Damages-Sale of goods-Failure to deliver-Assessment of damages-Market
price-e-Special damages-Interest 0" purchase money-Loss of profits

Applicant failed to deliver a second hand Ford lorry to respondent in
breach of his agreement. to sell it for £E.80. Respondent paid £E.75 on

•. Court: Creed C.l. and Cumings 1.

the purchase price and incurred £'E.ll expense in having a new body con-
structed before receiving notice of the breach by applicant. After learning
of the breach the respondent purchased another lorry in the second hand
market. The trial judge awarded respondent £. E.25 as the difference be-
tween the purchase price and the market value of the lorry on the date of
the breach; the return of the pre-paid purchase money; interest on the pre-
paid sum; £E.ll as special damages for work and material on a new body;
and £'E.33 as loss of profits on the use of the lorry. This last item of
damage was challenged in the application for revision.

Held: (i) The measure of damages where there is an available market,
as provided by section 51 of the English Sale of Goods Act 1893, puts the
injured party in the same position he would have been in had he acted rea-
sonably and purchased another lorry when he had notice of the breach.
The injured party is therefore not entitled to loss of profits to be derived
from the goods not delivered when there is an available market in the same
goods. In this case the respondent did purchase another lorry and no loss
of profits resulted.

(ii) The £'E.ll spent by the respondent on a new body for the lorry
was a justified item of special damage because the applicant knew that this
expense would be incurred.

English Sale of Goods Act 1893, s. 51.

Revision                                   

Advocate: Mr. Francoudi ... for respondent.

This is an application for revision of the decree of Sandes J.
who awarded the respondent the sum of £E.144 as damages for
breach of a contract of sale of a lorry by the applicant who was
the seller refusing to deliver it. The breach was admitted, and in this
revision the applicant challenges the decree only so far as it awards
the respondent a sum of £E.33 as loss of profit which would have

been made from the lorry if delivered and has owing to the non-deliv-
ery been sustained by him.

The facts, according to the respondent, were as follows: On No-
vember 18, 1939, the respondent bought a second hand Ford lorry
1936 model from the applicant for £E.80 and paid £E.75 at once.
Delivery was to be within eight days. Both parties knew that the
lorry was then in the possession of the Shell Co. and had a tank body
on it which was no good for the purpose for which the respondent
needed it so that he would have to change the body when he got
the lorry. About two days later the respondent gave an order to a
third party for the construction of a body and supplied him with some
materials for it. On the eighth day the respondent demanded delivery
and the applicant gave notice that he could not deliver it as the

Shell Co. had refused to deliver it to him. This was a breach of the
contract and the respondent went straight to his lawyer. Then he says
"as I could not get delivery I was forced to buy another but not
such a good one." This was a 1937 model, but the respondent says
not so good as the Shell one which was in very good condition. The
respondent was not asked when he bought this other lorry or for
what price. Seeing there were advocates on both sides this omission
is very strange to me. The £E.75 has not been repaid.

So the result of this breach to the respondent is that he has
been out of the £E.75 and instead of the Shell lorry he has had
another lorry equally capable of doing the work. As his advocate
did not ask him the question I must assume that he had this lorry
available as soon as he would have had the Shell' lorry, which would
have required the fitting of a body after delivery.

On these facts it is staggering to me to find that the respondent
has been awarded no less than £E.144 in damages, more than double
the value the Shell Co. put on the lorry. To me this appears fantastic.
Some of the result is due to the feeble defence put up by the advocate
for the applicant. But this revision is confined to the sum of £E.33,
being loss of profit at PT.50 a day from the breach up to February 7,
1940. Why that date I do not know; the parties admittedly agreed
it, but why did the respondent confine himself in this way-why not
claim PT.50 a day for the whole life of the lorry? In addition to
this the respondent was awarded £E.25 being the difference between
the contract price and the market price of the lorry--even that seems
a very great deal-it was a wonderful bargain. This is of course the
measure of damage laid down by section 51 of the Sale of Goods
Act 1893 as prima facie the damages to be awarded in cases where
there is an available market for the goods, and there is such a market
here for second hand Fords. And Chalmers observes "this rule is
so convenient and obvious that the English courts apply it whenever
possible even where it produces hardship in individual cases."

In this case it is partially applicable for the respondent has pre-
paid some of the price. Therefore it is modified so that the buyer is
given the full market price of the goods on the day when they should
have been delivered together with interest on the money out of
which he has been kept. So he is put in the same position as he
would have been in if he had acted reasonably when he had notice
of the breach and bought another lorry at once, which, be it observed,