192 



PLEADING, EVIDENCE AND DAMAGES. 



bargained 

 and sold. 



In an action 

 for not ac- 

 cepting. 



In an action 

 tor not de- 

 livering. 



Nominal 

 damages. 



bargained and sold, will be the whole 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 estimated loss directly and naturally result- 

 ing, in the ordinary course of events, from the buyer's 

 breach of contract " (li). 



Where there is an available market for the horse in 

 question, the measure of damages \s prima facie to be ascer- 

 tained by the difference between the contract price and the 

 market or current price at the time when he ought to have 

 been accepted, or, if no time was fixed for acceptance, then 

 at the time of the refusal to accept (*'). 



In an action for not delivering a horse according to a 

 contract, the measure of damages is the estimated loss 

 directly and naturally resulting in the ordinary course of 

 events, from the seller's breach of contract (A-). Where there 

 is an available market for the horse in question, the 

 measure of damages is prima facie to be ascertained by the 

 difference between the contract price of the horse at the 

 time he ought to have been delivered, or if no time was 

 fixed, then at the time of the refusal to deliver (/). And 

 this rule applies even though the seller in the ■ interim have 

 resold the horse, provided that the buyer did not assent to 

 rescind the contract {in). 



If the buyer, at the request of the seller, forbear to 

 enforce the contract at the time the goods ought to be 

 delivered, but afterwards do so, the measure of damages is 

 the difference between the contract price and the market 

 price when the buyer so enforces the contract, e.g., by 

 buying the goods in the market («). Where there has 

 been a written contract, the vendee cannot enhance the 

 damages by oral proof that the contract price was higher 

 than the market price by reason of the shortness of the 

 time fixed by the contract for delivery (o). 



Where there is no difference between the contract price 



(A) Sale of Goods Act, 1893, s. 50, 

 bu1j-s. (2). 



(i) Ibid., sub-s. (3). See also 

 Phillpotts V. Emns, 5 M. & W. 475 ; 

 Booriiinii V. Kash, 9 B. & C. 145 ; 

 Josliinj V. Irvine, 6 H. & N. 512. 



(i) Sale of Goods Act, 1893, s. 52, 

 sub-s. (2). 



(?) Ibid., sub-s. (3). See also 

 Boorman v. Naih, 9 B. & C. 145 

 Leigh, v. Putersmi, 8 Taunt. 640 

 Barrow v. Arnaud, 8 Q. B. 609 



per Tiudal, C.J. ; Valjw v. Oakelei/, 

 16 Q. B. 941. 



(m) Zeic/h v. Faterson, 8 Taunt. 

 540 ; S. C, 2 Moore, 588. 



(«) Ogle T. Earl Vane, L. E., 2 

 Q. B. 275 ; Ex. Ch., L. E., 3 Q. B. 

 272. See Tyers v. Rosedale, ^-o. Iron 

 Co.. L. E., 8 Ex. 305 ; Ex. Ch., 

 L. E., 10 Ex. 195 ; 42 L. J., Ex. 

 185; 29 L. T., N. S. 751. 



(o) Brady v. Oastler, 3 H. & C. 

 112; 33 L. J., Ex. 300. 



