entitled to sue them for precisely the same amount, it offers a good bar. As, if a man covenants not to sue A. B., and he does so, the covenant enures as a release. The allegation to be relied on here, is, that, by and through the negligent and improper conduct of the plaintiffs in effecting the insurance, the same became of no use or value, and the defendant, by reason of such improper conduct and deviation, had sustained damages to the amount of one-third of the freight so insured, and the plaintiffs thereby became liable to the defendant for the same,— being the amount claimed by the plaintiffs to be repaid and returned to them by the defendant,-and liable to make good to the defendant such amount *as he should have to return to the plaintiffs under the *66] charter-party." Now, such an allegation as that is a mere allegation of fact: it means, that, in consequence of the plaintiffs' negligence, the defendant has sustained damage. I do not think that the concluding allegation sufficiently identifies the sum mentioned in the plea with that sought to be recovered by the declaration, so as to bring it within the rule relied on. That which is complained of in the plea would give the defendant a right of action against the plaintiffs so soon as they were guilty of the negligence charged, and the defendant was thereby damnified. That which happened subsequently does not necessarily determine the amount of damages the defendant would be entitled to. A jury might have given exactly the same amount of damages before as after the loss. The question is, what damage has the party sustained at the time the cause of action vested in him. If nothing had happened, and a policy might then have been effected, the jury would consider what was probable: if the loss had then happened, they perhaps might have given the full amount; but they were not bound to do so there were a variety of circumstances which they might properly take into their consideration. Therefore, it is not a necessary and conclusive thing that the sum to be insured by the policy, neither more nor less, is the sum which the plaintiffs would have to pay; but a compensation for the injury resulting from their negligence. The amount of the loss actually sustained, if a loss has happened, and there is nothing peculiar in the circumstances, is a matter very fit to be considered by the jury in estimating the damages: but they are not bound by it; they are to take all the circumstances into their consideration, and to say what damages the party is upon the whole reasonably entitled to recover for the non-performance of that which he has contracted to perform. The jury, indeed, are bound not to give more than the *67] amount of the loss which has actually been sustained. The loss is not, however, to be necessarily treated as a liquidated amount,—an amount by which the jury are to be bound. The allegation, therefore, in this plea does not in my opinion bring the case within the rule as to circuity of action.

CRESSWELL, J.--I am entirely of the same opinion, and for the rea

sons so fully stated by my Brother Maule, viz. that there is no identity between the sum claimed by the plaintiffs in the declaration, and the damages which the defendant claims by his plea to be entitled to recover from the plaintiffs. The two sums not being necessarily the same, it follows that the defendant's right to sue for the latter cannot be pleaded under the rule as to the avoidance of circuity of action.

CROWDER, J.-I have entertained considerable doubts during the argument, and I must confess those doubts are not altogether removed: and, although my Lord and my two learned Brothers think otherwise, it is with considerable reluctance that I should come to the conclusion that the plea is no answer to the declaration. The rule as to the avoidance of circuity of action is in my opinion a just and valuable one; and it is important that a case should be brought within it, if possible. In point of fact and common sense, nobody can doubt, that, if these plaintiffs recover back the one-third freight to-day, and the defendant were to bring a cross-action against them, and to allege and prove that which is stated in this plea, the jury would be directed to give damages to precisely the same amount. That, perhaps, does not necessarily bring the case within the rule in question. Nor is the rule laid down by Professor Sedgwick quite clear upon the subject. The language quoted from Mr. Justice Washington, at p. 340, is certainly very strong: *The law is clear, that, if a foreign merchant who is in the [*68 habit of insuring for his correspondent here, receives an order for making an insurance, and neglects to do so, or does so differently from his orders, or in an insufficient manner, he is answerable, not for damages merely, but as if he were himself the underwriter, and he is of course entitled to the premium." It is not said, that, as a positive matter of law, he is responsible to that extent. It probably amounts to this, that the loss would be the reasonable measure of damages. The learned judge is referring to a course of dealing. The case before us arises upon a contract to insure the amount,-the precise amount,—which the plaintiffs are claiming under the charter-party to have returned to them and the question is, whether the breach of the engagement to insure does not so clearly entitle the defendant to recover from the plaintiffs the precise sum which they by their action are seeking to recover from him as to warrant the plea. If this had been a contract

of indemnity, there could have been no doubt. Inasmuch, however, as there is no authority precisely in point, I agree, though with great reluctance, and considerable doubt, in the conclusion to which the rest of the court have come. Judgment for the plaintiffs.

*69]

*FISCHEL v. SCOTT and Others. June 12.

A. contracted to sell to B. 100 hhds. of Gingelly oil "expected to arrive by the ship Resolute from Madras." The Resolute arrived with 100 hhds. of Gingelly oil on board, but it turned out that 34 hhds. only were consigned to or under the power or control of A. :— Semble, that this did not excuse A. for the non-performance of his contract, and that it would not be performed by a delivery or tender of the 34 hhds. over which he had control.

THIS was an action for non-delivery of a quantity of oil pursuant to

a contract.

The declaration stated, that, on the 19th of August, 1853, it was agreed by and between the plaintiff and the defendants, that the plaintiff should buy of the defendants, and that the defendants should sell to the plaintiff, the two under-mentioned parcels East India Gingelly oil expected to arrive from Madras, warranted of good merchantable quality, at 427. per ton duty-free, revenue tares and usual draft, to be paid for, at the landing weights, in fourteen days from each separate parcel being landed and ready for delivery after arrival, in ready money, allowing 21 per cent. discount, that is to say, forty-four hogsheads, by a vessel called the Koh-i-noor, and one hundred hogsheads by a vessel called the Resolute; and that, should either the above parcels Gingelly oil not turn out equal in quality to the warranty specified above, that contract was not to be cancelled on that account, but the same was to be taken with an allowance to be fixed by the brokers of the plaintiffs and defendants: That the plaintiff was always ready and willing to receive and pay for the said oil, and to perform his part of the said contract, and had done everything necessary to entitle him to have the same fulfilled : That the said one hundred hogsheads of Gingelly oil did so arrive as aforesaid in and by the said ship Resolute, within the true intent and meaning of the said agreement, and a reasonable time for the fulfilment of the said contract, and for the delivery of the said 100 hogsheads of oil by the defendants to the plaintiff elapsed before this suit: *Yet the defendants had not delivered *70] the said 100 hogsheads of Gingelly oil, or any part thereof, to the plaintiff; and, by reason of the said conduct of the defendants, the plaintiff had lost and been deprived of the benefit of the said bargain, and of great profits which would have accrued to him therefrom, and had also been rendered unable to fulfil other contracts entered into by him for the re-sale of the said oil, by reason whereof he had been obliged to pay large sums of money by way of damages to his buyers: And the plaintiff claimed 10007.

Third plea,—that, although one hundred hogsheads of Gingelly oil, and more, that is to say, 164 hogsheads of Gingelly oil, did arrive from Madras in and by the said ship Resolute, yet that the said ship was a general ship employed in and about the conveyance of goods for various persons unconnected with each other, and that thirty-four of the said

hogsheads of Gingelly oil, and no more, were shipped for or on account of the defendants; and that the residue of the said hogsheads of Gingelly oil, that is to say, 130 hogsheads thereof, were shipped for and on account of and to the order of other persons than the defendants, or any of them; and that the defendants had not, nor had any of them, then or at any time any property or interest in, or control or power to deliver, the said residue of the said hogsheads of Gingelly oil; and that the defendants, within a reasonable time after the arrival of the said 34 hogsheads of Gingelly oil, were ready and willing, and then tendered and offered to deliver the same to the plaintiff; yet that the plaintiff did not nor would accept or receive the same, but then wholly refused then or at any time to accept or receive the same, and wholly discharged the defendants from delivering the same to the plaintiff.

The plaintiff demurred to the third plea,-the ground of demurrer stated in the margin, being, "that, as one hundred hogsheads of Gingelly oil did arrive by the *vessel, the defendants were bound to deliver them, according to their contract."

[*71 Willes, in support of the demurrer. (a)-The facts disclosed on this record are these:-The Resolute being on her way from Madras to London, the defendants contracted to sell to the plaintiff 100 hogsheads of Gingelly oil, which they expected to arrive by that vessel consigned to them; and that, on the ship's arrival here, it was found that 34 hogsheads only of the hundred on board her were the property of the defendants. It has been decided that a contract of this kind is subject to the double contingency of the arrival of the vessel named, and of the goods being on board: the question now sought to be raised is, whether it is subject to the further contingency of the goods belonging to the vendor, or being subject to his control. It is submitted that there is nothing upon the face of this contract to limit it in the way suggested. The construction of the contract would be precisely the same, if, instead of being described as "100 hhds. by a vessel called the Resolute," the oil had been described as marked with a diamond, or any other mark or brand. [MAULE, J.-The oil is described pretty clearly the question is whether the oil which came was oil "expected to arrive per Resolute." JERVIS, C. J.-It is quite inconsistent with this plea that the oil contracted to be sold to the plaintiff did not arrive by the Resolute. The oil which was expected did arrive. [*72 The defendant expected it to come consigned to him: but it turned out that it was consigned to some one else.] The substance of the plea, is, that the oil, whether expected or not, was not the defend(a) The points marked for argument on the part of the plaintiff, were,-"That the third plea was bad, because it showed that the 100 hogsheads did arrive, and the defendants had no sufficient excuse for not delivering them; that the defendants should have ascertained that the 100 hhds. were theirs before contracting to deliver them; that the contract implied a warranty, that, if the vessel arrived, and there were 100 hhds. on board, the defendant could and would deliver them; and that the plea was consistent with the arrival of the 100 hhds. contracted for."

ants' property that clearly is no answer. The case of Hayward v. Scougall, 2 Campb. 56, is distinguishable from this. There, the defendants sold to the plaintiff certain hemp, to be shipped at Riga, under the following sold-note,- Sold for Messrs. Scougall & Co., for Messrs. Maynard & Co., all the sound marketable Riga hemp that may be loaded by the Pilgrim, Webster, and one or two other ships, not exceeding 300 tons, now at Riga, by the supercargo of the said vessels, or Messrs. Schmids & Co., the agents of the concern; the names of the ships to be given up when received, at 817. per ton, &c." Schmids & Co. shipped on board these vessels only 71 tons of hemp on account of the defendants, but upwards of 300 tons on account of other persons and it was held, that the contract must be confined to such hemp as Schmids & Co. should ship as agents to the defendants, and that the defendants were not answerable to the plaintiffs for more than the 71 tons. And Lord Ellenborough said: "As all the hemp which the Schmids were to ship at Riga was not to belong to the defendants, this renders it improbable that they should mean to sell what was not their own. In the case alluded to, (a) the party had agreed to ship and deliver a certain quantity of hemp, and, to be sure, nothing could excuse him from doing so. But here the defendants only sold what they supposed their agents would ship for them. No doubt, they expected Schmids and Co. to ship at least 300 tons of hemp on their account; but they were disappointed. They seem to have contemplated the possibility of this. They say in substance, We will sell you all that our agents *at Riga send for us, to the amount of 300 tons. *73] If they send us so much, you shall have it: if they send us none, we have sold none to you.' The words employed are by no means strong enough to intimate that they had undertaken to sell that which did not belong to them, and over which they had no control. They only refer to the hemp shipped by Schmids & Co. as their own agents. Agents of the concern' must mean agents quoad hoc, not general agents in the Baltic trade." Splidt v. Heath is very similar to Johnson v. Macdonald, 9 M. & W. 600.† There, the defendant by a bought and sold-note agreed to sell the plaintiffs "100 tons of nitrate of soda, at 188. per cwt., to arrive ex Daniel Grant, to be taken from the quay at landing weights, &c. ;" and below the signature of the brokers there was the following memorandum,- Should the vessel be lost, this contract to be void :" and it was held, that the contract did not amount to a warranty, on the part of the seller, that the nitrate of soda should arrive if the vessel arrived; but to a contract for the sale of goods at a future period, subject to a double condition, of the arrival of the vessel, with the stipulated cargo on board. And Alderson, B., said: "It is more rational to construe the words to arrive' in the light of a condition, than as amounting to a warranty." [JERVIS, C. J.-How

(a) Splidt r. Heath, 2 Campb. 57, n.