IN THE MATTER OF AN ACTION IN THE MAYOR'S COURT OF LONDON, BETWEEN LEBEAU AND ANOTHER AND THE GENERAL STEAM NAVIGATION CO. Lord Mayor's Court, London-Prohibition-New Trial in the Mayor's Court after a Rule for a Nonsuit made absolute in a Superior Court. Notwithstanding s. 10 of the Mayor's Court London Procedure Act, 1857 (20 & 21 Vict. c. clvii.), this Court has no power to prohibit the Lord Mayor's Court from proceeding to re-try an action there, after a rule absolute for a nonsuit in this Court upon a point reserved.

ACTION in the Mayor's Court, London. At the trial a verdict was found for the plaintiffs for 187. 11s. 1d., with leave to the defendants to move to enter a nonsuit or a verdict for them. A rule nisi was accordingly obtained, against which cause was shewn in Michaelmas Term last, when the rule was discharged: vide ante, p. 88. Whilst that rule was pending, the defendants obtained a rule nisi in the Mayor's Court for a new trial on the ground of surprise and of fresh evidence having come to the knowledge of the defendants since the former trial; and that rule was made absolute after the decision of this Court.

Field, Q.C. (Waddy with him), moved for a rule calling upon the defendants to shew cause why a writ of prohibition should not issue out of this Court, directed to the Mayor's Court of London, to prohibit that Court from trying the cause again. He submitted that, upon the true construction of s. 10 (1) of the

(1) By 20 & 21 Vict. c. clvii. s. 10, "If upon the trial of any issue the judge shall grant leave to the plaintiff or defendant to move in any of the superior Courts to set aside a verdict or a nonsuit, and to enter a verdict for the plaintiff or defendant, or to enter a nonsuit, as the case may be, or for a new trial, the party to whom such leave may have been given may apply by motion to such superior Court within such period of time after the trial as motions of the like kind shall from time to time be permitted to be made in such superior Court, for a rule to shew cause

why such verdict or nonsuit should
not be set aside and a verdict entered
for the plaintiff or defendant, or a non-
suit entered, or why a new trial should
not be had, as the case may be, in such
action; which Court is hereby autho-
rized and impowered to grant or refuse
such rule (which rule, when granted,
shall operate as a stay of proceedings
until the determination thereof), and
afterwards to proceed to hear and deter-
mine the merits thereof, and to make
such orders thereupon and as to the
costs as the same Court shall think
proper; and, in case such Court shall

1873

Jan. 31.

1873

LEBEAU

v.

GENERAL

GATION CO.

Mayor's Court of London Procedure Act, 1857 (20 & 21 Vict. c. clvii), the cause having been once tried, and the points reserved having been disposed of by this Court upon the rule, it STEAM NAVI- was not competent to the Mayor's Court to try it over again, and that the proceeding was a violation of the maxim, Nemo debet bis vexari pro eadem causâ. He further submitted that s. 22, which provides that "the judge of the court may at any time, within the jurisdiction of the Court, hear and grant applications for rules to shew cause in arrest of judgment, or for judgment non obstante veredicto, or for a repleader, or for granting new trials, and for entering nonsuits and verdicts in causes pending in the court," extends only to the time during which the cause is pending in the inferior court, and not to cases where the whole merits have been disposed of upon a rule granted in the superior Court.

BOVILL, C.J. The Mayor's Court Procedure Act, 1857, gives a limited jurisdiction to this Court and the other superior Courts to deal with such matters as are reserved for their opinion by the inferior court; and s. 10 directs that certain results shall follow from their decision thereon. But there is nothing in the Act to enable us to interfere with the ordinary jurisdiction of the Mayor's Court either before or after the decision of this Court upon the motion. I think there should be no rule.

KEATING, GROVE, and HONYMAN, JJ., concurred.

Attorneys for plaintiffs: Learoyd & Learoyd.

order a new trial to be had in any such
action, the party obtaining such order
shall deliver the same or an office-copy
thereof to the registrar of the said
court, and thereupon all the proceed-
ings on the former verdict or nonsuit
shall cease, and the action shall proceed
to trial according to the practice of the
court in like manner as if no trial had
been had therein; or, in case the Court
before whom such rule shall be heard

Rule refused.

shall order the same to be discharged, the party obtaining any such order may, upon delivering the same or an office-copy thereof to the registrar, be at liberty to proceed in any such action as if no such rule nisi had been obtained; and, if a verdict be ordered to be entered for the plaintiff or defendant, or a nonsuit be ordered to be entered, as the case may be, judgment shall be entered accordingly."

[IN THE EXCHEQUER CHAMBER.]

HORNE AND ANOTHER V. MIDLAND RAILWAY COMPANY.
Measure of Damages for Breach of Contract-Common Carrier-Notice of Special

Circumstances.

The plaintiffs, being shoe manufacturers at Kettering, were under a contract to supply a quantity of military shoes to a firm in London for the use of the French army at 4s. per pair, an unusually high price. The shoes were to be delivered by the 3rd of February, 1871, and the plaintiffs accordingly sent them to the defendants' station at Kettering for carriage to London in time to be delivered there in the usual course in the evening of that day, when they would have been accepted and paid for by the consignees. Notice was given to the station master (which for the purposes of the case was assumed to be notice to the company) at the time that the plaintiffs were under a contract to deliver the shoes by the 3rd, and that unless they were so delivered they would be thrown on their hands; but he was not informed that there was anything exceptional in the character of the contract. The shoes were not delivered in London till the 4th of February, and were consequently not accepted by the consignees, and the plaintiffs were obliged to sell them at 2s. 9d. a pair, which, in consequence of the cessation of the French war, was, apart from the previously-mentioned contract, the best price that could have been obtained for them, even if they had been delivered on the evening of the 3rd of February, instead of the morning of the 4th.

In an action against the defendants for the delay in delivering the shoes, they paid into Court a sufficient sum to cover any ordinary loss occasioned thereby, but the plaintiffs further claimed the sum of 2677. 3s. 9d., the difference between the price at which they had contracted to sell the shoes and the price which they ultimately fetched :

Held (per Kelly, C.B., Blackburn, J., Mellor, J., Martin, B., and Cleasby, B. Lush, J., and Pigott, B. dissenting), that the plaintiffs were not entitled to recover the latter sum, the damage not being such as might reasonably be considered as arising naturally from the defendants' breach of contract, or such as might be reasonably supposed to have been in the contemplation of both parties at the time when they made the contract:

Per Kelly, C.B., Blackburn, J., and Mellor, J., and Cleasby, B., the notice given to the defendants was not such that they could reasonably be supposed to have had in their contemplation, at the time of entering into the contract for the carriage of the shoes, damages of such an exceptional nature as those claimed:

Per Martin, B., and, semble, per Blackburn, J., and Lush, J., a mere notice as such could not have the effect of rendering the defendants liable to more than ordinary damages; but it must in order to do so be given under such circumstances as to make it a term of the contract that the defendants will be liable for such damages if the contract be broken:

Per Lush, J., and Pigott, B., the notice given to the defendants was sufficient to put them upon inquiry as to the nature of the contract which the plaintiffs were under, and if they chose to accept the goods for carriage without further inquiry, they took the risk of what the contract might turn out to be, and were liable to the plaintiffs for the loss actually occasioned.

Hadley v. Baxendale (9 Ex. 341; 23 L. J. (Ex) 179), discussed.

ERROR from the judgment of the Court of Common Pleas upon a special case reported, Law Rep. 7 C. P. 583.

1873

Feb. 7.

1873

HORNE

v.

MIDLAND

Field, Q.C. (Lumley Smith with him), for the plaintiffs. Primâ facie the measure of damages is the amount of damage actually sustained. This rule is subject to the limitation that if the RAILWAY CO. damages are exceptional, and such as the parties cannot be reasonably supposed to have contemplated when they entered into the contract, they cannot be recovered. In the present case the defendants must be taken to have contemplated the possibility of these damages occurring. Notice was given to their servant that the plaintiffs had a contract, and also that it was a profitable one, or else the shoes would not be likely to be thrown on their hands. This was sufficient to put the person receiving the goods on inquiry as to what the nature of the contract was; and no such inquiry having been made, the defendants must be looked upon as having taken the risk of what it might turn out to be, and cannot now say that they did not contemplate the damages. In France v. Gaudet (1), in a case of trover, it was held that the plaintiff could recover the amount of the price at which he had resold the champagne, which was converted.

[MELLOR, J. That case was peculiar. Champagne of a similar quality was said not to be procurable in the market. There was, therefore, no other test of the value of the goods.]

The value of the goods is the value that they have to the individual, and that is what he is entitled to recover: Wilson v. The Lancashire and Yorkshire Ry. Co. (2) The case falls within the principles laid down in Riley v. Horne. (3) If the carrier does not choose to inquire as to the value of the goods, he takes the chance of what they may turn out to be. So here the goods had a certain value to the plaintiff by reason of the contract he had; the defendants are told that there is such a contract, and they do not choose to inquire what it is.

[BLACKBURN, J. It is clear the plaintiff gave notice that it was important that the goods should be delivered on the 3rd, but he gave no notice of the extraordinary nature of the contract. There is a substantial consideration involved; if the carrier has notice of an extraordinary risk he may perhaps charge a higher rate of carriage to cover it. The real meaning of the limitation as to damages is that the defendant shall not be bound to pay more (1) Law Rep. 6 Q. B. 199. (2) 9 C. B. (N.S.) 632; 30 L. J. (C.P.) 232. (3) 5 Bing. 217, at p. 222.

than he received a reasonable consideration for undertaking the risk of at the time of making the contract.]

1873

HORNE

V.

MIDLAND

Surely it cannot be necessary for a man to go with his contract in his hand, or to say, "I have contracted at such a price." RAILWAY Co. It is sufficient if notice is given that the case is of an exceptional nature. Substantially, this notice amounted to an intimation that an important contract, of a highly beneficial character, was at stake.

[MARTIN, B. Must not there be what amounts to a contract to be responsible for the exceptional damages?]

In the case of Hadley v. Baxendale (1) it is stated that, "if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendants, and thus known to both parties, the damages resulting from such breach of contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated." It is not put as depending on a contract.

[BLACKBURN, J. In Hadley v. Baxendale (1) there was really no affirmative decision that a mere notice as such would be sufficient, because it was held that there was not a sufficient notice in that case. I know of no affirmative decision based on the dictum so thrown out in Hadley v. Baxendale. (1)]

The notice here given may be treated as evidence of a contract. [He also cited Gee v. Lancashire and Yorkshire Ry. Co. (2)]

H. James, Q.C. (Sturge with him). The inference to be drawn from the case is, that the market value of the goods on the day when they were brought to the defendants' station was the same as when they were ultimately sold. There is nothing to shew any diminution in value during that period. Admitting that the contract of the company was a contract to carry and deliver by the 3rd of February and was broken, the question is, what are the damages. The damages are those for which the defendants have contracted to be responsible; and primâ facie the contract is to be responsible for any diminution in the ordinary market value of the goods between the day on which they ought to have been delivered and the day on which they actually were (1) 9 Ex. 341; 23 L. J. (Ex.) 179. (2) 6 H. & N. 211; 30 L. J. (Ex.) 11.