CROMPTON, J.-The commitment in this 20. It is contended on behalf of the Crown, that clearly in the nature of a civil process of execution the justices acted legally in ordering the said Robert Mason to be received and detained in the said Debtors

16

I

ontempt is to be dealt with as before the act.
hink, therefore, the mandamus to the governor of
Whitecross-street should go.
BLACKBURN, J.-I am of the same opinion. The
aly question is, whether the process in this case was
vil process; if so, the governor of Newgate was not
ound to receive the prisoner, but he should have
een committed to the prison at Whitecross-street.
he object of process is either to enforce the perform-
ace of a civil right in respect of the payment of
oney, or is intended by way of punishment for of-
ences; it is, therefore, civil or criminal according to
he subject matter of the wrong intended to be reme-
ied. The commitment of the prisoner seems to me,
nder the circumstances, to have been properly made

In the 1st April the defendants contracted to sell to the plaintiff a quantity of cotton at a certain price, to be delivered during the following August. In contracts for "forward delivery," it is the universal custom of the trade for the purchaser to resell the goods before the time for delivery. Between the date of the contract and the time of delivery, the plaintiff contracted with third persons for the sale to them of cotton, to be delivered in August, relying upon the performance by the defendants of their contract to enable him to fulfil his sub-contract. At the date of the resale, the price of cotton had risen considerably, but had fallen again before the last day of August, when, however, it was still in excess of the price for which the plaintiff had purchased in April. The defendants not having delivered the cotton-Held, that the plaintiff was entitled, by way of damages, only to the difference between the contract price and the market price at the time of delivery, and was not entitled to recover the profils he would have realised by the performance of the sub-contract.

The declaration stated that it was agreed between he plaintiff and defendants, that the defendants hould sell and deliver to the plaintiff, and that the laintiff should buy of the defendant, about 500 piculs f China cotton, at the price of 1s. 4 d. per Ib., to be elivered in the month of August, 1864, guaranteed air; that the defendants delivered, and the plaintiff ccepted, 181 piculs, but although all conditions had een performed &c., and the plaintiff was ready and illing to receive, yet the defendants did not, in the aid month of August, or at any other time, deliver to he plaintiff the residue of the cotton, whereby the laintiff was incapacitated from performing a subcontract for the sale of the cotton at a higher price han 18. 4 d., and the plaintiff lost the profit he would have received from the performance of the said con

tract.

Pleas-first, in denial of the agreement; secondly, that the plaintiff was not ready and willing to accept the residue as alleged; thirdly, that the defendants did deliver the residue in August; and, fourthly, that the defendants were prevented, by the act of the plaintiff, from delivering the said cotton. Issue thereon.

At the trial, which took place before Shee, J., at the Liverpool Spring Assizes, 1865, it appeared that on the 1st April, 1864, the plaintiff and defendants, who were cotton brokers at Liverpool, entered into a contract for the sale by the latter to the former of "about 500

piculs of cotton at 1s. 43d. per lb., to be delivered during the following August." On the 25th May the plaintiff contracted to sell to Messrs. Mayall & Anderson the same quantity and quality of cotton, to be delivered in the month of August, at 18. 73d. per lb. The defendants delivered to the plaintiff during the month of August, 181 piculs of cotton only, in consequence of which the plaintiff was unable to fulfil the contract with Messrs. Mayall & Anderson, beyond the delivery to them of those 181 piculs. On the 1st September the price of cotton, such as that contracted for, had fallen again, and at that date was worth 1s. 6d. only. It was admitted that it was the universal custom of Liverpool, for purchasers for "forward delivery" to resell, as was here done.. Reckoning a picul at 129 lbs., the difference between the 500 piculs contracted for and the 181 piculs actually delivered was 41,276 lbs.; and the plaintiff claimed as damages 5157. 19s., being the difference between the amount at which he had bought the cotton from the defendants and that for which he had sold it on the 25th May. The defendants contended that the true measure was the difference only between the the last day of delivery, i. e. the 31st August, which contract price and the market price of the cotton on would be only 257l. 19s. 6d. A verdict was taken for the plaintiff for 5157. 19s., with leave to the defendants to move to reduce the verdict to 2577. 19s. 6d., if the Court should be of opinion that the measure of damages was only the difference between the contract price and the market price on the last day of delivery where the contract was broken.

A rule was accordingly obtained; against which, R. G. Williams shewed cause, and contended that, inasmuch as by the universal custom of the cotton trade at Liverpool, these contracts passed from hand to hand, a resale must be considered as a natural consequence of the original purchase, and must be taken to have been in the contemplation of the parties; and the defendants were, therefore, liable in damages to the larger amount. [He cited Berries v. Hutchinson (18 C. B., N. S., 445); Wilson v. The Lancashire and Yorkshire Railway Company (9 C. B., N. S., 632); Gee v. The Lancashire and Yorkshire Railway Company (6 H. & Norm. 211); Randall v. Raper (2 Bl. & El. 84); Smeed v. Ford (1 El. & El. 602); and Dunlop v. Higgins (1 H. L. C. 381).]

Quain, in support of the rule, was not heard. CROMPTON, J.-I am of opinion that the rule should be made absolute to reduce the damages to 2577. 198. 6d. The extra damages claimed by the plaintiff are not recoverable, either on principle or authority. The contract is to deliver cotton within a certain time; but between the date of the contract and the limit for the time fixed for delivery the price rises, so that the buyer is in a position to make an advantageous resale; and he, in fact, makes a contract with a third person for the sale of the cotton at an enhanced price. The price afterwards falls again; and at the time of the breaking of the contract by the non-delivery, the real or market price is higher than the contract price, but lower than that at which the plaintiff agreed to sell. These being the facts, the question is, what is the measure of damages? Generally speaking, the difference between the contract price and the real or market price at the time of the breach; but here the plaintiff contends that the criterion of the market price does not apply, and claims the difference between the two contract prices. I am of opinion that this is not the measure of damages to which he is entitled. He claims it as special damage, and, in effect, says, "I made a contract at a higher price, the benefit of which I have lost by your default, and therefore I have a right to pin you to that price." But this is not

by which the defendants agreed to sell 500 piculs of
cotton at 1s. 4 d. per lb.; delivery to be made in Ar-
gust. They had, therefore, all the month of Augu
to supply a certain quantity of cotton answering is
description given, at a certain price. At the end of
August the cotton still remained undelivered, and
if the matter had stood there the damages
be the difference between the contract prie d
the market price at the end of August, the
time for delivery, which was 1s. 6d. The
tion is, whether the plaintiff is, upon the face
titled to further damages. The contract was made a
Liverpool, where, it is said, the custom is to buy
speculation; and it was admitted that, in the crimary
course of business, such contracts are to a certain er-
tent the subject of resale; that is to say, the bayer
does not resell or transfer the contract like a bill of
lading, but contracts with some other person to el a
similar quantity of goods, of a like description to e
which he has purchased, looking to his own vendor
for the means of carrying out the sub-contract, Cas
no doubt, may exist where, if one party makes co-
tract binding himself to deliver goods, he mee

within the rule which measures damages by the consequences naturally resulting from the breach, or being within the contemplation of the parties. I entirely agree with what is said in Mayne on Damages (p. 15), where the author, citing Hadley v. Baxendale, says, "The first, and in fact the only, inquiry is, whether the damage complained of is the natural and reasonable result of the defendant's act; it will assume that character if it can be shewn to be such a consequence as in the ordinary state of things would flow from the act, or, in cases of contract, if it appears to have been contemplated by both parties." The extra damage here sought to be recovered does not come within either branch of the rule; and all the authorities are in opposition to the claim. Dunlop v. Higgins was a case under the Scotch law, and all that Lord Cottenham says amounts to nothing more than it was not a case in which the Court ought to reduce the damages to the English rule. In Berries v. Hutchinson the Court of Common Pleas must be taken to have considered the sub-contract as contemporaneous, and known to the defendant at the time of his contract. In Mayne on Damages (p. 18), the author, after remarking that Dunlop v. Higgins is not law in England, proceeds to observe, "It is, how-contract to deliver to others whom the puret may ever, remarkable for a vigorous onslaught upon the English law by so formidable an opponent as Lord Cottenham;" and further on, "The question is not what profit the plaintiff might have made, but what profit he professed to be purchasing. Not what damage he actually suffered, but what the other contemplated and undertook to pay for. It is quite clear that loss of profits by a resale can never be contemplated, unless the resale has taken place at the time, and is communicated to the other party. The reason is, that such a profit is utterly incapable of valuation. It may depend upon a change of weather, a scientific discovery, an outbreak of war, a workman's strike. It will depend upon the energy and sagacity of the person who purchases the goods, and the solvency of the person to whom he sells them again. In short, if the Scotch rule were to be carried out to its fair extent, no one could contract to sell goods which were not actually in his possession, without charging an additional premium commensurate to the profits which the vendee might possibly make, and for which he himself would have to pay if prevented from carrying out his agreement." It is obviously impossible that when a contract is made at a particular period when the price is floating, for delivery at a future time, the seller should contemplate as part of his liability in case of default, some other contract to be made before that time elapses. This is exactly like the case of stock purchased for the account, and in such case no one ever thought that anything but the market price at the time of delivery was contemplated; the reason being, that any other loss to the buyer would not be the natural consequence of the breach of contract (which is, perhaps, a better phrase than "too remote"), and would not be in the contemplation of the parties. The seller contracts upon a speculation of what the price may be at the time of delivery, and not with reference to five or six bargains which the buyer may make in the meantime, about which he knows nothing; and this is very different from the case where parties contract for the supply of material to carry out an actual contract already made and known to both of them. The claim is against reason and authority, and we must hold that the plaintiff has no right to recover more than the difference between the contract price and the market price on the day when the delivery of the goods purchased should have taken place.

BLACKBURN, J.-I am of the same opinion. The facts appear to be, that on the 1st April, 1864, the plaintiff and the defendants entered into a contract,

name, who rely on the original seller's liab
that is not the present case. The additional a
were, that on the 25th May, a time about half-
tween the date of the original contract and the
for delivery, the plaintiff made a sub-contract a
Messrs. Mayal & Anderson for the sale to the
cotton at 18. 73d., of the same quality and qua
and to be delivered at the same time, as that beb
himself contracted to purchase of the defen
Therefore, if in August the defendants had
their contract, the plaintiff would have been
to supply his vendors, and would have reaped
siderable profit by the transaction. The arg
that in the Liverpool market it was a natural cat
quence that a person having made such a contras
the original one in the present case would, upon
strength of it, enter into a similar sub-contract:
further, that it would be in the contemplation of
parties that the breaking of the first contract w
render the fulfilment of the second impossible.
authority was cited for this position; and, in my
nion, it would not be the necessary or natural conse
quence of the defendants' breach of contract. It does
not necessary follow that the purchaser would look i
the delivery of the cotton as the means of enab
him to fulfil his second contract; and if, as the cas
may oftentimes be, he had reason to suspect the s
vency of his vendor, it would be highly imprudent
him to do so. Here, however, the plaintiff did re
on the due delivery by the defendants of the good
purchased, but he is not, therefore, entitled to the
the blame on them, and say that they are liable for
consequent loss. Many analogous cases may be pa
in support of this view. For instance, announcement
are of constant occurrence in the advertising colum
of the "Times" newspaper, that, "owing to failure
remittances from abroad Messrs. A. & B. are co
pelled to suspend payment." Could it be for a
ment argued that a firm thus compelled to suspend or
relinquish business could recover from those by wh
default they suffered all the loss consequent up
their suspension of payment? All that could be
covered in such case would be the amount actually
due, with interest; and the loss of credit and other
inconveniences consequent upon the failure of
remittances could not for a moment be treated
forming the ground of special damage. So in
case of bills of lading, by which goods are ma
deliverable to the consignee or assigns for the
press purpose of making them transferable on

livery, so that they may be used for the purpose of fresh contracts, if the shipowner fails to deliver, it has never been suggested to include in the damages to be recovered the increased value at which the goods had been sold during the interval of carriage. In like manner, in the case of the sale of shares on the Stock Exchange, the contract is made for the express purpose of enabling the purchasers to pass the contract from hand to hand; yet it has never been contemplated that the original seller would be liable for the highest price obtained between the day of contract and the day of account; and yet, if the plaintiff's argument be sound, it would follow that he would be so hable. There is no case precisely in point, but my Brother Crompton has cited from Mayne on Damages what appears to me very cogent reasons why we should not adopt the plaintiff's view; and I am, therefore, of opinion that the rule should be made absolute o reduce the damages to the smaller sum.

SHEE, J.-I am of the same opinion. It seems to me that this claim cannot be brought within the rule n Hadley v. Baxendale, where it was laid down that he recoverable damages are such only as naturally, and in the ordinary course of things, arise from the reach of duty complained of, or such as may fairly be taken to have been in the contemplation of the parties at the time when the contract was entered into. Taking the first branch of this proposition, it is clear the loss is not within it, unless it is to be taken for granted that, in the ordinary course, the plaintiff would sell for profit; but this is not to be assumed, for he might sell at a loss as well as at a profit; the loss of profit, therefore, is not the natural result of he defendants' breach of contract. Then, secondly, an it be said that the consequences which have folowed were in the contemplation of the parties at the ime of the making of the contract? I think not. Even if both parties had communicated all that they new of the circumstances in which they then stood, it would clearly have been impossible to say whether the urchaser would be able to realise a profit in the meanime. The extra damages, therefore, appear to me to ome within neither branch of the rule, and the verlict must be reduced accordingly.—Rule absolute.

SITTINGS AFTER TRINITY TERM.

Before COCKBURN, C. J., BLACKBURN and SHEE, JJ.]
MAIN PRICE v. WESTLEY.
April 24, May 4, and

July 4.

would offer the same for peremptory sale by public auction, on a day and at a place named; that the plaintiff, confiding in these statements and representations, attended at the time and place; that the house and shop were offered, according to the representations and statements; that the plaintiff bid a price, which was the highest bid, except a sum which, to the knowledge of the defendant, was bidden by an agent on behalf of the vendor, contrary to the representation that the sale was peremptory; yet the defendant did not, nor would, sell the house and shop peremptorily, or accept the offer of the plaintiff, or declare the plaintiff the highest bidder and purchaser.

defendant caused the handbills to be published and Pleas-first, not guilty; secondly, denying that the circulated, as alleged.

at the Cambridge Summer Assizes, 1864, it appeared At the trial, which took place before Bramwell, B., that in March of that year the defendant caused certain handbills to be circulated in Soham and the neighbourhood, announcing that on a certain day mentioned a certain house and premises would "be offered for peremptory sale by auction, by Mr. J. Westley, by direction of the mortgagee, with a power of sale, subject to such conditions as will then be declared." At the foot of the handbills was printed, in large capitals, the following words:-" For further particulars apply to Mr. Hustwick, solicitor, or the auctioneer." Mr. Hustwick was the solicitor of the vendor, and the representations were made by his authority; and he bought in the premises at the auction by overbidding. The plaintiff claimed the property of the defendant, and upon his refusal to accept the plaintiff as purchaser, brought the present action.

reserved to enter a verdict for the defendant, in purA verdict was entered for the plaintiff, with leave suance whereof a rule nisi was afterwards obtained; against which

shewed cause.-Two points arise in this case-first, Lush, Q. C., D. Browne, and Markby (April 24) whether the declaration was proved? and, secondly, is there anything in the Statute of Frauds to prevent the plaintiff from recovering? As to the first point, all the allegations in the declaration are proved, viz. the circulation by the defendant of the handbills; the putting up of the property in question for sale; that the plaintiff was the highest bidder; and that the defendant nevertheless refused to accept him as purmeaning to be attached to the words "peremptory chaser. That being so, the question arises on the sale," and it is clear that they can bear no other interpretation than that the defendant undertook to knock Sale by auction-Contract with auctioneer. down the property to the highest bidder. [Blackburn, J.-The handbill states that the property will be The defendant, an auctioneer, caused to be circulated hand- offered for sale by direction of the mortgagee. If so, bills, announcing that on a certain day he would offer the defendant?] The defendant's position is like that can the undertaking be said to be the personal one of "for peremptory sale by auction, by direction of the mortgagee," a house and shop. At the foot of the hand- of a broker who sells without disclosing his principal. bill was printed, " For further particulars apply to [Cockburn, C. J.-An auctioneer selling property is an Mr. H., solicitor, or the auctioneer." H. was the soli- agent, and known to be such. Suppose the person for citor of the mortgagee, and the representations in the the auctioneer to resist him?] Nevertheless, if an whom he acts should choose to alter his mind, how is handbills were made by his authority, but the name of auctioneer profess to sell without reserve, he is liable the mortgagee was not disclosed. At the sale the plain- for not doing so. tiff made the highest bidding, except a bidding which, to Warlow v. Harrison (1 El. & El. the plaintiff's knowledge, was made by an agent, who 295; S. C., 5 Jur., N. S., 313) is in point. There the bought in the property for the mortgagee:-Held, that majority of the judges forming the Court of Error there was no personal contract or undertaking by the were of opinion that an auctioneer advertising a sale defendant to the plaintiff that the property should be sonally contracts that the sale shall be as advertised. without reserve, and not disclosing his principal, perNo circumstance which went to constitute the contract in that case is wanting in the present. In both there was the issuing of an advertisement announcing a sale without reserve, a buying in of the thing offered for sale by the owner, and a refusal to accept the

peremptorily sold.

The declaration alleged, that the defendant, an auctioneer, was retained to sell a house and shop by public auction; that he published and circulated handbills, in which it was stated and represented by him that he

to him, the last bonâ fide bidder cannot claim the let,
whatever remedy he may have for a misstatement:
against the auctioneer he has no remedy." Here no
representation on the part of the defendant has been
alleged or proved.
Cur, ade, n

The judgment of the Court was now (July de livered by

BLACKBURN, J.-The declaration in this case tains averments that the defendant, being an tioneer retained to sell by public auction a house at shop, published and circulated handbills, in wha was stated and represented by the defendant thai de the defendant, would offer the said messuage and sho for peremptory sale by public auction on a day salu a place named; that the plaintiff, confiding in th statements and representations, attended at the and place; and that the messuage was offered at ing to the representations and statements, and th the plaintiff then bid a price, which was the highest bid except a sum which, to the knowledge of the de fendant, was bidden by an agent on behalf zie vendor, contrary to the representation that sa was peremptory; yet the defendant did not, Eval sell the messuage peremptorily, or accept tar di the plaintiff, or declare the plaintiff the highe and purchaser. There were pleas, amongst che not guilty, and a denial that the defendant caused t handbills to be published and circulated as alkged.

highest bidder as purchaser. In delivering the judgment of the majority of the Court of Error, Martin, B., says, "We cannot distinguish the case of an auctioneer putting up property for sale upon such a condition from the case of the loser of property offering a reward, or that of a railway company publishing a time-table stating the times when, and the places to which, the trains run. It has been decided that the person giving the information advertised for, or a passenger taking a ticket, may sue as upon a contract with him. (Denton v. The Great Northern Railway Company, 5 El. & Bl. 860). Upon the same principle, it seems to us that the highest bonâ fide bidder at an auction may sue the auctioneer as upon a contract that the sale shall be without reserve. We think that the auctioneer who puts the property up for sale upon such a condition pledges himself that the sale shall be without reserve; or, in other words, contracts that it shall be so, and that this contract is made with the highest bonâ fide bidder; and in case of a breach of it, that he has a right of action against the auctioneer." Nor did the two other judges forming the Court dis: sent from the judgment of the majority, but preferred "to rest their decision upon the ground that the defendant undertook to have, and yet there was evidence that he had not, authority to sell without reserve;" so that in this at least, that the defendant had entered into a contract, the Court were unanimous. To the same effect is the passage in Story on Agency, sect. 267, where it is said “Thus, where a contract is made with an auctioneer for the purchase of goods at a public sale, and no disclosure is made of the principal on whose behalf the commodity is sold, the auctioneer will be liable to the purchaser to complete the contract, although, from the nature of public sales, it is plain he acts as agent only." And in Han son v. Roberdean (1 Peake, 120), Lord Kenyon says And although where an auctioneer names his principal, it is not proper that he should be liable to an action, yet it is a very different case where the auctioneer sells the commodity without saying on whose behalf he sells it; in such a case the purchaser is entitled to look to him personally for the completion of the contract." Secondly, sect. 4 of the Statute of Frauds, relating to the sale of lands, does not apply in this case more than sect. 17 did in Warlow v. Harrison, where Martin, B., says The case is not affected by the statute, which relates only to direct sales, and not to contracts relating to or connected with them." It appeared on the trial that the defendant was 22 O'Malley, Q. C. (May 4), in support of the rule. auctioneer, and that he had circulated handbiks, a The declaration is framed upon the assumption, that which it was stated, that the premises on the days by the publication of the handbill the defendant per- question would be offered for peremptory sale by a sonally undertook to put up the property for peremption by Mr. J. Westley, the defendant, by direction t tory sale on the day appointed. This is a fallacy. the mortgagee, with a power of sale, subject to sod The auctioneer, if at any time before sale his authority conditions as will then be declared; and at the bottes be withdrawn, is powerless to proceed (Manser v. Beck, of the bill was a statement, in large capitals. 6 Hare, 443), nor can the handbill for a moment bear further particulars apply to Mr. Hustwick, solicit the interpretation that he thereby guarantees that his or the auctioneer." There is no doubt that this v principal will sell. So far from holding himself out a representation by the defendant that he intended as the contracting party in the handbill, the defendant put up the premises for peremptory sale; but i refers therein to Mr. Hustwick, as the solicitor to the also a statement that he did so by direction of th mortgagee, under whose orders the sale is to take place. mortgagee, and as agent for him; and though t There was, therefore, a disclosed principal, with whom, name of that mortgagee is not disclosed on the and not with the defendant, the contract (if any) is the name of the solicitor, Mr. Hustwick, is disciot made; and this distinguishes the present from the case and he is referred to as being the party from w of Warlow v. Harrison, where no principal was dis- further particulars were to be obtained. These p closed. In his Handy-Book on Property Law (p. 25, of the handbill very materially qualify the represe 7th ed.), Lord St. Leonards says, "If you state in the tion stated in the declaration; and it appeared particulars or advertisements that the estate is to be they were true. Hustwick was the solicitor of sold without reserve, the sale would be void against a vendor, and the representations were made by purchaser if any person were employed as a puffer, authority; and the plaintiff's complaint was and actually bid at the sale. But although the owner Hustwick bought in the premises. If there w himself, or an agent for him, bid at a sale notwith-contract on the part of the defendant that the standing such a condition, and the lot is knocked down should be peremptory, it was truly enough said

"

If it had been alleged that any part of this repre sentation was false, to the knowledge of the defenast and that the plaintiff was induced by such des incur expense by going to the place of auction, the like, the count would have been good, plaintiff, on proof of the deceit, would have m titled to such damages as he might have susta reason of expenses or loss of time occasioned attendance at the sale, or possibly to merely damages. But intentional deceit is neither an nor was it attempted to be proved; what the pa relied on was, that there was a contract on the par the defendant, that if the plaintiff was the higue bidder the premises should be knocked down to he and if he had proved such a contract, the declarat would probably, after verdict, be understood as leging it; or at all events might easily be made to de so by an amendment. But we think that no s contract was proved. 1°