DELIVERING GOODS OF INFERIOR QUALITY. 511 



of contract, or such as may reasonably be supposed to have been in 

 the contemplation of both the parties at the time they made the con- 

 tract, as the probable result of the breach of it. That is the principle 

 laid down by Pothier, the Code Napoleon, and Chancellor Kent, and 

 that is the abstract rule laid down in Hadleij v. Baxcndale. I do not 

 say how far it is supported by the facts of that case, but that rule is 

 laid down, and it is well laid down. Then are these losses naturally 

 arising out of the breach of the contract, or such as might have been 

 foreseen by the parties 1 The facts of this case clearly show that they 

 are. The damage dofie to the wheat and the cost of Idln-drying were the 

 natural consequence of the defendant's breach of contract, and the 

 proper measure of damages ; but the market price is variable, and it was 

 just as possible that it might have been higher as that it fell. I think, 

 therefore, on that head of damages the plaintiff is not entitled to 

 recover." 



In the case of Fletcher v. TayUur the law as to the measure of damages 

 was thus laid down by WiUes J. : " It certainly is very desirable that 

 these matters should be based upon certain and intelligible principles, 

 and that the measure of damages for the breach of a contract for 

 the delivery of a chattel should be governed by a similar rule to that 

 which prevails in the case of a breach of contract for the payment of 

 money. No matter what the amount of inconvenience sustained by the 

 plaintiff in the case of nonpayment of money, the measure of damages 

 is the interest of the money only ; and it might be a convenient rule if, 

 as suggested by my lord, the measure of damages in such a case as this 

 was held by analogy to be the average profit made by the use of such a 

 chattel." 



In an action for the breach of a contract by delivering goods of a 

 quality inferior to that contracted for, the proper measure of damages 

 is the difference between the value of goods of the quality contracted 

 for at the time of the delivery, and the value of the goods then actually 

 delivered, or their value as ascertained by a re-sale within a reasonable 

 time ; and the facts of the goods having been previously paid for 

 cannot be taken into consideration in estimating the damages {Loder 

 V. Kckule). 



The purchaser of goods sold upon credit cannot maintain trover for them 

 icithout paying the price ; for though he acquires the right of property by 

 the purchase, he can only acquire the right of possession by the payment, 

 and in order to maintain trover he must have both {Bloxam v. Morley). 

 So where the plaintiff had agreed to buy sheep of the defendant, at Lewes 

 fair, and to take them away at a certain hour, but no earnest money 

 was paid, and no sheep delivered, and the sheep, in consequence of his 



