a jury and give a defendant the right to claim any relief by counterclaim which he could have sought if he had brought an independent action, and enable all courts to administer all remedies.

Sect. 2 of the Mercantile Law Amendment Act extended the provisions of sect. 78 of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125) which enabled the Court in an action of detinue, to order that execution should issue for the return of the chattel detained without giving the defendant the option of retaining the chattel upon paying the value assessed. The enactment seems to have been passed to carry out the recommendation of the Mercantile Law Commission, 1855, and to assimilate English to Scotch law in this respect.1

In Scotland specific performance, or, as it is called, specific implement, is an ordinary and not an extraordinary remedy, and it can be demanded as of right wherever it is practicable.2

Sect. 52.

for breach

53.—(1.) Where there is a breach of warranty by the Remedy seller, or where the buyer elects, or is compelled, to of treat any breach of a condition on the part of the seller warranty. as a breach of warranty, the buyer is not by reason only 5 of such breach of warranty entitled to reject the goods; but he may

(a) set up against the seller the breach of warranty in diminution or extinction of the price; or

6

1 Mercantile Law Commission (1855), Second Report, p. 10.

2 Stewart v. Kennedy (1890), 15 App. Cas., at pp. 102, 105, H. L. 3 Benjamin on Sale, 4th ed., p. 936; Syers v. Jonas (1848), 2 Exch., at p. 117; Dawson v. Collis (1851), 10 C. B. 523, at p. 533; Behn v. Burness (1863), 32 L. J. Q. B., at p. 206, Ex. Ch.; Heilbutt v. Hickson (1872), L. R. 7 C. P. 438, at p. 451 (army shoes).

4 Ibid., and Street v. Blay (1831), 2 B. & Ad. 456, at p. 463; Gompertz, v. Denton (1832), 1 Cr. & M. 207; Parsons v. Sexton (1847), 4 C. B. 899; Couston v. Chapman (1872), L. R. 2 Sc. App., at p. 254 (wine). Aliter, of course if the warranty be fraudulent, Murray v. Mann (1848), 2 Exch. 538.

5 See Bannerman v. White (1861), 31 L. J. C. P. 28; cf. Behn v. Burness (1863), 32 L. J. Q. B., at p. 206, Ex. Ch.; Heilbutt v. Hickson (1872), L. R. 7 C. P. 438, as to condition for rejection (army shoes).

6 Mayne on Damages, 4th ed., p. 105. As to reduction, see Street v. Blay (1831), 2 B. & Ad. 456; Allen v. Cameron (1833), 1 Cr. & M., at

Sect. 53.

(b) maintain an action against the seller for damages for the breach of warranty.1

(2.) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.2

(3.) In the case of breach of warranty of quality such loss is primâ facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.3

(4.) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage.1

(5.) Nothing in this section shall prejudice or affect the buyer's right of rejection in Scotland as declared by

this Act.

p. 810; Mondel v. Steel (1841), 8 M. & W. 858, at p. 870. As to extinction, see Poulton v. Lattimore (1829), 9 B. & C. 259.

1 Bullen & Leake's Prec. of Pleading, 3rd ed., p. 264. The buyer, if sued for the price, is not bound to set up the breach of warranty. He may pay in full, and then sue, Davis v. Hedges (1871), L. R. 6 Q. B. 687.

2 Randall v. Roper (1858), 27 L. J. Q. B. 266 (seed barley of inferior quality); Smith v. Green (1875), 1 C. P. D. 92 (cow with foot and mouth disease); Randall v. Newson (1877), 2 Q. B. D. 102, C. A., at p. 111 (defective carriage-pole specially made for carriage); Hammond v. Bussey (1887), 20 Q. B. D. 79, C. A. (ship coal of particular quality-special damage).

3 Mayne on Damages, 4th ed., p. 180; Loder v. Kekulé (1857), 27 L. J. C. P. 27; Jones v. Just (1868), L. R. 3 Q. B. 197; cf. Heilbutt v. Hickson (1872), L. R. 7 C. P., at p. 453 (shoes for army); and Ashworth v. Wells (1898), 78 L. T. N.S. 136 C. A. (breach of warranty of quality of orchid, damages not ascertainable at time of delivery).

4 Mayne on Damages, 4th ed., p. 182; Mondel v. Steel (1841), 8 M. & W. 858; cf. Rigge v. Burbidge (1846), 15 M. & W. 598.