arrived in due course according to the contract." The plaintiff proved no special damage: Lord Abinger, C.B., Bolland and Alderson, BB.

Barrow v. Arnaud1 (wrongful detention of wheat).— Tindal, C.J., "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.”

Hadley v. Baxendale.2-Alderson, B., lays down the proper rule: "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."

Brady v. Oastler 3 (7,000 knapsack slings at 38. 9d.).Pollock, C.B., said, "The buyer of goods under a general contract for the sale of them with or without reference to a particular time of delivery, is entitled to damages with reference to the market price of the goods at the time the contract is broken, and I think he is not entitled to more or to less on account of the manner in which the parties agreed about the price, unless that is disclosed in the contract and made a part of it."

4

Williams v. Reynolds (500 piculs cotton: resale before delivery). Crompton, J., described Dunlop v. Higgins as a Scotch case indicating Scotch law, but not binding here: his lordship referred to Mayne on Damages,

5

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

29 Ex. 341, 354; 23 L. J. Ex. 179; 18 Jur. 358. [1854.]

3 3 H. & C. 112, 128; 33 L. J. Ex. 300; 11 L. T. 681; 11 Jur. N. S.

22. [1864.]

4 34 L. J. Q. B. 221, 222; 6 B. & S. 495; 12 L. T. 728; 11 Jur. N. S. 973. [1865.]

5 1 H. L. C. 381; 12 Jur. 295. [1848.]

and said, "What is the measure of damages? In general, the difference between the contract price and the real or market-price at the time of breach." The plaintiff's loss of profits on resale is not the measure of damages as it is not the "natural consequence."

Blackburn, J., said (p. 223), “The plaintiff might have gone into the market and supplied the cotton for his subcontract from thence."

1

2

Brown v. Muller 1 (considered in Roper v. Johnson, post).—Contract for delivery of 500 tons of iron in monthly parcels, September, October, November. Notice of intention not to deliver given in August: action brought in December, measure of damages :-the sum of the differences between the contract and market prices of one-third of 500 tons on the last day of each of the three months. Kelly, C.B., said (p. 321), "Now the proper measure of damages is that sum which the purchaser requires to put himself in the same condition as if the contract had been performed.

Therefore the plaintiff will be entitled to recover, altogether, the sum of the three differences at the end of the three months respectively." Boorman v. Nash,3 and Josling v. Irvine, decide the matter (Martin, B.).

Roper v. Johnson.2-Contract for 3,000 tons of coal to be delivered during four months; the period for delivery of the last instalment had not expired at time of action. Keating, J., said (p. 175), “. . . repudiation of the contract was accepted by the plaintiffs on the 3rd of July, when they brought this action for the non-performance of it." Brett, J., said, "In the case of marketable goods, the rule as to damages for breach of the contract to deliver is the difference between the contract price, and the market price on the day of breach"; and at p. 180, ". . . the election to take advantage of the repudiation of the contract goes only to the question of breach, and not to the

L. R. 7 Ex. 319; 41 L. J. Ex. 214; 27 L. T. 272; 21 W. R. 18. [1872.]

2 L. R. 8 C. P. 167; 42 L. J. C. P. 65; 28 L. T. 296; 21 W. R. 384, [1873.]

3 9 B. & C. 145. [1829.]

4 6 H. & N. 512; 30 L. J. Ex. 78; 4 L. T. 251. [1861.]

question of damages, and when you come to estimate the damages, it must be by the difference between the contract price and the market price at the day or days appointed for performance, and not at the time of breach." Following the judgment of Cockburn, C.J., in Frost v. Knight.

Elbinger Actien - Gesellschafft, &c. v. Armstrong 2 (wheels and axles for Russian waggons).-Although the plaintiffs communicated a sub-contract to the defendants, and were obliged to pay damages to sub-buyers owing to the defendant's default they were not entitled as a matter of right to the amount of these penalties as damages, but the jury might reasonably assess the damages at that amount. See p. 476, judgment of the Court delivered by Blackburn, J.

Hinde v. Liddell3 (following Borries v. Hutchinson 1). -The defendant contracted to supply 2,000 pieces of grey shirting for shipment; there was no market; upon breach by the defendant the plaintiff got the nearest he could to the goods ordered, at an increased price. He was entitled to recover the difference.

The Hydraulic Eng. Co. v. McHaffie.—The defendants contracted with the plaintiffs to make "as soon as possible" part of a machine which the latter were making for J. The defendants delayed and the machine was refused by J. The plaintiffs were entitled to recover damages for loss of profit upon their contract with J., and for expenditure uselessly incurred by them in making other parts of the machine, &c. Bramwell, L.J., saido (p. 674), "The fact that a binding agreement has been

1 L. R. 7 Ex. 111; 41 L. J. Ex. 78; 26 L. T. 77; 20 W. R. 471. [1872.]

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

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

4 18 C. B. N. S. 445; 34 L. J. C. P. 160; 11 Jur. N. S. 267; 11 I. T. 771; 13 W. R. 386. [1865.]

5 4 Q. B. D. 670; 27 W. R. 221. [1878.]

6 4 Q. B. D. 674.

arrived at does not of itself create a responsibility for all the injury flowing from a breach of it; the wrongdoer is prima facie only liable for the natural and ordinary consequences of the breach, but where at the time of entering into the contract both parties know and contemplate that if a breach of the contract is committed some injury will accrue, in addition to the natural and ordinary consequences of the breach, the person committing the breach will be liable to give compensation in damages upon the occurrence of that injury; and where the contractee states that he wants the article agreed to be made in order to help him to carry out another contract, the contractor, if he commits a breach in the delivery of the article, is liable for the loss sustained by the contractee if he becomes unable to carry out that other contract."

Cotton, L.J., said,1 « We must follow out the rule that the plaintiffs are only to have the damages which are the ordinary and natural consequences of the breach; but this rule is subject to the limitation that, where the breach has occasioned a special loss, which was actually in contemplation of the parties at the time of entering into the contract, that special loss happening subsequently to the breach, must be taken into account."

Penalties are not the natural consequences of a breach. Grébert-Borgnis v. Nugent.2-The judgment of Brett, M.R., quoted above, continues :-"But where the subcontract was fully made known to him (defendant) in all its terms, in my opinion the defendant would be liable.

It seems to me that the cases establish that the original vendor is to be liable to so much of the subcontract as was made known to him, but only to that extent."

formance,

52. In any action for breach of contract to Specifi per deliver specific or ascertained goods the court

may, if it thinks fit, on the application of the

14 Q. B. D. 677.

2 15 Q. B. D. 85, 90; 54 L. J. Q. B. 511. [1885 Į

plaintiff, by its judment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the court may seem just, and the application by the plaintiff may be made at any time before judgment or decree.

The provisions of this section shall be deemed to be supplementary to, and not in derogation of, the right of specific implement in Scotland.

See the Mercantile Law Amendment Act, 1856, section 2,1 post, Appendix, p. 162.

The power given by the Common Law Procedure Act, 1854, section 78, to order that execution should issue for the return of a chattel without giving the defendant the option of retaining it and paying the value assessed, was replaced by Rules of the Supreme Court, Order XLVIII. r. 1, which is as follows:-Writ of delivery. 1. Where it is sought to enforce a judgment or order for the recovery of any property, other than land or money, by writ of delivery, the Court or a judge may, upon the application of the plaintiff, order that execution shall issue for the delivery of the property, without giving the defendant the option of retaining the property, upon paying the value assessed, if any, and that if the property cannot be found, and unless the Court or a judge shall otherwise order, the sheriff shall distrain the defendant by all his lands and chattels in the sheriff's bailiwick, till the defendant deliver the property, or at the option of the

119 & 20 Vict. c. 97, s. 2.