OBS. breaks his contract, the proper damages are such as may fairly and reasonably be considered either as arising naturally from the breach of contract, or such as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract as the probable result of it. Hadley v. Baxendale, 9 Ex. 341; [Wilson v. Newport Dock Co. L. R. 1 Ex. 177;] Smeed v. Toord, 1 El. & El. 602; Portman v. Middleton, 4 C. B. N. S. 322; [Scott v. Boston & New Orleans Steamship Co. 106 Mass. 468; Williams v. Reynolds, 6 B. & S. 495; Cate v. Cate, 50 N. H. 149; Horne r. Midland Railway Co. L. R. 8 C. P. 131, and remarks in this case on Hadley v. Baxendale, supra; 2 Chitty Contr. (11th Am. ed.) 1325, and note (h), where this subject is fully discussed, and the cases cited; Ogle v. Vane, L. R. 2 Q. B. 275; L. R. 3 Q. B. 272; Cory v. Thames &c. Co. L. R. 3 Q. B. 181; British Columbia Saw Mill Co. v. Nettleship, L. R. 3 C. P. 499.] In Fletcher v. Tayleur, 17 C. B. 21, Jervis C. J. and Willes J. were of opinion that, as in the case of breach of a contract to pay money, the interest of the money is the measure of damages; so in the case of a breach of contract to deliver a chattel, the measure of damages should be the average profit made by the use of such chattel. See, also, Ger v. The Lancashire & Yorkshire Railway Co. 6 H. & N. 211. The purchaser has now a further remedy than by action for non-delivery. He may have a specific delivery of the goods. By the mercantile law amendment act, 1856, 19 & 20 Vict. c. 97, s. 2, it is enacted, "In all actions and suits in any of the superior courts of common law at Westminster, or Dublin, or in any court of record in England, Wales, or Ireland, for breach of contract to deliver specific goods for a price in money, on the application of the plaintiff, and by leave of the judge before whom the cause is tried, the jury shall, if they find the plaintiff entitled to recover, find by their verdict what are the goods in respect of the non-delivery of which the plaintiff is entitled to recover and which remained undelivered; what (if any) is the sum the plaintiff would have been liable to pay for the delivery thereof; what damages (if any) the plaintiff would have sustained if the goods should be delivered under execution, as hereinafter mentioned, and what damages if not so delivered; and thereupon, if judgment shall be given for the plaintiff, the court, or any judge thereof, at their or his discretion, on the application of the plaintiff, shall have power to order execution to issue for the delivery, on payment of such sum (if any) as shall have been found to be payable by the plaintiff as aforesaid, of the said goods, without giving the defendant the option of retaining the same upon paying the damages assessed; and such writ of execution may be for the delivery of such goods; and if such goods so ordered to be delivered, or any part thereof, cannot be found, and unless the court, or such judge or baron as aforesaid, shall otherwise order, the sheriff, or other officer of such court of record, shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick, or within the jurisdiction of such other court of record, till the defendant deliver such goods, or, at the option of the plaintiff, cause to be made of the defendant's goods the assessed value or damages, or a due proportion thereof; provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant's goods the damages, costs, and interest in such action or suit." 1. Indebitatus Count for Goods bargained and sold. Ante, 33, 34. (0) 2. Indebitatus Count for Goods sold and delivered. (0) This form is given by the C. L. P. Act, 1852, sch. B, 1. As to when it lies, see ante, 28. (p) As to when the common indebitatus count lies, see ante, 27. 3. Vendor against Vendee of Goods sold, for not accepting them. (q) For that the defendant bought of the plaintiff, and the plaintiff sold to the defendant, certain goods [or state the kind of goods], at a certain price, and upon the terms that the said goods should be delivered by the plaintiff to the defendant, and accepted and paid for by him; and [here aver performance of conditions precedent, as ante, 39], yet the defendant did not accept or pay for the same, whereby the plaintiff has incurred expense in keeping the said goods, and in endeavoring to procure the completion of the said contract by the defendant, and has been forced to resell (r) the said goods for a less price than the price to have been paid by the defendant, and has incurred the costs and charges of such resale. [Add account stated.] * 4. Vendor against Vendee, on his Promise to pay for Goods by a good Bill of Exchange. (t) For that the plaintiff sold to the defendant, and the defendant bought of the plaintiff, forty tons of iron, on the terms that they should be paid for by bill of exchange drawn at three months' date, or made equal to cash in three months, on delivery of the said goods, such bill to be satisfactory to the plaintiff; and the plaintiff delivered the said iron to the defendant upon the terms aforesaid; and [here aver performance of conditions precedent, as ante, 39], yet the defendant hath not paid the price of the said iron by a bill of exchange as aforesaid, whereby the plaintiff hath lost and been deprived of the use and benefit of the said bill, and is otherwise injured. (7) See forms, &c. Boyd v. Lett, 2 D. & L. 847; S. C. 1 C. B. 222; Macdonald v. Longbottom, 28 L. J. Q. B. 293; [1 El. & El. 977; Graves v. Legg, 9 Ex. 709; Jones v. Clarke, 2 H. & W. 725.] See forms on bought and sold notes, Lucas v. Bristowe, 27 L. J. Q. B. 364; [El., Bl. & El. 907;] Beckh v. Page, 5 C. B. N. S. 708. Another form may be adapted from that for not accepting railway shares, ante, 228, form 4. [Specific goods. Right to reject. Heyworth . Hutchinson, L. R. 2 Q. B. 447.] (7) If the vendee refuse to pay for the goods, the vendor may resell and sue specially for the loss on the resale. Maclean e. Dunn, 4 Bing. 722; Hone v. Milner, Peake R. 58, 3d. ed.; [1 Chitty Contr. (11th Am. ed.) 599, 600; Benj. Sales (1st Am. ed.), § 782 et seq., § 788; 2 Kent, 495, 504; Sargent J. in Gordon v. Norris, 49 N. H. 383; Sands v. Taylor, 5 John. 395; Eastman J. in Warren v. Buckminster, 24 N. H. 336, 344; Pollen v. Le Roy, 30 N. Y. 558; Haines v. Tucker, 50 N. H. 307, 313; Appleton v. Hogan, 9 B. Mon. 69; Redmond v. Smock, 28 Ind. 365; Saladin v. Mitchell, 45 Ill. 80; M'Combs v. M'Kennan, 2 Watts & S. 216.] Sed vide Greaves v. Ashlin, 3 Camp. 426. If the vendor has not resold, he may recover the full price of the goods if that price was to be paid on a named day, nor is it necessary for him to show that any specific goods were appropriated. Dunlop r. Grote, 2 C. & K. 153; [Benj. Sales (1st Am. ed.), § 762. Vendee is justified in refusing to receive goods when more are sent than have been ordered. Levy v. Green, 1 El. & El. 968.] (t) See forms, Fair v. M'Iver, 16 East, 130; ante, 239; Gordon v. Whitehouse, [18 C. B. 747 ;] 25 L. J. C. P. 300; Clementson v. Blessig, 11 Ex. 135. And for not delivering goods to be paid for by bill, Griffiths v. Perry, 28 L. J. Q. B. 204; [1 El. & El. 680;] law, ante, 27, 28. Where a bill is to be given, the price of the goods cannot be recovered on the common counts until the period of credit has expired. Paul v. Dod, 2_C. B. 800; Mussen v. Price, 4 East, 147; Dutton v. Solomonson, 3 B. & P. 582; [1 Chitty Pl. 357.] But if the credit has expired, then the common count suffices. Ib. Where goods are sold and delivered to be paid for by a bill at a certain date, if the bill be not given, interest on the price, from the time when the bill would have become due, may be recovered as part of the estimated value of the goods on the common count for goods sold and delivered. Farr v. Ward, 3 M. & W. 25. 5. Vendor against Vendee, for not giving Security for the Price of Goods sold by Auction, according to the Conditions, the Credit not having expired. (u) For that the plaintiff caused to be put up and exposed to sale by public auction, in lots, certain goods and chattels, one of the said lots being a horse, upon the terms that the highest bidder should be the purchaser; that the purchaser should be allowed seven months' credit for the payment of the prices, after giving such security as should be approved of by J. W. P. on the part of the said plaintiff, or that such purchasers respectively should at their election pay down the price of the lots purchased by them respectively at the time of the said sale, and in that event that a certain sum should be deducted by way of discount from the amount of the purchase-moneys to be paid by such purchasers respectively, at the rate of £5 per cent. thereon; of all which the defendant had notice; and the defendant became the purchaser of the said horse, upon the terms aforesaid, for £7 13s., and the plaintiff delivered the said horse to the defendant as such purchaser; and although [here aver performance of conditions precedent, as ante, 39], yet the defendant hath not paid him the said sum of £7 13s., or given any security as aforesaid for the same. [Add account stated.] 6. Vendor against Vendee, for not accepting Goods which were to have been delivered in Parcels on different Days, and to be paid for on Delivery, with a Discount, &c. (x) Commencement as ante, 5.] For that the defendant bought of the plaintiff, and the plaintiff sold to the defendant, a quantity of oil, at a certain rate or price for each ton thereof, usual allowance, to be free delivered, half in the month of February then next, and the remainder in the month of March then next, to be paid for upon each delivery in ready money, allowing £2 10s. per cent. discount, half of the oil to be delivered in the last fourteen days in February aforesaid, and the other half to be delivered in the last fourteen days in March aforesaid; and although the plaintiff was ready and willing and offered to deliver the said oil to the defendant as aforesaid, according to the terms aforesaid, of all which the defendant had notice [here aver performance of conditions precedent, as ante, 39], yet the defendant did not accept the said oil, or pay for the same as aforesaid, whereby [&c. as before, Form 3, from the add account stated.] 7. For not accepting Goods which were to be manufactured for a Railway Company, showing a Wrongful Discharge from further proceeding with the Manufacture. Scott v. Eastern Counties Ry. 12 M. & W. 33; and see similar forms, Pontifex v. Wilkinson, 1 C. B. 75; Cort v. Ambergate Ry. [17 Q. B. 127.] (u) See another form for not clearing away and paying for goods sold by auction, according to conditions of sale, Pettitt v. Mitchell, 4 M. & G. 819. (x) See forms, Boorman e. Nash, 9 B. & C. 145; Hoare v. Rennie, [5 H. & N. 19; Baker v. Firminger, 28 L. J. Ex. 130.] As to the measure of damages, see Obs. ante, 235. 8. For not taking away from Plaintiff's Land Timber sold by him to Defendant. (y) For that the plaintiff sold to the defendant, and the defendant bought from the plaintiff, a quantity of timber, at the rate or price of 18d. for each foot thereof, to be carried away by the defendant from the lands of the plaintiff, whereon the same then were, within a reasonable time, and to be paid for by the defendant, when so carried away; and although [here aver performance of conditions precedent, as ante, 39], yet the defendant hath not, although requested by the plaintiff so to do, carried away the said timber from the said lands, or paid the plaintiff for the same. [Add account stated.] 9. For not paying for or returning a Horse received by Defendant on Trial. (z) For that in consideration that the plaintiff, at the request of the defendant, would deliver a gelding of the plaintiff, to be had and used on trial by the defendant, he the defendant promised the plaintiff to return the same to the plaintiff within a reasonable time, or to pay him for the same; and the plaintiff avers that he did deliver the said gelding to the defendant to be had and used on trial by the defendant as aforesaid, yet the defendant did not return the said gelding to the plaintiff, though a reasonable time has elapsed, nor hath he paid for the same. [Add account stated.] 66 10. On a Contract for the purchase of Hemp to be delivered at a Named Place in the Months of September and October," and to be paid for by the Buyer's Acceptance, payable Six Months from Date of Invoice and Delivery. (a) Commencement as ante, 5.] For that the plaintiffs, at the request of the defendant, bargained and sold to the defendant a large quantity of St. Petersburg clean hemp, of the import of the year 1813, to be delivered at Hull, of fair merchantable quality and good condition, in the months of September and October then next, to be paid for by the defendant's acceptance, payable in London at six months from the date of the invoice and delivery; and although the plaintiffs were ready and willing (b) to have delivered at Hull to the defendant the said hemp in the time aforesaid, and always have been and still (y) Smith v. Surman, 9 B. & C. 561. (z) Where goods are sold under a contract of "sale or return," they pass to the purchaser, subject to an option in him to return them within a reasonable time, and if he fails to exercise that option within a reasonable time, the price of the goods may be recovered, as upon an absolute sale in an action for goods sold and delivered. Moss v. Sweet, 16 Q. B. 493; Beverly v. Lincoln Gas Light Co. 8 Ad. & E. 829; ante, 27; [Schlesinger v. Stratton, 9 R. I. 478; Dear horn v. Turner, 16 Maine, 17; Perkins v. Douglass, 20 Maine, 317; Walker v. Blake, 37 Maine, 373; Sargent v. Gile, 8 N. H. 327, 328; Porter r. Pettengill, 12 N. H. 300, 301; Meldrum v. Snow, 9 Pick. 441; Crocker v. Gullifer, 44 Maine, 491; Benj. Sales (1st Am. ed.), § 597.] (a) The following 'was the form of the agreement or broker's note: "Hull, August 13, 1813.- Sold for account of Messrs. M. & Sons to Mr. G. G., ten tons of St. Petersburg clean hemp, of this year's import, and to be delivered at Hull of fair merchantable quality and good condition in all the months of September and October next, at £84 per ton, payment per the buyer's acceptance, payable in London six months from date of invoice and delivery." Form for not accepting goods to be delivered at a particular place, Philpotts v. Evans, 5 M. & W. 475. (b) This averment seems sufficient. Rawson v. Johnson, 1 East, 203; Waterhouse v. Skinner, 2 B. & P. 447; ante, 172, note (t). are ready and willing to deliver the same at Hull to the defendant, and the plaintiff's delivered to the defendant an invoice of the said hemp, and drew a bill of exchange for the amount of the purchase-money of the said hemp, payable at six months date, and requested the defendant to accept the same according to the terms of the said bargain and sale; and although [here aver performance of conditions precedent, as ante, 39], yet the defendant did not accept the said bill of exchange, and has not paid for the said hemp. 11. Vendee against Vendor, for not delivering Goods. (c) For that the plaintiff bargained and agreed with the defendant to buy of him, and the defendant then sold to the plaintiff, certain goods [or "chests of tea”], at £—————, to be delivered by the defendant (d) to the plaintiff on [&c. or "on request," or "at," according to the fact], and to be paid for by the plaintiff to the defendant on delivery [or "as follows," &c.; if it be paid for by bill, state the fact, alleging a readiness to accept or give it, &c.]; and although [here aver performance of conditions precedent, as ante, 39], (e) yet the defendant did not deliver the said goods to the plaintiff, whereby the plaintiff hath been deprived of the gains and profits which would have accrued to him from the delivery of the said goods. [Add account stated.] [11a. Another Form for Same. And the plaintiff says he purchased of the defendant the following goods, viz : for the sum of one hundred dollars, to be paid therefor on delivery thereof; and the defendants promised to deliver the same on the day of at the defendant's store in ; and on said day the plaintiff demanded said goods at said store, and tendered to the defendant said sum of one hundred dollars in payment of the same, and the defendant refused to deliver the same to the plaintiff. Like counts. Ramsden v. Gray, 7 C. B. 961; Porritt v. Baker, 10 Ex. 759. For not delivering goods agreed to be delivered as required; Jones v. Gibbons, 8 Ex. 920; to be delivered in certain quantities weekly; Josling v. Irvine, 6 H. & N. 512; for not delivering the residue after part delivery under the contract; Bentley v. Dawes, 9 Ex. 666; for not delivering timber under contract to deliver at a foreign port; Gabriel v. Dresser, 15 C. B. 622. 11b. Purchaser against Vendor on a Contract for the Sale of Goods expected by a Certain Ship, for not delivering. at by the ship the fact, and that he was ready and willing to take them away, with a request to defend ant to be allowed to take them, &c. That it was agreed by and between the plaintiff and the defendant, that the defendant should sell and deliver to the plaintiff, and that the plaintiff should buy from the defendant, tons of [Petersburg hemp], expected to arrive at the price of $- per ton from the quay, and (c) See another form, &c. Wood v. Tassell, 6 Q. B. 234; and see Chit. jr. Contr. Index," Sale." See another form, Salter v. Woollams, 2 M. & G. 651. Form with special damages for not being able to fulfil subcontract. Josling v. Irvine, 6 H. & N. 512; Smeed v. Foord, 28 L. J. Q. B. 178. When the vendee may sue for non-delivery, vide Obs. sup. 234. [As to time of delivery, Coddington v. Palaeologo, L. R. 2 Ex. 193.] (d) If plaintiff was to send for them, state (e) A tender of the price need not be stated; but a request of delivery must be alleged where the contract is that the goods should be delivered on request. Bach r Owen, 5 T. R. 409; Radford v. Smith, 3 M. & W. 254. Demand of delivery by servant Squier v. Hunt, 3 Price, 68. |