009-NLR-NLR-V-17-FERNANDO-et-al-v.-HDJIAR.pdf
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1918.
Present : Pereira *J. and Ennis J.
FERNANDO ei al. v. HADJIAR.
144—D. C. Kalutara, 4,868.
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Damages—Breach of agreement.
In an agreement between plaintiffs and defendant for diggingplumbago, tbe latter undertook to fix up adequate machinery atthe plumbago pit and pump out the water therein to enable thepalintiffs to dig out the plumbago therein. Defendant committeddefault, and thereupon plaintiffs sued him for the expenses incurredby them in getting together workmen and otherwise preparing to digout plumbago in the pit and holding themselves in readiness to do so.
Held, that such expenses were recoverable as damage sustainedby plaintiffs, and it was not necessary that the. prospective loss andgain should be estimated.
The promises in an agreement may be so interdependent, andthe terms of the agreement generally may be such, that the breachof one of the -terms of the agreement by one party may induce adischarge of the whole contract, 1
1 mm IS N. L. R. 337.
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rjp HE facts appear from the judgment.jjm.
Fernando
A. St. V. Jayewardene, for the defendant, appellant.—The real v.Hadjiartest for assessing damage in this oase is to find out the differencebetween what the plaintiffs would have got out of the pit had therebeen no breach, and what they did actually get out of the pit. It isnot reasonable to give plaintiffs all the expenses they might have
incurred. Counsel cited Encyclopedia of Laws, vol. IV., p. 97. '
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■H. J. G. Pereira (with him E. T. de Silva), for the plaintiffs, respond-ents.—All the expenses incurred by plaintiffs have become uselessowing to the default of the defendant. The compensation awardedwas a fair sum for the injury and inconvenience resulting from abreach of the contract. Courts have a considerable latitude inassessing damages of this kind. Addison on Contracts, p. 358(7th edition).
A. St. V. Jayewardene, in reply.
Cur. adv. vult.
July 15, 1913. Pereira J.—>
In this case the principal question argued was whether theplaintiffs had proved the damages awarded to them. Clearly, thedefendant committed a breach of the agreement entered into byhim with the plaintiffs when he failed to fix up adequate machineryat the plumbago pit mentioned in the agreement, and pump outthe water therein. The damage claimed by the plaintiffs is mainlythe expenses incurred by them in getting together workmen andotherwise preparing to dig out the plumbago in the pit, and holdingthemselves in readiness to do so. These expenses were, of course,lost to the plaintiffs by reason of the .defendant’s default. It wasargued by the appellant’s counsel that the damage sustained by theplaintiffs is the difference between their share of the plumbagothat might have been dug out had the defendant committed nodefault, and their share of the plumbago actually dug out by themin spite of the defendant’s default. That may well be so. Theplaintiffs were quite entitled to claim such damage; and had theydone so, naturally the assessment would have been the result of agreat deal of speculation. But the plaintiffs have not claimed thatdamage. The damage that they have claimed is the expenses of thearrangements that turned out nugatory owing to the defendant’sdefault. Clearly, they were entitled to claim this damage. Thedefendant’s counsel contended, on the authority of the Encyclopediaof Laws, vol. IV., p. 97 (1st edition), that in actions for breachof contract it was the duty of the jury to assess as accurately asthey could the difference between the financial position in whichthe plaintiff found himself with the contract broken, and that in
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1918 which he would have found himself if the contract had been dulypBB^2 J. performed. According to the Encyclopedia itself this rule hasundergone some variation, but applying it to the present case, the*S35t question is whether, if the contract, had not been broken, theplaintiffs would not have had to their credit the sum now claimedas damage, namely, the expenses incurred by them in preparingto dig for plumbago and in holding themselves in readiness todo so. The plaintiffs are content to claim no more than theexpenses incurred by them' The position that they take up isthis, ** Our expenses amount to Rs. 4,000, and there was in thepit plumbago of which our share would have been sufficient toat least cover our expenses. " The basis of decision in the case,therefore, is no other than the rule which the defendant's counselcontends should be the criterion. Whether, therefore, we applythe rule contended for by the defendant's counsel or the rule(more generally observed) laid down by Parks B. in Robinson v.Harman,l namely, that, “'so far as money can do it, the plaintiff isto be placed in the same situation as if the contract had beenperformed," it is clear that, in view of the fact that the plaintiffsin the present case limit their claim to the expenses incurred, theyare entitled to succeed, provided they have proved that they hadactually incurred the expenditure claimed, and that plumbago wasavailable as mentioned above. As to the latter condition, theevidence must naturally be of a more or less speculative character.The plaintiffs, of course, could do no more than place before the ■Court such evidence as is, in the nature of things, possible to beplaced before it in a case of this kind, and I think that there issufficient evidence in the case from which a fair and reasonableinference can be drawn that plumbago of which the plaintiffs'share would have been sufficient to cover the expenses might havebeen taken from the pit. As regards the expenditure, a post-ion ofit was due to the conduct of the. defendant in raising false hopes,and he is, therefore, in any event, solely liable for it; but as regardsthe amount of damage generally, this is not, in my opinion, a casein which this Court should too narrowly scrutinize the finding of theJudge of first instance. The District Judge declares the agreement tobe cancelled, meaning apparently that he holds that it is discharged.Clearly, in the present case, the promises of the two parties are sointerdependent, and the terms of the agreement generally are such,that the breach of the agreement by one party induces a dischargeof the whole contract.
For the reasons given above I would affirm the judgment appealedfrom with costs.
Ennis J.—I agree.
Affirmed.
1 Ex. Rep. 855.