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discount. Here the damages were assessed strictly according to the above rule, as qualified by the special evidence; and the deductions from the amount due on the original contract, as defined by the bill, were made according to the express incidents of the contract. But in an earlier case, where A. paid over a sum to B., to provide for a bill due from A. to C.; and B., instead of doing so, retained it for a payment due from A. to B.; A.'s assignees were held entitled in special assumpsit to recover the whole amount of the bill (b). Where a claim is liquidated, and interest is payable on it, either at common law or by statute, the measure of damages is the principal and interest of the money since the day it became due (c); and it has been suggested that similarly the measure of damages for non-delivery of a chattel would be the average profit to be made by the use of the chattel (d). But the claim here seems to have been more in the nature of unascertained and unliquidated damages, and so to be measured by the rules in Hadley v. Baxendale and other cases, which will be investigated subsequently. Generally, it has been said that "when damages are sought to be recovered for a breach of contract, they must be damages which are appreciable, capable of being stated, and capable of being estimated; and damages which are incapable of being appreciated or estimated, the court do not consider that the jury are at liberty to entertain when the action is on contract" (e).

(b) Hill v. Smith, 12 M. & W. 618. (c) Fletcher v. Tayleur, 17 C. B. 21.

(d) Ibid., per Jervis, C. J., and Willes, J.

(e) Hamlin v. Great Northern Railway, 1 H. & N. 408.

The above cases are examples of the rule of computation where the damages are liquidated and defined by the express terms of the contract. Where they are unliquidated, the rule of the common law is, that

Where a party sustains a loss by reason of a 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 (ƒ).

It is meant by this rule that the sufferer by a breach of contract is entitled to actual compensation for the pecuniary loss which he incurs by the breach, with due regard to its circumstances; and the damages will be proportionably reducible, if the plaintiff have aggravated them by his own neglect. Thus, if the breach be non-delivery of goods at a certain time, according to a contract of sale, the measure of damages for a breach is the difference between the contract price, and that for which similar goods might have been purchased in the market at or about the day when they ought to have been delivered (g). Accordingly, if a party do not avail himself of this right, and suffer subsequent loss from the omission, he cannot annex it to the original measure of damages (h). Thus, damages on breaches of contract for the purchase or sale of stock or railway shares are computed according to the market price of such stock or shares

(f) Per Parke, B., Robinson v. Harman, 1 Ex. 855.

(g) Dunlop v. Higgins, 1 H. of L. Cas. 403; cf. Chinery v. Viall, 5 H. & N. 288.

(h) Gainsford v. Carroll, 2 B. & C. 624.

In these cases also,

at the time of the breach (i). it appears that the damage must be direct and immediate; and not merely the loss of a non-personal profit, such as that which would have been gained by a vendee of the original purchaser (k). So, it appears that a vendee of railway shares can claim, as damages for non-delivery, only the difference between the stipulated price and the market price on the day of the breach; and not damages ultra for the increased value of the shares on a later day (1). But where stock is actually in existence, and the claim is in the nature of detinue for non-delivery, it appears that the damages will be the value of the stock at the time of trial (m).

Even where the plaintiff, owing to the discovery of the unsoundness of a horse which had been warranted sound by the defendant, had lost a profit, which he would have had on a completed bargain of resale, he was not allowed to claim the loss as special damage, because it did not appear that he had laid out any money on the horse (n).

When the purchaser of goods refuses to accept, the measure of damage is to be calculated according to the market value of the goods at the time when they were tendered, and when they ought to have been accepted; and not according to their market value at the time when the purchaser refused to accept (o). When in such a case the vendor has suffered any

P.

(i) Shaw v. Holland, 15 M. & W. 136.
(k) Peterson v. Ayre, 13 C. B. 353.
(1) Tempest v. Kilner, 3 C. B. 249.
(m) Owen v. Routh, 14 C. B. 327.
(n) Clare v. Maynard, 6 A. & E. 519.
(o) Philpotts v. Evans, 5 M. & W. 475.

P

special damage, as by having to pay compensation for the rescission of a sub-contract which he has entered into in order to be able to perform the substantive contract with the purchaser, it will be rightly considered by the jury in assessing the general damages of the breach (p).

When there is a complete breach before the day of performance, as by the defendant refusing to fulfil his share of the contract, the right of action accrues immediately, and the jury, in assessing damages, will be justified in looking to all that has happened, or was likely to happen, to increase or mitigate the loss of the plaintiff, down to the day of trial (9).

In contracts for the sale of land, a purchaser can recover only nominal damages for the mere loss of his bargain, where the vendor is, without fraud or gross negligence, incapable of making a title (r). But where there is fraud, or wilful laches on the part of the vendor, in holding out for sale property to which he cannot make a title, he will be liable in damages according to the special circumstances of the purchaser's loss (s). But there must be fraud, or gross negligence amounting to fraud, in the vendor's conduct; and where the defendant agreed to sell to the plaintiff, who, after an imperfect examination of the abstract of title, agreed to purchase, and contracted also to resell, but subsequently refused to complete, on account of a defect, and thereupon sued for the expenses of investigating the title, the expenses of resale, the profits

(p) Cort v. Ambergate, &c., Junction Railway, 17 Q. B. 127. (q) Hochster v. De Latour, 2 E. & B. 678.

(r) Pounsett v. Fuller, 17 C. B. 660.

(s) Hopkins v. Grazebrook, 6 B. & C. 31.

which he would have received from it, and the amounts in which he was liable to his own vendee; he was held entitled only to the expenses of investigating the title, and nominal damages for the breach, because no fraud was imputable to the defendant (t).

Where the breach is the act of the purchaser, the measure is the difference between the price fixed by the agreement, and the market value at the time when the purchase ought to have been completed (u). Accordingly, the damages will be nominal when these amounts are identical. Thus, where the defendant, after agreeing to purchase land, had been let into possession, and had derived profits from its produce, but had subsequently refused to complete the purchase; it was held that the plaintiff was not entitled to recover the whole purchase-money, but only such damages as had resulted from the defendant's breach of the contract, and that these were properly measured by a verdict for the interest on the purchase-money from the time of the breach up to the commencement of the action, added to the value of the profit which the defendant had derived from the land. Parke, B., said:"The measure of damages in an action of this nature is the injury sustained by the plaintiff, by reason of the defendants not having performed their contract. The question is, how much worse is the plaintiff by the diminution in the value of the land, or the loss of the purchase-money in consequence of the non-performance of the contract. It is clear he

cannot have the land and its value too.

A party

(t) Walker v. Moore, 10 B. & C. 415; cf. Sikes v. Wild, 1 B. & S. 587.

(u) Chinery v. Viall, 5 H. & N. 288.

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