DAMAGES. 203 



any cii'cumstances of hardship or extreme folly, though not 

 sufficient to invalidate the contract, the Jury may consider 

 them, and proportion and mitigate the Damages accord- 

 ingly. Thus, where an action was brought on a promise 

 of 1,000/. if the plaintiff should find the defendant's Owl; 

 the Court held, though the promise was proved, that the 

 Jury might mitigate the Damages {a) . 



And where an action was brought in special Assumj^sit, A Foolish 

 on an agreement to pay for a Horse a barley-corn a nail, bargain, 

 doubling it for every nail in the Horse's shoes; there were 

 thirty-two nails, and this being doubled, every nail in a 

 geometrical progression, came to five hundred quarters of 

 barley ; and on the cause being tried before Mr. Justice 

 Hyde at Hereford, the Jury, under his direction, gave the 

 real value of the Horse, 8/. as Damages ; and this Contract 

 seems to have been held valid ; for it appears by the report 

 that there was afterwards a motion to the Cornet in arrest 

 of Judgment, for a small fault in the Declaration, which 

 was overruled, and the plaintiff had judgment {h). 



And where in consicleration of 2s. 6d. paid down, and An impossible 

 41. 17s. 6d. to be paid at the end of the year, the de- contract, 

 fendant agreed to deliver two grains of rye on the then 

 next Monday, and double in geometrical progression 

 every succeeding Monday for a year, which it was stated 

 would have amounted to a larger quantity of rye than 

 existed in the whole world, the Court on demurrer seemed 

 to consider the Contract good in law; and Mr. Justice 

 Powell said, " That although the Contract was a foolish 

 one, yet it would hold good in law, and that the defendant 

 ought to pay something for his folly ;" upon which the 

 defendant agreed to return the plaintiff his half-crown 

 and pay the costs, and so the case was compromised {c). 

 And an action will lie for the performance of a Contract 

 imdertaken for a valuable consideration, though its per- 

 formance turns out to be impossible (unless it has been 

 rendered impossible by the act of the other party), for it 

 is the result of the " heedlessness of the contracting party, 

 if he runs the risk of undertaking to perform an impos- 

 sibility, when he might have provided against it by his 

 Contract " {d). But where the law casts a duty on a man, 



(«-) Bac. Abr. Damages (D), 602. (c) TliornhoroicY. JF/ntacrf,2'Ld. 



{b) James y. Morgan, 1 Lev. Ill; Raym. 1164. 

 S. C. 1 Keb. 569 ; and Chit. Contr. [d) Per Williams, J., Hale v. 



10th ed. 20. Rawmii, 27 L. J., C. P. 101. 



