204 



PLEADING, EVIDENCE AND DAMAGES. 



Cannot be 

 higher than 

 the amount 

 laid. 



In goods 

 bargained 

 and sold. 



In an action 

 for not ac- 

 cepting. 



In an action 

 for not de- 

 livering. 



•which, without fault on his part, he is unable to perform, 

 the law will excuse him for non-performance (p). 



The Jury cannot give higher Damages than the amount 

 laid in the Statement of Claim ; and if judgment be entered 

 for the excess such judgment would be bad (/). But 

 where the Jury find greater Damages than the amount 

 laid, the plaiatiff may enter a ronittitur of the surplus 

 before judgment (r/), or he may amend his claim and have 

 a new trial {h). 



The Damages in an action for the price of a Horse, as 

 Goods hargained and sold, will be the ic/iolc sum, and not 

 merely damages for not accepting and paying for it. 



In an action for not accepting a Horse, the measure of 

 damages is the difference between the contract price and 

 the market price, on the day when the vendor ought to 

 have received him (/). 



In an action for not delirering a Horse according to a 

 Contract, the Damages over and above what is laid spe- 

 cially, wdll be the difference between the price at which the 

 Horse was hougJtt and his value at the time he ought to 

 have been delivered [k) ; even though the vendor in the 

 interim have resold the Horse, provided that the vendee 

 did not assent to rescind the contract (/). And this rule 

 applies to each period of delivery, when more than one {m) ; 

 even though the action is commenced before the periods of 

 delivery have elapsed ; for the repudiation of the Contract 

 before the time for its fulfilment goes to the question of 

 breach, but does not afi^ect the damages {n). If the buyer, 

 at the request of the seller, forbear to enforce the Contract 

 at the time the goods ought to be delivered, but after- 

 wards do so, the measiu-e of damages is the difference 

 between the contract price and the market price when the 



[c) Clarh v. Glasqoxv Assurance 

 Co., 1 Macq. H. of L. Cases, 668 ; 

 Inc/ibaldv. IVestern Kcilghcrry Coffee 

 Co., 11 L. T., N. S. 345. 



(/) Chevchi V. Morris, 2 Bla. R. 

 1300. 



{g) Perceval v. Spencer, Yelv. 45 ; 

 Wray v. lister, 2 Stra. 1110, 1171. 



{h) Tidd, 9th ed. 896, and note 

 (A:); Chit. Cont. 10th ed. 816; and 

 see Dunn v. Crump, 2 B. & B. 300, 

 307 ; 'S'. C. 7 Moore, 137. 



(i) PhiUpotts V. Evans, 5 M. & W. 

 475 ; Boorman v. Nash, 9 B. & C. 

 145 ; Josllnj v. Irvine, II. & N. 



512. See also Bornes v. Hutchinson, 

 13 W. R. 386. 



(/.•) Gainsford v. Carol!, 2 B. & C. 

 624; 8. C. 4 D. & R. 161. 



{I) Lee V. Paterson, 8 Taunt. 540 ; 

 S. C. 2 Moore, 588. 



[m) Brown v. Muller, L . R., 7 Ex. 

 319 ; 41 L. J., Ex. 214 ; 27 L. T., 

 N. S. 272. 



[n) Brou-n v. 3fuller, L.R., 7 Ex. 

 319 ; 41 L. J , Ex. 214 ; 27 L. T., 

 N. S. 272 ; Poper v. Johnson, L. R., 

 8 C. P. 167 ; 42 L. J., C. P. 65 ; 

 28 L. T., N. S. 296 ; Roscoe, N. P. 

 14th cd. 494. 



