MEANING OF VALUE OF STRAW. 337 



SO for the benefit of the creditors of Boreham, and did not return any 

 manure on to the land. The seUing pi'ke of the straw was £1 per ton, 

 but its vcdue, if spent in manure, about Is. per ton. Tiie defendants 

 contended that according to the true construction of the agreement, 

 they were only liable in damages for the value of the straw if spent in 

 manure, and it was urged for the plaintiffs that the measure of damage 

 was the selling price of the straw. Alderson B. was of that opinion, 

 and there was a verdict for tlie plaintiff, with damages so calculated, 

 leave being reserved to the defendants to move to reduce the damages, 

 if the Court should be of opinion that the learned Judge had erro- 

 neously construed the agreement. Parke B. said : " The difficulty 

 arises from the use of the word ' value.' If the word had been ' price ' 

 instead of ' value,' then all the hay or straw sold off must have been 

 expended in the purchase of manure, and a much larger quantity of 

 manure would have been returned than the hay and straw could have 

 produced, if it had not been sold off. My brother Alderson retains his 

 opinion, and my brother Plait concurs with him. They think that the 

 term ' value ' means the value of the straw itself, and that that is to be 

 laid out in the purchase of manure, and spent upon the land. If, 

 indeed, this were in the nature of a penal clause, there would be reason- 

 able ground for concluding that the word ' value ' meant the market 

 value of the hay or straw, because that would be required to be brought 

 back in order to prevent the tenant from carrying off the hay or straw 

 at all. The Lord Chief Baron and myself think that this is not a penal 

 clause, and that it merely meant to keep the parties in statu quo. You 

 may sell the hay and straw off the land, but you shall do no injury to 

 the farm. You shall buy back a quantity of manure equal to that 

 which the hay or straw if left on the land would have produced. There 

 being a difference of opinion, no rule will be granted." PolJoch C.B. in 

 the course of the argument thus pointed out the special hardship of 

 construing *' value" as money value: "Some person might want the 

 straw and be willing to give for it a price beyond its farm value, or it 

 may be that there is a greater quantity than the tenant has occasion 

 for, so that it would be more profitable to sell it, and return its value 

 in manure ; but if the tenant is merely at liberty to take the price for 

 which it sells, and bring back that in manure, he would receive no 

 benefit." And it is submitted that the view of the Chief Baron and 

 Baron Parlce is the most in accordance with public feeling, and most 

 likely to be upheld if the question is re-opened. 



A nice point also arose m Masscij v. Goodall, where the declaration 

 alleged that the defendant had become tenant from year to year to the 

 plaintiff on certain conditions and stipulations, one of which was that 



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