1865.

V.

GREAT WESTERN Railway

a wholesale warehouseman and not at a retail dealer. O'HANLAN But the judgment of the Court added something more to that sum. In Bridge v. Wain (a), which was an action against the defendant for breach of contract in Company, delivering goods for sale in China which were not of the kind and quality contracted for, there being no evidence of the sum actually produced by the sales, it was rather impudently 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 specific and particular loss resulting from the loss of sale in China; but 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." Are not the jury to consider all the elements which would regulate the market price at Neath? Is not the reasonable profit of the importer in consequence of his risk and the trouble and skill which he must employ one of those elements?] If the importer's profit is to be taken into account the carrier of goods would be liable for all accidental fluctuations in the market, which are matters of speculation with the tradesman but are not in the contemplation of the carrier. The value of goods at a particular place is what a person having them there could sell them for, not what he could buy them for. Great uncertainty will be introduced if a jury may give the importer's profit without any evidence to enable them to arrive at a reasonable conclusion. [Blackburn J. Where from the nature of things it is impossible to give evidence we must allow the jury to bring their common sense and experience to bear on the subject.]

BLACKBURN J. The case has been fully discussed, and we are of opinion that the rule should be discharged. The leave reserved was to enter the verdict for the defendants, if there was no evidence on which the jury could reasonably find more damages than 221., which had been brought into Court. The goods originally cost at Leeds, cash down, 201., the price in the invoice being 201. 10s. 9d. They were sent, by the defendants' railway, to Neath, where they ought to have arrived early in November, but they were lost. It was agreed in the course of the argument that the rule laid down in Rice v. Baxendale (a) applies to the present case, viz., that setting aside all special damage the natural and fair measure of damages is the value of the goods at the place and time at which they ought to have been delivered to the owner. Now the value of the goods at the place of delivery must be the market price, if there is a market there for such goods: if there is not, either from the smallness of the place or the scarceness of the particular goods, the value at the place and time of delivery would have to be ascertained as a fact by the jury, taking into consideration various matters, including, in addition to the cost price and expenses of transit, the reasonable profits of the importer, which are adjusted by what is called the higgling and bargaining of the market. Neath was a place where there was no market for such goods as these, and the jury were therefore to take into consideration those elements. Where there is a market for goods of a particular description and they are actually sold, the price at which an importer sells them is regulated by his own average costs and charges, together with (a) 7 H. & N. 96.

1865.

O'HANLAN

V.

GREAT WESTERN

Railway Company.

1865.

v.

GREAT WESTERN Railway Company.

his average profit. For instance, the value of cotton at O'HANLAN Liverpool, upon an average, exceeds the value of cotton in the Southern States of North America together with the freight, costs and charges attendant upon its transport, otherwise no person would import it. The importer's profit, therefore, is an element in the market price of goods. 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. In the present case there was an intelligent jury, consisting of men of business in Glamorganshire, who would know what were the profits of persons who brought goods from a manufacturing district to a town in Wales. The defendants paid into Court a sum calculated at something less than 101. per cent. on the cost price to cover interest, expenses, and everything else. The question reserved is, were the jury warranted in giving the plaintiff more? The jury have found 251. damages. I think they were very liberal in doing so, but I cannot say they were wrong.

MELLOR J. After considerable hesitation I concur with my brother Blackburn. It appears to me that we cannot lay down the rule that the value of the goods at Neath, in the absence of evidence of any market price there, must be limited to the price paid at Leeds plus the freight. Another element must be taken into consideration, viz., the importer's profit: no man brings goods from Leeds to Neath for the purpose of selling them without adding to their price something beyond the cost of carriage, and that addition is the importer's profit. My

brother Bramwell's view in Rice v. Baxendale (a), which was a plaint in the Sheriffs' Court of London, is not inconsistent with this: he says, pp. 101-2, "If the case were again sent down, no doubt the Judge would find that the goods were worth more at Maidstone than at Leeds." I think he must have acceded to the view that something should be added beyond the mere freight. In the present case the defendants' counsel contended that there ought to be some evidence on which the estimate of importer's profit should be based. I do not see what evidence could be given. The addition must be assessed by the jury acting upon their own experience and knowledge of business. In the present instance they have given with a very liberal hand, but we are not dealing with the question of excessive damages. The question is, whether the verdict ought to be entered for the defendants or to stand for the plaintiff; and I cannot say that the verdict ought to be entered for the defendants by rejecting all elements of computation except the cost of the goods at Leeds plus the freight.

SHEE J. When a carrier fails to deliver, at the proper time, goods which have been entrusted to him to carry for reward, the person to whom they belong is entitled, after a reasonable time has elapsed, to supply himself with similar goods at the place where the carrier contracted to deliver them and to recover the cost of those goods from him. If there is a regular market for such goods at that place, it is clear that he has sustained no damage beyond the amount of what would

(a) 7 H. & N. 96.

1865.

O'HANLAN

V.

GREAT WESTERN Railway Company.

1865.

O'HANLAN

V.

GREAT WESTERN Railway Company.

have been the cost to him of his goods and of the difference between that cost and the market price where they ought to have been delivered to him of other goods of the same kind. If at that place there are no such commodities, except charged with a profit beyond their original price and the cost of their carriage, then that profit is an element of their market price and of the amount of his damage. But if there is no market and there are no persons from whom such goods can be bought at the place except at an excessive price, a reasonable construction of the rule laid down in Hadley v. Baxendale (a) would entitle the plaintiff to the reasonable price of the goods at that place, and that would be ascertained by calculating the probable profits which dealers who might sell goods of that kind there would make on the prime cost of the goods at the place of manufacture, and the cost of their carriage. Therefore, the direction to the jury was right; and they might properly give the plaintiff damages, including something for his profit on the transaction.

Rule discharged (b).

(a) 9 Exch. 341.

(b) See the next case.