C.A. 1900-1. SLOWEY v. LODDER "taken on terms different from those for which he had contracted." In my opinion, therefore, it is clear that the measure of the damages which the plaintiff is entitled to recover from the defendants Lodder and Murphy is the amount (if any) which he has lost by exclusion from the works before their completion, and not the value of the works executed by him either at the prices mentioned in the schedule to his contract or at their market value without reference to the contract. Counsel for the plaintiff rested their case, and it went to the jury, upon the 25th and 26th issues, solely upon evidence as to the value of the work executed by the plaintiff, without reference to the contract price; and the answers to these issues apply only to such value. There was no evidence that the plaintiff had suffered any actual loss by his exclusion from the work. The 24th issue is directed to this. The evidence as to damages, and the attention of the jury, were not, therefore, directed to the matter material to the plaintiff's claim, and the finding of the jury is therefore so defective that I cannot enter judgment upon it. The plaintiff is, however, on the evidence entitled to nominal damages for breach of the warranty of the defendants Lodder and Murphy. If the parties consent that judgment shall be entered for the plaintiff as against the defendants Lodder and Murphy for nominal damages, that course may be taken. If the parties will not so consent, then there must be an order for a new trial as between the plaintiff and the defendants Lodder and Murphy. In that case the question of the costs of the former trial, and of the motion for a new trial, will be reserved until after the second trial. From this decision, as regards the defendants Lodder and Murphy, the plaintiff now appeals. [The argument is reported only on the points dealt with in the judgments.] Morison and Skerrett, for the appellant: The judgment of the Court below is erroneous in holding that there is no distinction between the measure of damages in suing on a quantum meruit and in suing for damages for breach of the original contract. It decided that the measure was not the value of the work, labour, and materials, but the actual loss suffered by the plaintiff being prevented from completing the contract. There are two cases where a plaintiff can sue on a quantum meruit first, where plaintiff is in default but the defendant has accepted the benefit of a partperformance under circumstances which imply a promise to pay; secondly, where defendant only is in default, and, whilst the plaintiff is left open to damages for breach of contract, the law raises a presumption of a promise to pay for value of work done: Sedgwick on Damages(1); Sumpter v. Hedges(2). Where the plaintiff is not in default the fact that the defendant received no benefit is immaterial: Farnsworth v. Garrard(3). This case comes within the second class. Where one party has refused to perform the contract the other party. has the right to rescind, and sue on a quantum meruit for anything he has done previous to the rescission: Notes to Cutter v. Powell in Smith's Leading Cases(4). The true principle is that the party is entitled to sue on a new and implied contract arising from the acceptance of an executed consideration. The only question is, what is the value of what he has done? It is clear that he has an option to sue for breach of contract, or to treat the contract as rescinded and sue on a quantum meruit. If the measure of damages is the same in the two cases, why has he an option? The true measure in quantum meruit is the reasonable value of the work done and materials supplied, taking the contract price and other circumstances into consideration: Anson on Contracts(5); Goodman v. Pocock(6); Lilley v. Elwin(7); Osborne v. Rogers(8); Pollock on Contracts(9), citing Giles v. Edwards(10); De Bernardy v. Harding(11): Prickett v. Badger(12); Mavor v. Pyne(13); Planché v. Colburn(14); Mayne on Damages(15); Arterial Drainage Company v. Rathangan Drainage Board(16). [WILLIAMS, J.--If you sue on a quantum meruit you cannot get loss of profit; then you cannot be affected by the fact that you would have suffered a loss.] In estimating the value of what has been done there can be no inflexible rule that the contract price is to be apportioned. C.A. 1900-1. SLOWEY V. LODDER. C.A. 1900-1. SLOWEY V. LODDER. It may M. Chapman and Findlay, for the respondents: - The respondents are entitled to a new trial, on the ground that damages were assessed by the jury on a wrong principle, and that the finding cannot be supported. The new implied contract to pay quantum meruit is not a contract to pay at a new rate, but at the rate agreed upon by the parties. For some purposes the original contract is kept alive: Smith's (1) Vol. ii. s. 713. (2) 1st ed. Vol. xxix. 903. (6) 51 Amer. St. Rep. 289, 299. (8) 2nd ed. Vol. i. 474. (9) 110 U.S. Rep. 108. Leading Cases(1); Johnstone v. Milling(2). In case of a refusal to continue to take goods sold, the measure is the price of the goods delivered, and damages for breach. The original reason for the quantum meruit doctrine is that plaintiff has done something electing to treat the contract as rescinded he cannot sue on it; therefore a new contract is implied. All the authorities cited in support of the appellant's proposition were cases of damages for breach of contract: Planché v. Colburn(3); Hochster v. De la Tour(4); Prickett v. Badger(5). Gandell v. Pontigny (6) was an action on indebitatus assumpsit; the measure was the rate in the contract. So Mavor v. Pyne(7); Smith v. Hayward(8). [WILLIAMS, J.-How can you calculate it if there is not a uniform rate?] The damages must be pro ratá: Goodman v. Pocock(9); Lilley v. Elwin(10); Addison on Contracts(11). The evidence shows that the amount found by the jury is not made up on the basis of the contract. The jury did not consider the proportion of work done to the whole contract. The question went to the jury in the form, What was the work worth?— that is, What was the market value? There was no rescission of the contract by the appellant. His cause of action must be complete before action: De Bernardy v. Harding(12). As to the collapse, the only basis upon which compensation could be given was as damages for breach of contract. It was no part of the contract that the respondents pay for work rendered useless. It cannot be included in the extras. There was no warranty that the work previously done had been executed according to the contract, nor any warranty that increasing the brickwork was safe: Thorn v. The Mayor, &c., of London(13). Plaintiff had to satisfy himself, at his peril, on these points. Ward had no authority to give any such warranty. Nor do expressions used by him amount to a warranty. merely gave his opinion that the work could be done. As plaintiff sued on counts claiming for breach of contract, and on a quantum meruit, the question whether there was a rescission should have been put to the jury: Thomas v. Williams(14). (1) 10th ed. Vol. ii. 43. (2) 16 Q.B.D. 460. (3) 1 Moo. & S. 51. (4) 22 L.J. Q.B. 455; 2 El. & Bl. 678. (5) 26 L.J. C.P. 33; .1 C.B. N.S. 296. (6) 4 Camp. 375. (7) 3 Bing. 285. VOL. XX-23. (8) 7 A. & E. 544. (13) 45 L.J. Q.B. 487. He C.A. 1900-1. 353 SLOWEY V. LODDER. C.A. 1900-1. SLOWEY V. LODDER. There was no warranty by the defendants to give possession of the site to the plaintiff. The cases cited by Edwards, J., in his judgment in the Court below do not support the warranty: Roberts v. The Bury Commissioners(1); Bush v. The Trustees of the Port and Town of Whitehaven (2). Where the site is not the land of either of the parties, there is no reason why the duty to obtain possession should be cast on one more than on the other. Plaintiff was put into actual possession, and allowed to go on; the disturbance of the plaintiff was the wrongful act. Skerrett in reply. WILLIAMS, J. : Cur, adv, vult. The jury have found that the extrusion of the plaintiff from possession of the premises where he was carrying out his contract was wrongful and not justified by the terms of his contract. It was agreed at the trial that any issues of fact undetermined by the jury should be determined by the Court. The learned Judge below has found that the defendants are legally responsible for this extrusion, and for the consequent prevention of the plaintiff from carrying out his contract, on the ground that there was an implied warranty on the part of the defendants that the plaintiff should have quiet possession of the land on which the contract was to be carried out, during the term of the contract, as against any person rightfully claiming the site under a superior title. I I agree with that conclusion, but I think, further, that even if that conclusion be incorrect there was an implied warranty or an implied condition of the contract that the plaintiff should not be wrongfully interfered with by the very person to whom by the contract with the plaintiff the defendants had intrusted the superintendence of the plaintiff's work-viz., the Engineer to the Borough Council. Everything in connection with the plaintiff's contract was left by the defendants to the Borough Council and their officers. The Engineer in entering purported to be acting on behalf of the Council as against the defendants; but the defendants were of course aware that if he did this his action must at the same time affect the plaintiff. If it were necessary for the defendants to ratify the action of the Engineer as affecting the plaintiff, (1) L.R. 5 C. P. 310. (2) Hudson's Building Contracts, 2nd ed. Vol. ii. 121. |