DAMAGES. 



191 



A foolish 

 bargain. 



Nothing in the Sale of Goods Act, 1893, is to affect Sale of Goods 

 the right of the buyer or the seller to recover interest or ^'=*' ^893, 

 special damages in any case where by law interest or 

 special damages may be recoverable, or to recover 

 money paid where the consideration for the payment of it 

 has failed. 



But in all actions which sound in damages, the jury seem In actions 

 to have a discretionary power of giving what damages they '''''''''^ ^o"""* 

 think proper; for though in contracts tbe very sum specified 

 and agreed upon is usually given, yet, if there be any 

 circumstances of hardship or extreme folly, though not 

 sufficient to invalidate the contract, the jury may consider 

 them, and proportion and mitigate the damages accordingly. 

 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 {d). 



Where an action was brought in special assumpsit on an 

 agreement to pay for a horse a barley-corn a nail, doubling 

 it for every nail in the horse's shoes; and there were 

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

 geometrical progression, came to five hundred quarters of 

 barley; 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 Court in arrest of 

 judgment, for a small fault in the declaration, which was 

 overruled, and the plaintiff had judgment (e). 



An action will lie for the performance of a contract under- An impossible 

 taken for a valuable consideration, though its performance contract, 

 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 impossibility, when he 

 might have provided against it by his contract" (/"). But 

 where the law casts a duty on a man which, without fault 

 on his part, he is unable to perform, the law will excuse him 

 for non- performance {g). 



The damages ia an action for the price of a horse, as goods In goods 



((Pj Bac. Abr. Damages (D), 602. 



[e] Ja7nes v. Morgan, 1 Ley. Ill ; 

 8. C.,\ Keb. 669 ; and Chit. Contr. 

 12th ed. 22. 



(/) Per Williams, J., Sale t. 



jRawson, 27 L. J., C. P. 191. 



[g] Clark V. Glasgow Assurance 

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

 Inchhald v. Western Neilgherry Coffee 

 Co., 11 L. T., JSr. S. 34.5. 



