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A consideration is legal if it be not repugnant to the revealed law of God, to the general policy of the common law, or to some legislative provision: Lightfoot v. Tenant, 1 B. 4. P. 554; 1 Fonbl. 345. Illegal considerations may be distinguished in three heads : 1. The doing an act malum in se, or malum prohibitum; 2. the omission of the performance of a legal duty; and, 3. a stipulation encouraging such crime or omission : 1 Bla. C. 57; Co. Lit. 206, b. n. ); Lloyd v. Johnson, 1 B. 4. P. 340. They are either void at common law or by statute. Those void at common law and some by statute, and the consequent defences arising thereon, will be considered, post Illegal Consideration.The rest of those which are void by statute, and the consequent defences arising on them, will be found under the various titles of ** Usury,Gaming,(Horse-racing,Stockjobbing,Offices, Sale of," "Simony," "Election,Sunday.

The effect of the illegality of consideration will be more fully considered, post, Illegal Consideration.It may, however, be here observed, that if only a portion of the consideration, or subject matter of an agreement or promise, be invalid at common law, that part of it can be separated from the rest, and may be rejected, and the rest of the agreement or promise remain good; but, if any part of the consideration or subject matter of the contract be contrary to a statute, the whole will be bad; Hob. 14; 1 Mo. 35, 6; post, Illegal Consideration."

Plt. must show that the consideration of the contract proceeded from the deft.'s express request, or that from which a request may be inferred, the necessity for which follows from the principle of law, that no one can constitute another his debtor without his permission : see 1 Rol. Ab. 11; 1 Saund. 264, n. 1; Stokes v. Lewis, 1 T. R. 20; Hayes v. Warren, Str. 933; Sły. 465; Bourne v. Mason, I Vent. 6. See ante, 141, as to when a contract may be inferred.

Proof of the Subject Matter of the Contract.] This must be proved; and the subject matter must be to perform some legal act, or to omit to do something, the performance whereof is not enjoined by law: Lee v. Drake, 2 Şalk. 468; Parsons v. Thompson, 1 H. Bla. 322. The general principles as to the validity of the consideration of a contract will here apply; the stipulation of each party being in general the considera. tion for the others' performance.

* Proof of Performance of Condition Precedent.] The [*1497 plt. must prove that he has performed every condition which is imposed on him by the terms of the contract, before he can call on deft. for a performance of the act, for non-performance of which the action is brought. We have already considered as to what constitutes a condition precedent, ante, 121 to 127; and proof must be adduced accordingly. A variance in the proof from the statement in the pleadings would be fatal : ante, 121.

Proof of Notice to or Request on Defendant.] We have already seen when it is necessary to aver in the declaration a notice to dest. of some act, or a request on him to perform one, before he can be sued for

a breach of the contract; and proof of it must be adduced accordingly: ante, 130, 132. The notice or request must be proved to have been made personally or by letter, and by the plt. or his agent. As to proof of demand by agent, Squier v. Hunt, 3 Price, 68.

Proof of Breach.] The plt. must prove deft.'s breach of the con. tract, as stated in the declaration, ante, 133; and this must necessarily depend on the particular nature of the action. See the different titles throughout this work. All the acts necessary to constitute a breach should be fully proved.

Proof of Damages.] The plt. must in all cases be prepared to prove the amount of the damages he has sustained; that they were sustained before action brought, or before the time when the declaration appears to have been filed : 2 Saund. 171, n. The nature of the proof must depend on the facts stated in the declaration, and whether the damages be for a mere pecuniary demand, or for a general and unliquidated one. In an action for not indemnifying plt. from his law expenses, which deft. undertook to pay if plt. would proceed in an action, it was held unnecessary to prove that plt. had actually paid his attorney the amount of such expenses, his being liable so to do being sufficient: Bullock v. Lloyd, 2 C. f. P. 119. It may be as well observed, that though the statement of the damages be larger than the proof, it will not prejudice: ante, 135. The plt. will, at all events, be entitled to some, though nominal damages, if he prove the breach of contract. The jury cannot give higher damages than the amount laid in the declaration : Cheveley . Morris, 2 W. Bla. R. 1300; Tidd, 927.

Where the action is brought for a mere money demand, a jury can hardly be warranted in giving more or less than the amount of that demand, if deft. does not by his defence show it may be reduced : Bac. Ab. Damages, D. 1; James v. Morgan, 1 Lev. 111. In some cases, interest will be added to the principal: post, Interest."

Where the parties stipulate for a liquidated sum to be paid as damages, the jury are bound to give damages to the full amount of that sum : Farrant v. Olmius, 3 B. 8. A. 692; Barton v. Glover, Holt, C. 43, 46; Lowe v. Peers, 4 Burr. 2229. But, where they stipulate merely for a penalty to be paid, the jury may give less than the amount of such penalty; or if plt. does not proceed for the penalty, they may even give more: Harrison v. Wright, 13 East, 343; Barton v. Glover, Holt, C. 44; Winter v. Trimmer, 1 W. Bla. Ř. 395; but see Wilbeam v. Ashton, i Camp. 78. It should be observed, that, by proceeding for the penalty which plt. recovers, he cannot recover beyond that penalty : ib. With respect to what stipulation amounts to an agreement to consider the sum more as liquidated damages than a penalty, it has been said by Heath, J., in Astley v. Weldon, 2 B. 4. R. 353: “ It is very difficult to lay down any general principles in cases of this kind; but I think there is one which may be safely stated. Where articles contain cove

nants for the performance of several things, and then one large [*150) sum is stated at the end to be paid upon *breach of performance,

that must be considered as a penalty; but where it is agreed

that, if a party do such a particular thing, such a sum shall be paid by him, there the sum stated may be treated as liquidated damages.” And Chambre, J., observed : “ There is one case in which the sum agreed for must always be considered as a penalty, and that is where the payment of a smaller sum is secured by a larger.” Where the word “penaltyis introduced, and there is no other term explaining it, it is in general clear that the sum is only to be treated as a penalty : Smith v. Dickenson, 3 B. & P. 630; Harrison v. Wright, 13 East, 345. On the other hand, where the words liquidated damages," or their equivalent, are used, and there are no other explanatory words, the sum can scarcely ever be considered as a penalty : Barton v. Glover, Holt, C. 43. In deciding the point, however, the whole of the agreement, and the evident intention of the parties, must be regarded, Davies v. Penton, 6 B. 8. C. 222, 9 D. &. R.; the courts always inclining to treat the sum rather as a penalty : Holt, C. 43. In a late important decision on this subject, where A. agreed with B. to sell him the good-will of A.'s business, and to demise him his house in which the business was carried on, for which B. was to pay £800, and to take furniture and fixtures at a valuation, and they were afterwards valued at £174, £400 was paid to A. at the time of executing the agreement, and B. agreed to accept and pay two bills of exchange, one for £400, payable twelve months after date, and the other for £174, payable two months after date, and A. agreed not to carry on the business within five miles of the house; and, for the true performance of this agreement, each of them did thereby bind himself to the other of them in the penal sum of £500, to be recovered for breach of the agreement in a court of law, as and by way of liquidated damages: it was held, that this sum was a penalty : Davies v. Penton, 6 B. &. C. 216. And where it was agreed “hy and between the parties, that either of them neglecting to perform this agreement according to the true intent and meaning hereof, shall pay to the other of them the full sum of £200, of lawful, &c., to be recovered in any of his majesty's courts of record at Westminster," the court held this more as an agreement for a penalty than liquidated damages : Astley v. Weldon, 2 B. &. P. 346. On the other hand, where it was agreed between plt. and deft. that the latter should take an assignment of the house of the former, and that either party not fulfilling all and every part of the agreement, should pay to the other £500, “ thereby settled and fixed as liquidated damages,” the court held, that, on breach of the agreement, by omission to take an assignment, the deft. was liable to pay the whole £500, and that it was not a mere penalty: Reilly v. Jones, i Bing. 302; 8 Moo. 244, s. C. Where the agreement was, “I do hereby promise Mrs. C. L., that I will not marry with any other person besides herself: if I do, I agree to pay her £1000 within three months next after I shall marry any body else,” it was held, that the sum specified formed the sole measure of damages, as fixed and liquidated between the parties: Lowe v. Peers, 2 Burr. 2225. A reservation of “ £50 per acre for every acre converted into tillage, &c.," is in the nature of liquidated damages : Farrant v. Olmius, 3 B. 8. A. 692; 4 Burr. 2228; Birch v. Stephenson, 3 Taunt. 489. And so, where two persons agreed to perform certain work in a limited time, “or to pay a stipulated weekly sum for such time afterwards, as it should remain unfinished," it was held, the jury must give such weekly payments, they being in the nature of liquidated damages : Fletcher v. Dyche, 2 T. R. 32.

Where the action is brought for the recovery of general and unliquidated damages, and not for a mere money demand, the amount of such damages is entirely in the province of the jury, who may take into consideration any consequential injury arising from the breach of the con

tract. If the damages given be excessive, the court will some[*151] times grant a new *trial, Tidd, 940; but not so if they be too

small; at least, it seems very unusual so to do, unless, indeed, in actions on mere money demands, or on inquisitions: ib.

With respect to what consequential damages the jury may take into consideration, they must be such as will be warranted by the fair, legal, and natural result of the breach of deft.'s agreement: ante, 136; Vicars v. Wilcocks, 8 East, 1; Flower v. Adam, 2 Taunt. 314. They must, if they be not the necessary result of such breach, appear upon the declaration, and be proved accordingly: ante, 136. If the buyer of a horse, with a warranty, relying thereon, re-sell him with a warranty, and, being sued thereon by his vendee, offer the defence to his vendor, who gives no direction as to the action, the plt. defending that action is entitled to recover the costs thereof from his vendor, as part of the damage occasioned by his breach of warranty: Lewis v. Peake, 7 Taunt. 153; 2 Marsh. 431, s. 6. And, it seems, in such action, the vendee would be entitled to the expenses of the horse's keep, if he prove he tendered back the horse in proper time: Caswell v. Core, 1 Taunt. 566. And, where the seller rescinded the contract, it was held he was liable for the keep from the time of the contract: King v. Rice, 2 Chit. Rep. 416. So, where the deft., a broker, contrary to the orders of the plt., his principal, purchased goods of an inferior quality, per quod one J. S., who had commissioned the plt. to purchase the goods for him, sued the plt. for the bad quality of the goods, and recovered damages and costs, it was held that the measure of damages was not the mere difference in price between the two kinds of goods, but the amount of the damages and costs recovered in the action against the plt.: Mainwaring v. Brandon, 8 Taunt. 202; 2 Moo. 125, s. C. The court, however, compelled the plt. to give this undertaking: namely, that he should assign the goods to to the deft., or sell and account with him for the net proceeds thereof. .Where the tenant, under a lease containing a covenant to repair, underlet the premises to a person, who entered into a similar covenant, and the original lessor brought an action on this covenant in the first lease, and recovered, it was decided that the damages and costs recovered in that action, and also the costs of defending it, might be assessed as special damages in an action against the under-tenant, for the breach of his covenant to repair; and the court set aside an inquisition, by which only the damages paid by the plt. were awarded to him: Neale v. Willie, 3 B. & C. 533; 5 D. & R. 442, s. C. And, in an action for the breach of a warranty of a chain cable, the plt. may recover the value of the anchor to which the cable was attached, on proving that the cable was broken, and that the crew slipped it, in order to avoid danger: Borradaile v. Brunton, 2 Moo. 582; 8 Taunt. 535, s. c.; and see those cases in Chit.

for the Hopkins vsimilar conttion being meturn the pur bargain

Cont. 340, 1. In an action for breach of contract in not accepting goods sold to deft., plt. may, if he have legally resold the goods, recover damages to the amount of the difference in the price produced by the two sales, see Mertens V. Adcock, 4 Esp. Rep. 251; and, in some cases, warehouse-room, &c., Greaves v. Ashlin, 3 Camp. 427. Where a person who had contracted for the purchase of an estate, but had not obtained a conveyance, put up the estate for sale in lots by auction, and engaged to make a good title by a certain day, which he was unable to do, as his vendor never made a conveyance to him: held, that a purchaser of certain lots at the auction might, in an action for not making a good title, recover not only the expenses which he had incurred, but also damages for the loss which he sustained by not having the contract carried into effect: Hopkins v. Grazbrook, 6 B. d. C. 31. On the other hand, where the vendor on a similar contract had some, though not a sufficient, title to the estate, and, on an objection being made to the title, offered to convey the estate with such title as he had, or to return the purchase-money with interest, it was held that no damages for the loss of the bargain were recoverable: Flureau v. Thornhill, 2 W. Bla. R. 1078, commented on in 6 *B. &. C. 33; and see Johnson v. John- [*1527 son, 3 B. . P. 167, Palm. 364. In an action for not replacing stock, it is no legal damage that plt. was prevented completing an advantageous contract he had entered into: 1 Chit. Pl. 296. So, extra costs are not recoverable as special damage: Hathaway v. Barrow, 1 Camp. 151, 2; Sinclair y. Eldred, 4 Taunt. 7; Webber v. Nicholas, M. 8. M.; Jenkins v. Biddulph, 4 Bing. 160; and see other instances, post, "Case.

With respect to the measure of the damages, it has been held, in an action on warranty, if there has been no offer to return the goods warranted, the measure of the damages is the difference between the price fixed and the real value: Caswell v. Coare, 1 Taunt. 566; Germaine v. Burton, 3 Stark. 32. In an action of assumpsit for not delivering, goods upon a given day, the measure of damages is the difference between the contract price and that which goods of a similar quality and description bore on or about the day when the goods ought to have been delivered ; Gainsford v. Carroll, 2 B. L. C. 524, 4 D. 8. R. 161, s. C. And this, though the vendor, in the interim, had resold and refused to complete, if the vendee did not assent to rescind the contract: Leigh v. Paterson, 2 Moo. 588, 8 Taunt. 540, s. C. And on a failure of a contract to replace stock, it seems, though the measure of damages is the price at the day when it ought to have been replaced, or at the day of the trial, at the option of the plt., MArthur v. Seaforth, 2 Taunt. 257, Shepherd v. Johnson, 2 East, 211; yet the highest price at any.intermediate day cannot be given: 2 Taunt. 257. And if, after the appointed time to replace the stock, and while the market was rising, deft. offered to replace the stock, the criterion of damages would be the value of the stock at the time of the tender, and not the increased value at the time of the trial : 2 East, 211. Upon a contract to replace stock and pay dividends in the mean time, although the jury give damages for the value of the stock and the amount of the damages, yet, on affirmance of the judgment in error, the measure of increase is not the further damages that may VOL. I.

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