Gainsford v. Carroll

2 B. & C. 624
107 Eng. Rep. 516

GAINSFORD
v.
CARROLL.

[624] GAINSFORD against CARROLL AND OTHERS. Thursday, February 12th, 1824,

In assumpsit for not delivering goods upon a given day, the true measure of damages is the difference between the contract price and that which goods of a similar quality and description bore, on or about the day when the goods ought to have been delivered.

[S. C. 4 D. & R. 161; 2 L. J. K. B. O. S. 112.]

Assumpsit for the non-performance of three contracts entered into by the defendants with the plaintiff for the sale of fifty bales of bacon, to be shipped by them from Waterford, in the months of January, February, and March 1823 respectively. The defendant suffered judgment by default, and, upon the execution of the writ of enquiry in London, the secondary told the jury that they were at liberty to calculate the damages according to the price of bacon on the day when the enquiry was executed, and that the difference between that and the contract price ought to be the measure of damages. Parke had obtained a rule nisi for setting aside the enquiry on the ground that the plaintiff was only entitled to recover the difference between the contract price and the price which the article bore at or about the time when, by the terms of the contract, it ought to have been delivered. He cited Leigh v. Paterson (8 Taunt. 540), in which the Court of C. P. intimated an opinion that the damages should be calculated according to the price of the day on which the contract ought to have been performed. This is different from the case of a loan of stock; there the lender, by the transfer deprives himself of the means of replacing the stock, he has not the money to go to market with, but in the case of a purchase of goods, the vendee is in possession of his money, and be has it in his power, as soon as the [625] vendor has failed in the performance of the contract, to purchase other goods of the like quality and description, and it is his own fault if he does not do so.

Wilde contra contended that the rule which had been laid down, as to the measure of damages, for not replacing stock, applied to the present, and he cited Stevens v. Johnson (2 East, 211), and M'Arthur v. Lord Seaforth (2 Taunt. 257).

Per Curiam. Those cases do not apply to the present. In the case of a loan of stock the borrower holds in his hands the money of the lender, and thereby prevents him from using it altogether. Here the plaintiff bad his money in his possession and he might have purchased other bacon of the like quality the very day after the contract was broken, and if he has sustained any loss, by neglecting to do so, it is his own fault. We think that the under sheriff ought to have told the jury that the damages should be calculated according to the price of the bacon at or about the day when the goods ought to have been delivered.

Rule absolute.