to be considered as damages for a breach of the contractthat the rule is, what is the market value of the article at the time it is to be delivered? or, if it has no market value, then what will it cost to produce it, and what is the price at which the defendant was to furnish it? and the difference between those prices is the measure of damages. This however, seems to me to be subject to be controlled by the circumstances and nature of the contract itself.

. It is laid down in Sedgwick on Damages, p. 64: "It is sometimes said in regard to contracts, that the defendants shall be held liable for those damages only which both parties may fairly be supposed to have at the time contemplated as likely to result from the nature of the agreement; thusPothier puts the case of an agreement for the sale of a horse and failure to deliver. If in this instance horses have risen in price, the purchaser has a claim for what he has been obliged to give for a similar animal over and above the price at which he was to have that of the seller, and this he terms the damages propter rem ipsam non habitam.

But on the other hand, if the purchaser were a canon of the church, and by reason of the non-delivery of the horse could not arrive at his residence in season to receive his gros fruits (or tithes,) the seller is not liable for the loss of those gros fruits, because this was not foreseen at the time of the contract. But if the horse had been sold for the express object of enabling the canon to arrive in time for his gros fruits, then the injuries which would be remote and consequential become direct and immediate, and constitute a valid claim, as forming part of the contract between the parties.

In the very recent case of Hadley v. Baxendale (9 Ex. 341), which was argued at great length, and was no doubt well considered, Parke, Baron, observes, the sensible rule appears to be that which has been laid down in France, and which is declared in their code (Code Civil, liv. iii. tit. iii. Ss. 1149, 1150, 1151), and which is thus translated in Sedgwick (p. 67): "The damages due to the creditor consist in general of the loss that he has sustained and the profit which he has been prevented from acquiring, subject to the modifications hereinafter contained, The debtor is only

liable for the damages foreseen, or which might have been foreseen at the time of the execution of the contract, when it is not owing to his fraud that the agreement has been violated. Even in case of the non-performance of the contract resulting from the fraud of the debtor the damages only comprise so much of the loss sustained by the creditor, and so much of the profit which he has been prevented from acquiring as directly and immediately results from the non-performance of the contract." In argument, the following proposition was laid down: "When the contracting party is shown to be acquainted with all the consequences that must of necessity follow from a breach on his part of the contract, it may be reasonable to say that he takes the risk of such consequences." Baron Alderson, in giving the judgment of the court, lays down the rule thus:

"When two parties have made a contract, which one of them has broken, the damages which the other party ought to recover in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally-i.e. according to the usual course of things-from . such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such contract which they would reasonably contemplate would be the amount of the injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases, not affected by any special circumstances from such a breach of contract;" and in referring to the case then under consideration, he says "It follows therefore, that the loss of profits here cannot reasonably be considered such a consequence of the breach of contract as could have been fairly and reasonably contemplated by both the parties when they made this contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of

such cases occurring under ordinary circumstances, nor were the special circumstances which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants."

In Robinson v. Harman (1 Ex. 854) Parke, Baron, states the rule of the common law is, "that where a party sustains a loss by breach of contract, he is, so far as money can do it, to be placed in the same situation with respect to damages as if the contract had been performed."

The case of Waters v. Towers (8 Ex. 401) is strongly in the plaintiff's favor. The facts are briefly referred to in the case of Hadley v. Baxendale (9 Ex. 341), above quoted from, as follows: "The defendants there had agreed to put up plaintiff's mill within a reasonable time, but had not completed their contract within such time, and it was held that the plaintiffs were entitled to recover by way of damages the loss of profits upon a contract they had entered into with third parties and which they were unable to fulfil by reason of the defendants' breach of contract.

Now in this case the defendants well knew plaintiff had entered into an agreement with Sykes, DeBergue & Co. to furnish these ties; and the damages which would naturally flow from a breach of the defendants' argeement with plaintiff would be the difference in the price which the plaintiff was to give and receive for those ties, under the contracts referred to. The direction to the jury that this difference was the plaintiff's proper measure of damage was correct in principle, and is sustained by English authorities.

The note to the case in the American edition of eight Exchequer Reports, shews that in some of the courts in the United States the profits which might have arisen by a subsequent resale of any property which was to have been delivered under a contract, and which were lost by the nonperformance of the contract, cannot be taken into consideration in an action for a breach of such contract, such damages being considered too contingent and remote to be allowed. Of course, without reference to the cases themselves, we cannot see how far they conflict with the doctrine laid down in the more recent English cases.

On the whole, therefore, I think the verdict in the case against Bates et al. must stand, as the amount is clearly

below what the jury would be warranted in giving the plaintiff under the rule laid down. The fact that the defendant Bates sold the ties to Sykes, DeBergue & Co. at the price which they had argreed to give the plaintiff for them was evidence to go to the jury of the market value of the ties, and also to shew that defendants' omission to perform the contract may come under the rule where the failure to perform the contract is the result of the fraud of the debtor.

In the case of the same plaintiffs against Bates and Simpson, where the damages were only £12 10s. Od.-whereas if the jury had followed the direction of the learned Chief Justice the amount would have been a very much larger sum-the plaintiff has moved for a new trial on the ground of smallness of damages. It is said not to be usual to grant new trials for smallness of damages, unless there has been some mistake in a point of law on the part of the judge who presided, or in the calculation of figures by the jury. It is not pretended there was any misdirection, and the amount of the verdict shews clearly that the jury really only intended to give but little more than nominal damages, so that there was no mistake in the calculation of figures. The jury probably considered the action to come under that class called hand actions.

Whatever amount of damages the jury should give to plaintiff must undoubtedly be considered in the nature of profits, to be made by plaintiff on the purchase of ties, and on that point a recent and able commentator on the French code holds this language:

"There is nothing more abstract than the subject of damages. The law, therefore, has only been able to lay down general principles, leaving the wisdom of the tribunals to apply them according to the circumstances and facts of the case; and though it establishes that, in general, damages consist of the loss which the creditor has suffered, and the profit of which he has been deprived, nevertheless the judge should be more moderate in granting large damages for profits prevented, than for loss actually sustained. The lucrum cessans is generally less calculated to excite the solicitude of the judge than the damnum emergens, and too much vigor on this branch of the subject would degenerate into injustice, summum jus summa injuria-such is the general opinion of our authors."-Sedgwick, 68, 69.

On the whole, then, as the learned Chief Justice, who tried this cause, is satisfied with the verdict, and the plaintiff recovered substantial damages in the other action tried at the same assizes, I think the rule ought to be discharged.

Per Cur.-Rules discharged.

DALY V. LEAMY.

Record-When evidence.

In an action for malicious arrest the plaintiff attempted to put in evidence the original record in the suit of the present defendant against the present plaintiff, with the verdict of the jury in this plaintiff's favour endorsed thereon.

Held, that such record was inadmissible in evidence.

This is an action on the case for malicious arrest.

The declaration containing one count only, alleging the want of any reasonable or probable cause for the defendant believing plaintiff was about to leave the province, with intent to defraud &c. Before the cause was tried the original suit of defendant v. plaintiff was tried at the same assizes, and a verdict rendered for the defendant-that is, the present plaintiff and on this trial of the cause the present plaintiff gave in evidence the Nisi Prius record in that case, with the verdict endorsed in aid of this action, as evidence to support the allegation of malice, and to shew the want of any reason to apprehend that the plaintiff was about to abscond to defraud defendant of a debt when no debt was due. This evidence was objected to, but received, and the jury found for the plaintiff £150.

Last Michaelmas Term defendant obtained a rule on plaintiff to shew cause why it should not be set aside. In the following term (Hilary Term, 18 Vic. 1855) A. Crooks shewed cause; and Wilson, Q. C., replied.

MACAULAY, C. J., delivered the judgment of the court. The objection to the evidence is, that the present action was brought pending the other suit, and in this declaration the debt sworn is not denied, but in effect admitted. To have made the want of any existing debt a ground of action, plaintiff should have waited until that suit was at an end; but he did not do so, nor did the verdict shew it to be at an end.