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Alexander v. Gardner 1 (butter : bill at two months), and
Fragano v. Long" (hardware, Birmingham to Naples).

(3.) Nothing in this section shall prejudice the right of the seller in Scotland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be.

50.-(1.) Where the buyer wrongfully neglects Damages for or refuses to accept and pay for the goods, the ance.

, seller may maintain an action against him for damages for non-acceptance.

(2.) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract.

(3.) Where there is an available market for the goods in question the measure of damages is primâ facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept.

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(1.) See “ Bullen & Leake," 3rd ed., p. 239.
In Laird v. Pims (possession of land), Parke, B., said,

Hodges,

1 i Bing. N. C. 671; 1 Scott, 281, 630 ; 3 D. P. C. 146 ; 147. [1835.]

2 4 B. & C. 219; 6 D. & R. 283. [1825.] 37 M. & W. 478; 8 D. P. C. 860. [1841.]

"The measure of damages ... 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 loss of the purchase-money in consequence of the non-performance of the contract.”

And in Cort v. Ambergate, dc., Railway Co.? (railway chairs countermanded), Coleridge, J., directed the jury that the plaintiffs, if they gained a verdict, were entitled to be put into the same situation as if they had completed their contract, and this direction was subsequently held to have been correct by the Court.

(2.) The rule laid down in Hadley v. Baxendale 2 (broken mill-shaft : carriage) by Alderson, B., was, “Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive 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.” See section 58 (2), infra.

(3.) Boorman v. Nash) was an action for not accepting oil. Lord Tenterden, C.J., in giving judgment, said: “The amount of the damage sustained must therefore be ascertained by the difference between the price which the defendant contracted to pay, and that which might have been obtained for the oil on the days when the contract ought to have been completed.”

And Phillpotts v. Evans 4 (an action for not accepting wheat), followed Leigh v. Patterson, (tallow in December, 658. per cwt.), in deciding that the proper measure of damages was the difference between the contract price and

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117 Q. B. 127 ; 20 L. J. Q. B. 460 ; 15 Jur. 877. [1851.]
? 9 Ex. 341, 354 ; 23 L. J. Ex. 179 ; 18 Jur. 358. [1854.]

9 B. & C. 145, 152. [1829.]
4 5 M. & W. 475. [1839.]
• 2 Moore, 588; 8 Taunt. 540. (1818.]

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the market price on the day when the wheat was tendered to the defendant at Birmingham, and refused, and not on the day when the seller received notice that the defendant refused to accept. Later, in 1846, Tindal, C.J., enunciated the rule in the Exchequer Chamber, in Barrow v Arnaudi (wrongful detention of wheat), as follows : “Where a contract to deliver goods at a certain price is broken, the proper measure of damages, in general, is the difference between the contract price and the market price of such goods at the time when the contract is broken, because the purchaser, having the money in his hands, may go into the market and buy. So, if a contract to accept and pay for goods is broken, the same rule may be properly applied, for the seller may take his goods into the market and obtain the current price for them.” And Jessell, M.R., said, in E:x parte Stapleton? (mixed maize). “If the contract is broken, the damages for the breach are plainly, if the market is failing, the difference between the contract price and the price obtained on the re-sale.”

non-delivery.

Remedies of the Buyer. 51.—(1.) Where the seller wrongfully neglects Damages for or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery.

(2.) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller's breach of contract.

See the judgments cited above, section 50.
the buyer may maintain an action. He must aver

1

8 Q. B. 595, 604, 609 ; 10 Jur. 319. [1846.]

2 10 Ch. D. 586, 590; 40 L. T. 14; 27 W. R. 327. [1879.] N.S.G.

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readiness to accept and pay for the goods : Morton v. Lamb 1 (200 quarters of wbeat).

neglects or refuses to deliver.—The seller is equally responsible for the delivery when the goods are in the hands of a bailee. See supra, section 27: Buddle v. Green? (slates at Camden wharf).

(2.) directly and naturally resulting.–See section 50 (2). In Hanimond & Co. v. Bussey(steam coal), it was held that the costs of an action unsuccessfully defended by the buyers against their sub-buyers could be recovered from the original sellers, under the rule in Hadley v. Baxendale, given above, section 50 (2).

In Chinery v. Vialls (sheep resold before buyer's default), the measure of damages was settled by Bramwell, B., where the seller was guilty of conversion of the chattels sold by reselling them. See section 52. For the other cases, see sub-section (3), infra.

(3.) Where there is an available market for the goods in question the measure of damages is primâ facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.

available market. - Where there is no market, see Grébert-Borgnis v. Nugent 6 (skins for French subcontract), which followed Elbinger Actien-Gesellschafft v. Armstrong (wheels and axles for Russian waggons) as

17 T. R. 125. [1797.]
2 27 L. J. Ex. 33 ; 2 C. L. R. 517. [1857.]
3 20 Q. B. D. 79; 57 L. J. Q. B. 58. [1887.]
4 9 Ex. 341 ; 23 L. J. Ex. 179; 18 Jur. 358. (1854.]
5 5 H. & N. 288; 29 L. J. Ex. 180 ; 8 W. R. 629. [1860.]
6 15 Q. B. D. 85, 89; 54 L. J. Q. B. 511. [1885.]

i L. R. 9 Q. B. 473 ; 43 L. J. Q. B. 211; 30 L. T. 871 ; 23 W. R. 127. (1874.]

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being preferable to (if really differing from) Borries v. Hutchinson 1 (caustic soda for Russian sub-buyer), which was followed by Hinde v. Liddell ? (grey shirtings : no market).

In the first case quoted, Brett, M.R., said, 3 “ If there be no market for the goods, then the sub-contract by the plaintiff, although not brought to the knowledge of the defendant, the original vendor, may be put in evidence, in order to show what was the real value of the goods, and so enable the plaintiff to recover the difference between the contract price and the real value ...

.. (see below); and Bowen, L.J., said (at p. 93)..."It seems to me that in a case of this sort, where there was no market into which the parties could go and buy against the broken contract, the natural result, which must have been contemplated at the time the original contract was made, must have been that there would be a liability by the purchaser to his sub-purchaser. It was for the judge [sitting without a jury] to do the best he could with regard to the amount which he might assess in respect of this

ineasure of damages. The following cases indicate the application of the rule.

Leigh v. Patterson.—Breach of contract to deliver tallow in December at 65s. per cwt. : notice repudiating contract given October 1st: market rising. Plaintiff could recover the difference between the contract price and the market price on the last day of December (81s.): Dallas, C.J., and two other judges.

Startup v. Cortazzi. —Breach of contract to deliver linseed by notice of intention not to deliver; plaintiffs entitled to the difference between the contract price and the price of the goods, "when the cargo would have

1 18 C. B. N. S. 445; 34 L. J. C. P. 160 ; 11 Jur. N. S. 267; 11 L. T. 771 ; 13 W. R. 386. [1865.]

? L. R. 10 Q. B. 265 ; 14 L. J. Q. B. 105 ; 32 L. T. 449; 23 W. R. 650. (1875.]

3 15 Q. B. D. 85, 89 ; 54 L. J. Q. B. 511. [1885.)
4 8 Taunt. 540 ; 2 Moore, 588. [1818.]
02 C. M. & R. 165. [1835.]

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