the notes that the plaintiff was not influenced in the bargain he made with Messrs. Myers & Son by the dilapidated state of the premises. Whatever might have been the equities of the Messrs. Myers, the plaintiff had the legal title to the premises at the time the cause of action accrued, and they were by reason of their dilapidated condition of less value to him than they would have been if the defendant had performed his contract, by the sum of 221. If the plaintiff had on the 25th of December, 1863, a vested *right of action for substantial damages, no subsequent act of *779] his in relation to the premises could entitle the defendant to say the damage should be nominal only. [BYLES, J.-Here, the contingency was reduced to a certainty before action brought.] Would it be any answer to a landlord's claim for non-repair, that the next tenant agreed to pay the same rent notwithstanding the dilapidations? There is no authority directly in point: but the principle seems clear enough. In Clow v. Brogden, 2 M. & G. 39 (E. C. L. R. vol. 40), 2 Scott N. R. 302, under circumstances very like these, the plaintiff was held entitled to substantial damages. Tindal, C. J., says: "I see no reason why the plaintiffs should not recover in this action the sum of 297, the amount agreed upon as the damages for the dilapidations caused by the breach of the covenant to repair entered into by the defendants. The answer set up, is, that the plaintiffs have sustained no actual damage, because (partly, at least, by the default of the defendants) the term in the premises has been determined. I think that it does not lie in the mouths of the defendants to make such an objection." In Smith v. Peat, 9 Exch. 161,† in an action by a lessee against an assignee for damage sustained by the former in consequence of the neglect of the latter, while he continued assignee, to repair the premises, pursuant to a covenant in the lease, it appeared that, in June, 1843, the plaintiff assigned the lease to the defendant; in October, 1851, the defendant assigned the lease to T.; and in June, 1852, T. assigned the lease to H., who in August, 1852, surrendered it to the ground-landlord: it was proved, that, in July, 1852, the premises were dilapidated, but there was no evidence of their state at any prior time and it was held that the plaintiff was entitled to recover from the defendant substantial, and not merely nominal damages. "Where," *780] says *Parke, B., "there is a covenant to repair, the lessor has a right to have the premises in good repair; and, according to Lord Holt,-Vivian v. Champion, 2 Lord Raym. 1125, 1 Salk. 141,— the measure of damage is, the sum of money required to be expended in putting the premises in repair. That doctrine, however, has not been adopted in modern cases. In Doe d. The Trustees of the Schools, &c., of Worcester v. Rowlands, 9 C. & P. 734 (E. C. L. R. vol. 38), my Brother Coleridge ruled that the true measure of damage is, the amount to which the reversion is injured by the premises being out of repair." In Nixon v. Denham, 1 Irish Law Rep. 100, in covenant for suffering premises to be out of repair during the continuance of the term, it was held to be no objection to a verdict giving full damages for the injury which the property suffered, that the defendant was lessee in a lease for lives containing a covenant for perpetual renewal on the part of the lessor. The real question is, what is the amount of injury which the defendant's breach of covenant has

inflicted upon the reversioner. What other measure can there be than the value of the dilapidations? [BYLES, J.-It may be that competitors were kept out of the market by the condition of the premises.] Just so. In Davies v. Underwood, 2 Hurlst. & N. 570,† the defendant, an under-lessee, who had covenanted with the plaintiff, his lessor, to keep, and at the expiration or other sooner determination. of the term to leave and deliver up the premises in repair, allowed them to become out of repair. While they remained in this condition, the plaintiff having committed a forfeiture by non-payment of rent, the superior landlord brought ejectment, and evicted the plaintiff and defendant: and it was held that the plaintiff was entitled to recover against the defendant substantial damages for the non-repair of the premises.

*Huddleston, Q. C., and Beasley, in support of the rule.-The

defendant's term being about to expire, he writes to the plain- [*781

tiff, offering to put the premises in repair, and take a renewed lease, at an increased rent. The plaintiff, having already made a bargain. with Messrs. Myers & Son upon more advantageous terms, rejects the offer and now, when the prostration of the premises has rendered the defendant's breach of contract unimportant to him, he sues for dilapi dations. At the time the action was brought, the plaintiff was in no respect a sufferer from the breach of the defendant's covenant to repair. The object of damages in all these cases, is, to enforce the performance of the covenant. This is the view taken by Watson, B., in Davies v. Underwood, 2 Hurlst. & N. 570.+ "The great object," he says, "of a covenant of this sort, is, not to put money into the pockets of a lessor, but to enforce the performance of the acts stipulated for." Where, as here, the lessor contemplates the destruction of the premises, he can have sustained no substantial injury from their non-repair. In Marriott v. Cotton, 2 Carr. & K. 553 (E. C. L. R. vol. 61), it was held, that, where a tenant for years agrees to keep the premises in repair during the tenancy, and before the expiration of the term, an action is brought against him for breach of this agree ment, the plaintiff is entitled to recover nominal damages only.(a) The verdict therefore should be entered for the defendant, the damages really sustained having been sufficiently compensated by the 1s. paid into Court.

ERLE, C. J.—I am of opinion that this rule should be discharged. The action is brought by the plaintiff as lessor, against the [*782 defendant, who had been tenant of premises under a lease, for the breach of a covenant to keep and to leave the demised premises in repair. It appeared that at the expiration of the lease the premises were out of repair, and that the sum which would be required to put them in repair in conformity with the covenant would be about 1107. The plaintiff was interested in one-fifth of the reversion. Ordinarily speaking, where there has been a breach of contract, the covenantee is entitled to recover such an amount of damages as would place him as nearly as possible in the same position as he would have been in if the covenant had been performed. That in this case is agreed to be 227. Why, then, should not the defendant pay that sum? He

(a) The propriety of this decision is questioned, and, it seems, justly, in Macnamara v. Vincent, 2 Irish Ch. R. 481, and Beli v. Hayden, 9 Irish Com. L. R. 301.

says he offered to take the premises of the plaintiff for a renewed term, but that the plaintiff declined to accept his offer. This the plaintiff had a perfect right to do. Then he says there was a very advantageous proposal on the part of Messrs. Myers under which the premises were to be pulled down, and therefore no damage could have resulted to the plaintiff from their dilapidated state. But, in the first place, it is to be observed that that merely lay in proposal: it was a mere oral agreement. And, if it had been a complete and absolute binding contract, that was not a matter that I should have directed the jury to take into their consideration in estimating the damages. I should not have excluded it; but it certainly is not a matter which it was obligatory on them to look at when measuring the loss the plaintiff had sustained by reason of the defendant's breach of covenant. That being so, the only question is whether the learned Judge was bound in point of law to direct the jury to find for the plaintiff with nominal damages only. My answer is, that he clearly was not. And it is agreed, that, if the plaintiff is entitled to more than nominal damages, he is entitled to the sum above mentioned. If *783] before the cause of action accrued, and during the term, the plaintiff had entered into a binding agreement to assign the reversion to Messrs. Myers, that would have more material: and I do not say what I should have laid down for the guidance of the jury in that But that is not the case now before us.

case.

BYLES, J.-I am of the same opinion. As I read the statement of facts, I conclude that the agreement made before the expiration of the-defendant's term was not reduced into writing until after its expiration. That being so, and nothing having been done under the parol agreement at the time the cause of action accrued, and no obligation. legal or equitable attaching to either of the parties to it, it seems to me that the plaintiff was entitled to sue the defendant for the full amount of the damage arising from the breach of his covenant to repair. It is true the plaintiff has since parted with the reversion: but he still may have sustained damage from the non-repair of the premises. It may be that they sold for a less sum in consequence of their dilapidated condition, or the plaintiff had a narrower market. If the plaintiff once had a vested right to recover substantial damages, I do not see how we can deprive him of that right. In all cases of this sort, the correct direction to the jury, as it seems to me, is, not that they ought to give only nominal damages, but that they are not bound to give more than nominal damages. Being unable to say that the jury might not give substantial damages, I think it is impossible for us to interfere.

KEATING, J.-I am of the same opinion. The defendant's term expired at Christmas, 1863. The agreement with Messrs. Myers was not put into a shape in which it was capable of being enforced until *784] the *month of March following. If an action had been brought against the defendant for a breach of covenant between those two periods, could it have been said that the plaintiff was not entitled to recover substantial damages? If not, what happened subsequently clearly could not deprive the plaintiff of that right. If even a binding agreement had been entered into with Messrs. Myers before the expiration of the term, I share in the doubt expressed by my Lord

whether that would have made any difference. It is not necessary to decide that upon the present occasion.

MONTAGUE SMITH, J.-I am of the same opinion. The premises being out of repair at the termination of the lease, the plaintiff had an undoubted right to maintain an action. The ordinary damages would be the amount which would be necessary to put them in a proper state of repair. The right to damages having accrued on the determination of the term, the lessor's intention to pull down the premises would not in the least affect his right to sue for full damages. But it is said that the agreement entered into with Messrs. Myers before the defendant's term came to an end shows that the plaintiff sustained no more than nominal damages by the defendant's breach of covenant. But it seems that there was no binding agreement at all with Messrs. Myers until three months after the expiration of the lease. The foundation, therefore, of that objection fails. If there had been a binding agreement, I doubt whether that would at all have interfered with the plaintiff's right. I cannot see how that should operate in law or good sense as an estoppel. It was a question for the jury and I cannot see anything which ought to prevent the plaintiff from recovering such damages as would ordinarily be recoverable. Rule discharged.

*SCRIVENER and Another v. PASK. April 20. [*785

The mere employment of an architect to prepare plans and a specification for a house, and to procure a builder to erect it, does not render the employer responsible for the accuracy of the bill of quantities furnished by such architect to the builder.

THE first count of the declaration was for money payable by the defendant to the plaintiffs for goods sold and delivered, work and labour and materials, and money found due upon accounts stated.

The second count stated, that, before and at the time of the making of the promise by the defendant thereinafter mentioned, the defendant was about to cause to be erected a villa, and had caused to be made certain plans and specifications of the work to be done and of the materials to be provided for the erection of the said villa, and had invited the plaintiffs to make a tender for a contract with the defendant for the plaintiffs' erecting the same for reward to them in that behalf, and the defendant had caused to be taken out certain quantities as and for the quantities of the work to be done and of the materials to be provided for the erection of the said villa according to the said plans and specifications, and had furnished a bill of the said quantities to the plaintiffs, in order that they might make a tender to the defendant to contract with him for the doing of the work and providing the materials for the erection of the said villa, and for erecting the same at a price to be named by the plaintiffs by such tender; and that, in consideration that the plaintiff's would make such tender, the defendant guaranteed and promised the plaintiffs, that, if such tender should be accepted by the defendant, and a contract should be entered into by and between the plaintiffs and the defendant for the doing of the said work and providing the said materials, and for the erection

of the said villa by the plaintiffs, the said quantities represented and would represent the true *and correct quantities of the *786] work to be done and of the materials to be provided for the erection of the said villa according to such plans and specifications: Averment, that the plaintiffs, confiding in the defendant's said guarantee and promise, made an estimate of, and delivered to the defendant a tender for, the plaintiffs' doing the said work and providing the said materials, and for the erection by them of the said villa, at and for a certain price named therein, and the same was founded on the said bill of the said quantities so delivered to them by the defendant; and their said tender was accepted by the said defendant, and a contract was entered into by and between the plaintiffs and the defendant, for the erection of the said villa by the plaintiffs for the defendant according to the said plans and specifications, for a certain price; and all conditions were performed, and all things happened, and all times elapsed necessary to entitle the plaintiffs to have a performance by the defendant of his said guarantee and promise, and to maintain this action for the breach thereof by the defendant as thereinafter alleged: Yet the said bill of the said quantities delivered by the defendant to the plaintiffs did not represent the true and correct quantities of the work to be done, and of the materials to be provided for the erection of the said villa according to the said plans and specifications; whereby the plaintiffs' said estimate and tender, and the said contract, were made and entered into by the plaintiffs for a lower price for the plaintiffs' erecting the said villa than they would otherwise have been, and the plaintiffs had sustained much loss and damage, and had incurred further great expense in providing under the said contract work and materials required for the erection of the said villa according to the said plans and specifications, which were not set out or *787] stated in the said bill of the said quantities *of work and materials so delivered by the defendant to the plaintiffs, and the plaintiff's had been and were by means of the premises otherwise injured Claim, 5007.

To the first count, except as to 2107. 7s., the defendant pleaded,— first, never indebted,-secondly, payment before action,-and thirdly, as to the 2107. 7s., payment into Court. He also pleaded to the special count, fourthly, that he did not guaranty and promise as alleged,— fifthly, that he had not caused to be taken out certain quantities as and for the quantities of the work to be done and of the materials to be provided for the erection of the said villa, and had not furnished a bill of the said quantities to the plaintiffs,-sixthly, a denial of the breach and every part thereof. Issue.

The cause was tried before Byles, J., at the sittings in Middlesex after last Hilary Term. The facts were as follows:-The defendant, being desirous of erecting a villa residence in the neighbourhood of Twickenham, employed one Paice, an architect, to prepare the necessary plans and specification, and to procure a builder to do the work. The plans and specification were accordingly prepared by Paice, who put himself in communication with the plaintiffs, who are considerable builders carrying on business in Fitzroy Road, Regent's Park; and in the result the following agreement was entered into between the parties on the 15th of April, 1864:—