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of October informed the plaintiff that they could not execute the order by the time specified. The plaintiff at once tried to purchase other shirtings like those ordered, and being unable to do so, bought shirtings better in quality, but as nearly the same as those contracted for, as he was able, at a slightly advanced price, and these he delivered to his buyer at the contract price. The price paid by the plaintiff was 1377. 10s. more than he had contracted to pay the defendants; and the goods so purchased were found to be 871. 10s. better than those contracted for. The defendants contended that the plaintiff was only entitled to recover the differences. Blackburn, J., said: "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 the Court held that the plaintiff was entitled to recover 1377. 10s.

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In Bergheim v. The Blaenaron Iron Co. (a), in 1875, the action was to recover damages from the seller for late delivery. The contract was for 5,000 tons of rails, the delivery to commence by the 15th of January, and to be completed by the 15th of May. "In the event of the makers exceeding "the time for delivery above stipulated, they shall pay, by way "of fine, the sum of 7s. 6d. per ton per week." The defendants delivered the iron in May, June, July, August, and September, and the Court held that the fine ought to be calculated from the time at which the contract ought to have been completed, viz., the 15th of May.

In The Elbinger Actien-Gesellschafft v. Armstrong (b), in 1875, the defendant had contracted to deliver 666 sets of wheels and axles, for shipment from Hull: the first 100 sets were to be delivered by the 15th of April, and were not so delivered. The plaintiffs, before entering into the contract,

(a) Bergheim v. The Blaenavon Iron Co., 44 L. J. Q. B. 92; L. R. 10 Q. B. 319. (b) Elbinger Actien-Gesellschafft v. Armstrong, 43 L. J. Q. B. 211; L. R. 9 Q. B. 473. See also Grébert-Borguis v. Nugent, 15 Q. B. D. 85.

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had informed the defendant that the wheels were for delivery to a Russian company, under penalties. The plaintiffs were unable to procure other sets of wheels, and paid the Russian company one rouble for each day's delay of each set of wheels, amounting to 1007. 13s. No question was left to the jury, but the Judge directed a verdict for this amount to be entered for the plaintiffs. Blackburn, J., delivering the judgment of the Court, said: "If we thought that this amount could only be come at by laying down as a proposition of law "that the plaintiffs were entitled to recover the penalties actually paid to the Russian company, we should pause "before we allowed the verdict to stand. . . If the "Judge had told the jury expressly that the penalties as "such could not be recovered, but that the plaintiffs were "entitled to such damage as in their opinion would be fair "compensation for the loss which would naturally arise from "the delay, including therein the probable liability of the 66 plaintiffs to damages by reason of the breach through the "defendant's default of that contract to which, as both "parties knew, the defendant's contract with the plaintiffs "was subsidiary, the direction would not, at all events, have "been too unfavourable to the defendant."

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In the case of the Hydraulic Engineering Co, v. McHaffe (a), in 1878, the plaintiffs, who contracted to supply a "gunpowder pile driver" to Justice, sub-contracted with the defendants to make a part of the machine, telling them that the machine was to be delivered to Justice by the end of August, and it was agreed in the sub-contract, which was made about the end of July, that the defendants were to finish that part "as soon as possible" (b). The defendants did not deliver the part until the end of September, when Justice refused to accept the machine, and as it was unsaleable, it was of no value except as old iron, and it was agreed that the defendants should take it. The defendants' only excuse for the

(a) Hydraulic Engineering Co. v. Mellaffie, 4 Q. B. D. 670.

(b) For the meaning of these words, see Attwood v. Emery, 26 L. J. C. P. 73 ; 1 C. B. N. S. 110.

delay was that they had not in their employ a workman competent to do the work. Field, J., held that the plaintiffs were entitled to recover for the expenditure they had uselessly incurred, and for the loss of profit upon their contract with Justice, and this judgment was affirmed by Bramwell, Brett, and Cotton, L. JJ.

Interest.

The remaining question is, whether, when one party does not pay a debt owing to another, the other can recover interest on the money so detained, or damages for its detention: as where the buyer refuses to pay for goods which have been delivered to him. There were many cases on this subject in the early part of the century, not always in harmony, and the law is not quite free from ambiguity at the present date; but the general rule is now quite settled in accordance with the dictum of Abbott, C. J., in the case of Higgins v. Sargent (a), in 1823. "It is now established as a general principle, that "interest is allowed by law only upon mercantile securities, "or in those cases where there has been an express promise "to pay interest, or where such promise is to be implied from "the usage of trade or other circumstances."

Although it is here stated that interest is recoverable on mercantile securities, it is probably more exact to say that where interest has not been expressly contracted for on the face of the instrument, it is not recovered as such, but as damages for the detention of the debt, to which, on mercantile securities, the plaintiff is generally entitled by the usage of trade, but at the discretion of the jury (b). And if the defendant undertook to give his acceptance, and then refused to do so, the plaintiff is entitled as if the acceptance had been given (c).

(a) Higgins v. Sargent, 2 B. & C. 348.

(b) Cameron v. Smith, in 1819, 2 B. & A. 305; In re Burgess, in 1818, 8 Taunt. 660; Keene v. Keene, in 1857, 27 L. J. C. P. 28; 3 C. B. N. S. 145. For interest on a mortgage deed, see In re Roberts, 14 Ch. D. 49.

(e) Slack v. Lowell, in 1810, 3 Taunt. 157; Porter v. Palsgrave, 2 Camp. 472; Attwood v. Taylor, in 1840, 1 M. & Gr. 280; Marshall v. Poole, 13 East, 98; Daris v. Smyth, 8 M. & W. 399.

Section 54 of the Sale of Goods Act provides that "nothing "in this Act shall affect the right of the buyer or the seller to "recover interest or special damages in any case where by law "interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it "has failed."

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There is no difficulty where the promise to pay interest is an express one, as in Harrison v. Allen (a), in 1824, where the defendant had jewellery sent to him, on the understanding that if he did not return it within twelve months he should pay a certain price for it, with interest. The jury gave interest, and the Court refused to disturb the verdict.

An agreement to pay interest may be implied from the course of dealing between two parties.

In Re Marquis of Anglesey (b), in 1901, it was proved that a tradesman had, in his yearly accounts, charged his customer with interest on amounts due for three years and longer. This charge had never been objected to, and the customer had from time to time made payments on account. Held, that there was evidence of an agreement to pay interest on the terms on which it was actually charged to him.

In the cases of Johnson v. Bland (c), in 1760, and Parker v. Hutchinson (d), in 1796, the Court probably considered there was an implied contract to pay interest.

The general rule is that the plaintiff is not entitled to interest; and from the following cases it will be seen that there is no implied promise to pay interest where there has been a sale of goods, money lent, or a balance of an account struck, nor does it make any difference that the debt was a sum certain payable on a given day (e), or that the sale was on credit, or that the plaintiff had demanded the money.

(a) Harrison v. Allen, 4 Bing. 4.

(b) Re Marquis of Anglesey (1901), 2 Ch. 548.

(c) Johnson v. Bland, 2 Burr. 1086.

(d) Parker v. Hutchinson, 3 Ves. 133; Mountford v. Willes, 2 B. & P. 337 ; Arnott v. Redfern, 3 Bing. 360.

(e) Per Holroyd, J., in Higgins v. Sargent, 2 B. & C. 352, Cook v. Wood, L. R. 7 E. & I. Ap. 27.

Thus in Chalie v. Duke of York (a), in 1806, the plaintiff, in the course of dealings with the defendant, had supplied him with wine. In 1800 the account showed a balance in favour of the plaintiff, on which he claimed interest, but Lord Ellenborough, C. J., refused it.

In Havilland v. Bowerbank (b), in 1807, Lord Ellenborough again refused to allow interest on certain sums of money belonging to the plaintiff in the defendant's hands, which the plaintiff had demanded two years before the action.

In Gordon v. Swan (c), in 1810, the contract was for the sale of 150 tons of copper at 841. a ton, "payable at six months;" the question was whether interest could be recovered from the expiration of the six months. It was argued for the plaintiff that the fixing of a particular day for the payment for the goods showed an intention to pay interest from that date. But the Court, one of whom was Lord Ellenborough, C. J., refused to allow it.

The credit is for the benefit of the buyer; it is an agreement between the parties that until the expiration of the credit, the buyer shall not be sued for the money. It is not a promise by implication to pay interest from the expiration of the credit.

The case of Calton v. Bragg (d), in 1812, has been often cited as an authority. At the trial it appeared that there was a running account between the plaintiff and defendant, and that the plaintiff had from time to time supplied the defendant with goods, and lent him sums of money. The defendant had paid for the goods and repaid the sums lent, but refused to pay the interest, for which this action was brought. Lord Ellenborough, C. J., Grose and Bayley, JJ., held it could not be recovered. It was contended on the plaintiff's behalf that interest should be paid, because the lender would otherwise lose the benefit which he might have

(a) Chalie v. Duke of York, 6 Esp. 45.

(b) Havilland v. Bowerbank, 1 Camp. 50; Bernales v. Fuller, in 1810, 2 Camp.

426.

(c) Gordon v. Swan, 2 Camp. 429; 12 East, 419,

(d) Calton v. Bragg, 15 East, 223,

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