upon so many contingencies that their loss cannot be traced with reasonable certainty to the breach of the contract. When that is the case they are said to be too remote; and the damages must be estimated on a consideration of such elements of injury as are more certainly and directly the result of the failure in performance. But in some cases

profits are the best possible measure of damage, for the very reason that the loss is indisputable, and the amount can be estimated with almost absolute certainty. The case of a contract for the delivery of grain or any other article which at all times finds a ready sale at a current market price is an instance; if the contract is not performed, the purchaser may recover the advance beyond the purchase price; and this, though not recovered under the name of profits, is really nothing else."

Upon the best consideration I have been able to give to it, I am of opinion that the decision appealed from is quite within the principles deducible from the authorities relied upon in the Court below, and others to which I shall briefly refer.

Hinde v. Liddell, L. R. 10 Q. B. 265, was an action for breach of contract to supply a quantity of grey shirtings for shipment abroad. The defendant being unable to complete his contract by the time specified, and there being no market in England where similar goods could be obtained, the plaintiff at an increased price procured other shirtings as nearly as possible equal in price and quality to those contracted for. He was held entitled to recover the difference between the contract price and what he had

to pay.

Blackburn, J., says (p. 267): "But there was no market for this particular description of shirtings, and therefore no market price; in such a case the measure of damages is the value of the thing at the time of the breach of contract, and that must be the price of the best substitute procurable." And again (p. 269): When the thing cannot be got in the market, if you cannot have the market price, still the plaintiff is entitled to more than nominal damages."

*

Arm

He then refers to Elbinger Actien-Gesellschafft v. strong, L. R. 9 Q. B. 473, in which it is said in the judg ment of the Court (p. 476):

It is, no doubt, quite settled that, on a contract to supply goods of a particular sort, which at the time of the breach can be obtained in the market, the measure of the damages is the difference between the contract price an the market price at the time of the breach. Where, from the nature of the article, there is no market in which it can be obtained, this rule is not applicable; but it would be very unjust if, in such cases, the damages must be nominal; and there are several decisions shewing that such is not law."

One of these is the early case of Bridge v. Wain, 1 Starkie 504, which was an action for breach of contract for delivering goods for sale in China, which were not of the quality and kind contracted for. There was no evidence of the sum actually produced by the sale. It was contended that the plaintiff could not recover more than the difference in value between the article delivered and that contracted for, without reference to any special and particular loss resulting from the loss of the sale in China, Lord Ellenborough said (p. 506,) "I am decidedly of opinion that by value, is to be understood, the value which the plaintiff would have received had the defendant faithfully performed his contract."

The only difference between that case and the case before us would seem to be that in the former the goods were deliverable by the vendor at the market they were intended for, whereas, in the latter, they were deliverable at an intermediate point, whence the vendee was to transport them to the market.

O'Hanlan v. Great Western R. W. Co., 6 B. & S. 484, is a case similar in some respects to Bridge v. Wain, supra, though the goods were not for shipment abroad. Blackburn, J., says: "Where there is no market, from the nature of the thing no evidence of what the importer's profit is can well be given, and the jury must say what is the fair and reasonable profit which persons in the ordinary course of business would be likely to make."

Elbinger v. Armstrong, L. R. 9 Q. B. 473, was approved of in the recent case of Grébert-Borgnis v. Nugent, 15 Q. B. D. (C. A.) 85. There it was held, there being no market

for the goods of the description contracted for, that the plaintiff was not only entitled to recover as damages the amount of profit he would have made had he been able to fulfil his sub-contract, but also (the defendant having had notice of the sub-contract at the time he entered into his own), damages in respect of the plaintiff's liability upon the sub-contract.

Brett, M. R., says (p. 89) that the result of the cases is this:

"Where a plaintiff * is seeking to recover for some liability which he has incurred under a contract made by him with a third person, he must shew that the defendant, at the time he made his contract with the plaintiff, knew of that contract. If such sub-contract was not made known to him at all, the defendant cannot be made liable for what the plaintiff has had to pay under it. If there be no market for the goods, then the sub-contract by the plaintiff, although not brought to the knowledge of the defendant, the original vendor, may be put in evidence in order to shew what was the real value of the goods, and so enable the plaintiff to recover the difference between the contract price and the real value."

In Stevens v. Lyford, 7 N. H. 360, a case not unlike the present, the plaintiff claimed damages for a breach of contract by the defendant to deliver a certain description of lumber at Franklin, N. H whence it was intended to be transported by the plaintiff to Charlestown or Boston. The jury were directed that if they believed lumber of that description could not be obtained by the plaintiff at Franklin, they might consider what was the price of such lumber at Charlestown and the expense of rafting the same from Franklin, and in that way ascertain the plaintiff's damage. This direction was uphe'd. The Court say: "The plaintiff is entitled to recover according to the value of the timber to him, at the place of delivery. He is entitled to be remunerated for the loss sustained by the non-fulfilment of the contract. For the purpose of shewing this loss he is not confined to any particular species of evidence to prove the value of the lumber at the place of delivery. He may shew it by shewing a market orice there, if there have been sales enough to establish a market price; or he

may shew its value at the market where such lumber was usually sent, and the cost of transportation from the place of delivery, and this will be a guide to measure its value at the place of delivery. The difference between the value of the lumber at the place of delivery, and the price to be paid, is a damage which may be presumed necessarily to result from a breach of the contract * If this evidence had been admitted to shew the profits which the plaintiff might have obtained, it was not evidence to shew any special profits which he might have made by reason. of any particular contract, but only the profits which would have accrued by the general course of trade, and thus to shew the value of the lumber at the place of delivery."

The element in our case, which does not exist in any of the cases cited, except the last, is that which I have already adverted to, namely, that the article was to be transported by the purchaser from the place of delivery to the place of market. It seems to be conceded that if the defendant had himself actually contracted to re-sell the timber, he might have purchased it in Quebec and charged the vendor with the amount paid, less the contract price and the cost of transportation.

That would be the case even if the timber had not been intended for the Quebec market, if that was the nearest place where it could be procured against the vendor's broken contract, and if it was a reasonable course under all circumstances to have taken. Here there is the additional fact that it was known to the vendor that the timber was intended for such market; and its market value there, after making similar deductions, may, I think, be taken as the proper measure of the damages resulting from the breach of the contract; the natural and probable consequence of such breach-the consequence which, from the facts then known to them, may fairly be considered to have been within the contemplation of the parties when they made their contract-being, that the purchaser in the event of its non-fulfilment would be deprived of the opportunity of disposing of the timber in the market it was intended for. I do not think that such damages can fairly

be described as too remote or uncertain, or as being merely contingent or conjectural, nor can I see any just reason why they should not be ascertained on this basis as well when the purchaser has not bought against the broken contract as when he has done so, the market value of the goods at the place where they were intended to be sold, after a deduction for the cost of transportation, forming as good a criterion of the limits of the purchaser's damage as the price obtained on a sub-sale. I think it is evidence on which the jury or a Judge may safely act in assessing such damage, though, of course, I do not mean to say they are bound to do so to the full extent.

In addition to the cases already cited, I refer to the following: Masterton v. Mayor of Brooklyn, 7 Hill N. Y. 61; Furlong v. Polleys, 30 Me. 491; Sternfels v. Clark, 2 Hun. N. Y. 122; Heineman v. Heard, Ib. 324, 332; Camden Co. v. Schlens, 59 Md. 31, 45; United States v. Behan, 4 Sup. C. Reports (Vol. 108 U. S. Reports) 81, 83; James v. Adams, 8 W. Virginia 568; Hamilton v. Magill, 12 L. R. Ir. 186; Hawes v. South Eastern R. W. Co., 52 L. T. N. S. 514; Simpson v. London and North Western R. W. Co., 1 Q. B. D. 274.

I think the appeal should be dismissed.

PATTERSON, J. A., GALT and ROSE, JJ., concurred.

Appeal dismissed, with costs.

7-VOL. XII A.R.