1860. GEE v. LANCASHIRE AND YORKSHIRE EXCHEQUER REPORTS. had notice that the mill was stopped for want of it. The notice was given to the Company's servant at Oldham: and he telegraphed to Liverpool. [Wilde, B.-Not until after the goods had been received. Pollock, C. B.—Was RAILWAY CO. not the information given at Oldham, that the mill was at a standstill for want of the cotton, too soon on Wednesday and too late on Thursday?] It was sufficient to bring the damages within the rule in Hadley v. Baxendale (a), viz., such as were in the contemplation of the parties at the time of the contract. POLLOCK, C. B.-This is an appeal against the decision in the County Court, on the ground that the law was improperly laid down by the judge in directing the jury what damages they were to give. In the first place he told the jury that the plaintiffs were entitled to the money they had paid for wages, which was 72. This he treats as a positive item-an amount which the jury ought to give. Then he said that the plaintiffs were entitled to recover whatever actual damage or detriment they had sustained from the non-delivery of the cotton in proper time; that the plaintiffs put the loss of profit at 77. 10s., but no doubt they put it at the highest amount. He assumes this loss to have been sustained in consequence of the non-arrival of the cotton, while in fact it was not in consequence of the nonarrival of the cotton alone, but in consequence of that fact and of the plaintiffs having no other cotton in stock. If it had been established that such is the practice amongst cotton spinners, so that every carrier must have known that the mill would be at a standstill until the cotton arrived, the damages would have been properly assessed. And that would be so whether the carrier had actual notice of the fact, or notice from the well understood course of business. But the business of life is conducted with reference to the necessity (a) 9 Exch. 341. you 1860. GEE v. LANCASHIRE AND YORKSHIRE of guarding against certain accidents, and owners of cotton mills may fairly be expected to guard against the risk of being delayed, by having something in stock. Is a railway Company bound to take notice, that in a particular case a mill would be at a stand if goods were not delivered on RAILWAY CO. a particular day? I think not. I think a carrier is not responsible for such consequences, unless distinct notice is given at the time of the sending of the goods to be carried. If the plaintiffs had said, "Now there must be no mistake, the cotton must be delivered immediately; it is required for a mill which is actually at a stand for want of it, and if it is not delivered in due time will be responsible for all the consequences;" probably the railway Company would not have taken it except at a high rate. Common carriers are bound to carry goods at a reasonable rate, but not to incur such a responsibility as would be imposed upon them if the direction of the judge in this case were correct. I think that the rule as to damages of this sort was correctly laid down in Hadley v. Baxendale (a), and that the judge did not follow it because he assumed that the whole loss arose entirely from the default of the defendants in not delivering the goods, whereas it arose partly from that and partly from the plaintiffs having no cotton to go on with. BRAMWELL, B.-I am of the same opinion, though I think it likely that the same damages may be given if the case is again tried. The law on this subject is laid down correctly in Hadley v. Baxendale (a). To ascertain the damage, it is necessary to find out how much better off the plaintiffs would have been if the contract had not been broken. The plaintiffs are not necessarily entitled to recover the whole amount given. Hadley v. Baxendale (a) decides that a de(a) 9 Exch. 341. 1860. GEE v. LANCASHIRE AND YORKSHIRE fendant is not liable, except for such damages "as may fairly and reasonably be considered, either arising naturally, i. e., according to the usual course of things, from the breach of contract itself, or such as may reasonably be supposed to have RAILWAY CO. been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it." I am not sure that another qualification might not be added which would be in favour of the plaintiffs in this case, viz. that in the course of the performance of the contract one party may give notice to the other of any particular consequences which will result from the breaking of the contract, and then have a right to say:-"If, after that notice, you persist in breaking the contract I shall claim the damages which will result from the breach." But in any case you must first find out the loss sustained by the plaintiff, and afterwards give it him minus any damages excluded by these rules. And I cannot but think that if the judge had left it to the jury to determine the damages in that way, they would probably have given the same sum which they have already given. But suppose it had appeared that cotton spinners usually keep a stock sufficient for a mill's consumption in hand; the inconvenience of the delay in delivering the cotton would be comparatively small. It may turn out that the plaintiffs ought not to receive more than that, because the damage which resulted is not such as in the usual course of things would result. Therefore we cannot say as a matter of law that the plaintiffs were entitled to recover the two sums in question. Mr. Wheeler contends that, on a fair construction of the summing up, the judge did not lay down as matter of law that the plaintiffs were entitled to those sums, but asked the jury what was the actual damage and detriment that the plaintiffs had sustained by reason of the non-delivery of the cotton. If the judge had said, as a proposition of fact, "I think you 1860. GEE v. LANCASHIRE AND YORKSHIRE that will consider that the plaintiffs are entitled to claim for wages," I doubt if there would have been any objection to the summing up. But he says, "Where, under circumstances such as exist in the present case, by the neglect of a carrier a manufacturer has no material to carry on his busi- RAILWAY CO. ness, he has a right in my opinion to charge as legal damage such loss as naturally and immediately arose from the stoppage of his mill." He should have added, "If the jury are of opinion that the stoppage was the natural consequence of the non-delivery of the goods." I say this in order that the County Court judge may not suppose on the next trial that we think that these two sums are not recoverable; for I do not say so; and I do not understand that the other members of the Court think so. CHANNELL, B.-The rule as to the measure of damage was rightly laid down in the case of Hadley v. Baxendale. But it is contended that upon the facts of the present case it is distinguishable from Hadley v. Baxendale, and that the ruling of the judge is not inconsistent with the rule laid down by the Court in that case. Taking the whole of the summing up together, it appears to me that the County Court judge did direct the jury to consider the wages and the loss of profit as the measure of damages. As to the profit, he gave them an opportunity of correcting the plaintiffs' estimate of the amount, if they thought it erroneous. But he made them understand that, after setting right the amount of profit, they were to take the loss of profit and wages as the measure of damage. I think that was wrong. It cannot be said, as a matter of law, that these were damages which naturally flowed from the breach of the contract; or that any thing had passed to shew that they were in the contemplation of the parties when the contract was entered into. 1860. GEE v. LANCASHIRE AND YORKSHIRE WILDE, B.- The plaintiffs' claim for damages is divided into four heads. The County Court judge told the jury to dismiss two of them from their consideration. As to the other two, the claim for loss of wages paid, and for RAILWAY Co. anticipated profits, he told them that the plaintiffs had a right to charge as legal damage such loss as naturally and immediately arose from the stoppage of the mill. He then pointed out what was the "legal damage,” intimating that it was for them to estimate the amount;-as to the wages, that the plaintiffs were entitled to the money they had actually paid, which was 77; as to the profits, that the jury were to estimate them, and having done so to give as damages, over and above the sum of 77., such amount as, in their opinion, would be the actual loss and detriment that the plaintiffs had suffered, having previously pointed out that this was the loss resulting from the stoppage of the mill. The question is whether that is correct. According to the case of Hadley v. Baxendale the damage which, as a matter of law, must be considered as a measure of damages, is such as either arises naturally from the breach of contract, or such as both parties might reasonably have expected to result from a breach of the contract. It has been pointed out by the Lord Chief Baron that the stoppage of the mill was not a natural consequence of the non-arrival of the bales of cotton, but of the non-arrival of the bales and of the plaintiffs' having no cotton to go on with. Was it damage which the parties might reasonably expect? It would be, if it were the practice to work all the cotton mills in the neighbourhood from hand to mouth, and not the practice for mill owners to keep any stock of cotton in hand. We are pressed to say what is the rule as to damages. All I mean to say is that these claims are not the measure of damages. A judge cannot lay down that the plaintiffs, as a matter of law are entitled to them as the legal measure of damage. My |