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plaintiff, and for money received by the defendant to the use of the plaintiff.

The defendant traversed the retainer and the alleged breaches of contract, and also pleaded never indebted; whereupon issue was joined. The cause was tried before Channell, B., at the last Assizes at Worcester. The facts were as follows:-In the spring of 1857, the plaintiff, an engineer, was employed by one Sheaf to repair a steam threshingengine; the work to be finished before harvest, or by the end of July or the beginning of August. It being found necessary to get a new firebox made, the plaintiff in June went to the defendants at Birmingham *324] and verbally contracted with them to make one for *him for 127. Upon inquiring how long it would take to make it, the defendants' foreman answered, "About a fortnight." The fire-box was not sent to the plaintiff until the 3d of September, when it was found to be useless. The plaintiff was then obliged to employ another person to make another fire-box, for which he had to pay 201. The threshingengine, in consequence of these delays, not being ready until November, Sheaf brought an action against the plaintiff to recover damages in respect of his breach of contract, claiming 501.; but he ultimately settled the matter by accepting 201. and costs, making together 251. 178.

It did not appear that the plaintiff, when he gave the defendants the order for the fire-box, communicated to them the nature of his contract with Sheaf; or that they were made aware of it until after there had been a complete breach of that contract; although there was some evidence of a conversation between Sheaf and the defendants upon the subject in the month of June.

Under the direction of the learned Baron, the jury returned a verdict for the plaintiff for the 12l. which he had paid the defendants for the firebox, 81. for the extra expenses he had incurred in procuring another, and 201. in respect of the compensation he had paid to Sheaf for the non-performance of his contract with him.

Pigott, Serjt., on a former day in this term, pursuant to leave reserved, obtained a rule Nisi to reduce the damages by the sum of 201. on the grounds that no precise time was contemplated by the contract between the plaintiff and the defendants, and that the payment to Sheaf was not a damage fairly resulting from the defendants' breach of their

contract.

*325] Huddleston, Q. C., and R. Kettle, on a subsequent day, *showed cause. The plaintiff is entitled to recover, not only the sum he had paid to the defendants for the useless fire-box, and the 81. which he was obliged to pay to procure another, but also the damages he was compelled to pay to Sheaf for his breach of contract, which but for the defendants' failure to perform their contract with him he would not have incurred. The rule as laid down by the Court of Exchequer in Hadley v. Baxendale, 9 Exch. 341,† is, that, "where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." That rule was acted upon in

Bramley, app., Chesterton, resp., 2 C. B. N. S. 592 (E. C. L. R. vol. 89), where it was held, that, where a tenant holds over after the expiration of a notice to quit, the landlord is entitled to recover against him the reasonable damages and costs sustained by him in an action at the suit of a party to whom he had contracted to let the premises, but to whom the tenants' wrongful act had prevented him from delivering possession. In giving judgment, Cockburn, C. J., says: "This use of the land by the landlord, viz., the letting it to a new tenant, is the common and ordinary course of dealing on the part of an owner of land. The defendant, therefore, must have understood, that, when the plaintiff gave him notice to quit, he would enter into a contract with a new tenant to let the premises to him from the expiration of such notice. And in this case there is the further and not unimportant fact that the tenant was apprised of the fact that the *landlord had relet the premises, and consequently was aware of the inconvenience and loss he was [*326 exposing him to by his improper conduct. I therefore think it not at all unreasonable, but, on the contrary, very salutary, to hold him liable to compensate his landlord to the extent of the natural and necessary consequences of his wrongful act."(a) The natural consequence resulting from the non-performance of the defendants' contract, was, the noncompletion by the plaintiff of his contract with Sheaf. [CROWDER, J.— The damages claimed by Sheaf could hardly be said to be the natural consequence of the defendants' breach of their contract with the plaintiff.] At all events, it comes within the second branch of the rule laid down in Hadley v. Baxendale: it might reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it; for, the defendants knew that the article was wanted for the ensuing harvest, and that the inevitable consequence of the non-performance of their contract would be that the plaintiff would be unable to perform his contract with Sheaf. [BYLES, J.-There was no evidence that the defendants were aware of the plaintiff's contract with Sheaf until after breach.]

Pigott, Serjt., in support of the rule. The plaintiff is, no doubt, entitled to recover back the 127. he paid for the fire-box, and also the 81. for the difficulty in getting another one: but he clearly is not entitled to recover anything in respect of the contract which he had made

with Sheaf. At the time the order was first given, in June, the [*327 plaintiff did not communicate to the defendants his engagement with Sheaf to have the threshing-engine ready in time for harvest; nor did he do so until after there had been a complete breach of the contract between him and Sheaf. Damages from the plaintiff's breach of his contract with Sheaf clearly could not have been in the contemplation of the parties as flowing from the breach of the defendants' contract with the plaintiff, so as to bring the case within the rule in Hadley v. Baxendale. As soon as the defendants had broken their contract, it was the plaintiff's duty to put himself in a position to perform his contract with Sheaf, by procuring a fire-box elsewhere,-Peterson v. Ayre, 13 C. B. 365 (E. C. L. R. vol. 76), per Maule, J.,—and he had ample time to

(a) Willes, J., observed that he was erroneously reported in this case to have said, "I would wish, however, to guard myself from admitting, that, apart from contract, the tenant is liable for holding over;" and that it ought to have been, "that, in an action of contruct, the tenant would be liable for holding over."

do this before the commencement of harvest; for, it appeared that it could have been made in a fortnight. It would be monstrous to hold the defendants responsible for the breach of a contract with a third party, the terms of which they were wholly unacquainted with.

Cur. adv. vult.

CROWDER, J., now delivered the judgment of the court:This case was argued on Friday last before my Brothers Willes and Byles and myself. The rule sought to reduce the damages: and we are of opinion that it must be made absolute. The action was brought to recover damages for the breach of a contract entered into between the plaintiff and the defendant, under which the defendant was to furnish a fire-box for the plaintiff by a given time. The article was not furnished within the time, and, when it was sent to the *plaintiff, it was found *328] to be utterly useless. The plaintiff, who had paid the sum agreed on, viz. 12., sought to recover back that sum, together with the damages which he had sustained by reason of the defendants' breach of contract. The jury gave a verdict for 127., the sum paid, and a further sum of 87. for the extra expense which the plaintiff was put to in procuring another fire-box, and about which there is no dispute. They also gave a further sum of 201. as special damage arising from the defendants' breach of contract. The question is whether the jury were warranted in giving this latter sum. We are of opinion that they were not. The special damage was sought to be recovered by reason of the plaintiff's having entered into a contract with one Sheaf to repair for him a steam threshing-machine. The contract between the plaintiff and the defendants as to the fire-box was quite separate and distinct from that. The defendants had nothing whatever to do with the contract between Sheaf and the plaintiff. But it was said, that, inasmuch as Sheaf had brought an action against the plaintiff for his breach of contract, a breach of contract occasioned by the insufficiency of the article furnished by the defendant, and had recovered damages (or been paid a sum of 207.) for the breach of that contract, that was a damage which the plaintiff was entitled to recover against the defendants for the breach of their contract. We think, however, that this case is entirely governed by that of Hadley v. Baxendale, 9 Exch. 341,† to which reference was made, and does not come within that rule by which alone this sum could be recovered as special damage. It is laid down by the Court of Exchequer in Hadley v. Baxendale, that, "where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive *329] in respect of such breach of contract, should be such as *may fairly and reasonably be considered either arising naturally, that is, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." Now, it is quite clear that this special damage was not the ordinary consequence of the breaking of the defendants' contract. The only question was, whether it came within the second part of the rule as above laid down,-that the breach of contract was such as that the damage arising from it might be supposed to be in the contemplation of both parties at the time they made the contract. We have looked carefully at the notes of the learned judge who tried the cause, and we cannot find that there is any such evidence as would lead

to the conclusion that it was in the contemplation of the parties that the breach of the contract entered into between the plaintiff and Sheaf, and the damages recovered by him (Sheaf) in consequence, would be the probable result of the breach by the defendants of their contract to furnish a fire-box to the plaintiff. We therefore think that the rule to reduce the damages should be made absolute: and we cannot help thinking, the action being brought to recover back the sum of 127., the amount agreed to be paid for the fire-box,-that it would be a monstrous conclusion to arrive at, that the breach of the contract in not furnishing the article contracted for at that price, should give rise to the additional damages of 201. here sought to be recovered. Rule absolute.

*LEWIS v. BARKES.

LEWIS v. BLAGDON, and six other Causes. April 19.

[*330*

Actions having been brought against eight several defendants upon mutual insurance policies, the court, at the instance of the defendants, granted a rule for consolidating them,-upon the terms that the several defendants should admit the amounts for which they were respectively liable, in case their liability should be established, and should consent, if necessary, to an order referring it to the master to settle the same.

EIGHT several actions had been brought by the same plaintiff against the above-named several defendants as members of a mutual assurance association called The London Marine Assurance Association, upon one and the same policy of assurance. The plaintiff having declared in each action as for a constructive total loss, a summons was taken out on behalf of the defendants before Pollock, C. B., calling upon the plaintiff to show cause why the said actions should not be consolidated. The plaintiff declined to consent to a consolidation, except upon the following terms, "that the said defendants should state the proportions in which they are respectively liable; that the said defendants should admit themselves to be members of the said assurance association, and should also admit that one Thomas Denham was their agent duly authorized to execute the policy of assurance expressed to be granted by him to the plaintiff." The learned Chief Baron thereupon referred the matter to the court.

Scotland, accordingly, on a former day in this term, moved for a rule to consolidate the actions. He submitted that there was no ground for deviating in this case from the ordinary course of practice, by imposing terms upon the defendants such as those proposed at chambers.

O'Malley and H. Lloyd showed cause. This is not an ordinary consolidation rule. The terms proposed are not unreasonable. The plaintiff here would be bound to prove what in the ordinary consolidation rule is *admitted, the proportions being ascertained by the policy.

Here, it is conceded, there is a different case as to each defend- [*331

ant; but there is one question common to the whole of the cases, viz. the cause of the loss. The terms here proposed were enforced by Cresswell, J., at chambers, in another case. In Everth v. Blackburn, 6 M. & S. 152, terms were imposed upon the defendant. [BYLES, J.-Let those defendants consolidate who are willing to admit their proportions.]

VOL. IV.-14

Scotland, in support of his rule.-There is no pretence for binding the defendants in the way suggested. In Hollingsworth v. Brodrick, 4 Ad. & E. 646, 6 N. & M. 240, which generally governs these cases, two actions having been brought by the same plaintiff against different defendants, on the same policy of insurance, the court consolidated them after a declaration had been delivered in one, and an appearance entered in the other, at the instance of the defendant in the latter action, though the plaintiff objected. In Everth v. Blackburn, money was paid into court, and therefore the liability to some extent was admitted. If this rule is granted, the only effect will be, that, if the plaintiff obtains a verdict against the defendant against whom he elects to proceed, the other defendants are all bound by it; whereas, if he fails in that one action, he may still try the others. [CROWDER, J.-You probably will not object to the admission of the amount in each case, provided your admission does not extend to an admission of liability?] That seems to be reasonable. Cur. adv. vult. WILLES, J., now proceeded to deliver the judgment of the court:-(a) *332] *The question in this case was, whether several actions upon mutual insurance policies ought to be consolidated, according to the usual practice in actions upon ordinary policies.

We think that no sufficient objection to such consolidation has been put forward. The defendants will be bound by the decision of the first case, if in favour of the plaintiff. The plaintiff, if he fail in his first case, will be at liberty then to try the others. As to the delay which may be occasioned to the plaintiff, that will be fully compensated by his obtaining judgment in all the actions, if he succeed in the one selected. The defendants, by entering into the rule, agree to judgment against all, in case the plaintiff succeeds against any one defendant. The plaintiff may select a defendant within a week.

As to the amount for which judgment is to be signed in case the plaintiff succeeds, the defendants must within a week state how much they are respectively liable for, in case their liability be established, and must consent, in case it becomes necessary, and the plaintiff applies for an order to that effect, to a reference to the master as to amount, upon such terms as to costs as the judge shall think fit. The rule must, therefore, be absolute, in the ordinary form, with the above additions. Any difficulty in settling it, may be brought before a judge at chambers. Rule absolute.(6)

The rule was drawn up as follows::-"It is ordered that the said defendants, within a week, deliver to the said plaintiff or to his attorney a statement in writing of the amounts for which judgments are to be *333] signed in case the plaintiff succeeds, and for which they are *respectively liable in the event of their liability being established as hereinafter mentioned; the said plaintiff, within a week after the delivery of such statement, electing against which one of the said defendants he will proceed to trial: and that all further proceedings in

(a) The case was argued before Crowder, J., Willes, J., and Byles, J.

(b) In M'Gregor v. Horsfall, 3 M. & W. 320,† 6 Dowl. P. C. 338, where two actions were brought by the same plaintiffs against different defendants, on different policies of insurance on the same ship, the court refused, at the instance of the defendants, to compel the plaintiffs to consolidate and to be bound in one of the actions, without their consent. And see Syers v. Pickersgill, 27 Law J., Exch. 5.

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