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gave evidence in support of his said alleged defence, and Exch. of Pleas,

1841. in answer to the said causes of action of him the now defendant; and then insisted at the said trial, that if the said MONDEL jury were of opinion and found that the now defendant had committed the said breach of contract, or any part thereof, and that the amount of compensation or of damages to which he the now plaintiff was entitled by reason thereof, exceeded or equalled the amount of the said balance, and the value of the said extra and additional work, labour, and materials as aforesaid, that he, the now plaintiff, was entitled to have the verdict found for him. And further, that if the said jury were of opinion and found that he the said plaintiff was entitled to any compensation or damages in respect of the said alleged breach of contract, or any part thereof, although the same might be less in amount than the amount of the said balance, and the said value of the said extra and additional work, labour, and materials, that he the now plaintiff was entitled to have the same deducted from the said last-mentioned amount; and the said now plaintiff then prayed the said Baron to state to and inform the said jury, that he the now plaintiff was so entitled. And the defendant further saith, that in pursuance of such prayer of the now plaintiff, and in accordance therewith, the said Baron did then, in summing up the evidence at the said trial, state to and direct the said jury, that if they found and were of opinion that the now defendant had committed the said alleged breach of contract, or any part thereof, that they should decide and ascertain what was the amount of compensation or damages to which the now plaintiff was entitled by reason thereof; and that if the said compensation or damages equalled or exceeded the amount of the said balance, and the value of the said extra and additional work and labour and materials, that they should find their verdict for the plaintiff in this action; and that if the amount of compensation or damages to which

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Exch. of Pleas, they found the plaintiff in this action was entitled, was 1841.

less than the amount of the said balance and the vaMONDEL lue of the said extra and additional work and labour

and materials, that they should deduct such compensation or damages from the said amount, and find their verdict for the defendant in this action for the difference only. And the defendant further says, that the said jury, in pursuance of such direction, did then find that the defendant in this action had committed a breach of the said contract in the declaration in this action mentioned, and that the plaintiff in this action was entitled to compensation and damages in respect thereof; and then found their verdict for the now defendant, for the difference only between the said compensation and damages which they so found the plaintiff in this action was entitled to by reason of the said breach of contract, and the amount of the said balance, and the value of the said extra and additional work and labour and materials as aforesaid, that is to say, for the sum of £120 only, which was considerably less than the amount of the said balance as aforesaid, and the value of the said extra and additional work and labour and materials. And the defendant further says, that the said jury then found all the said issues so as aforesaid joined for him the defendant, and assessed his damages on occasion of the premises in the said action, besides his costs and charges by him in his said suit, to the said sum of £120 as aforesaid, and those costs and charges to 408.; and such proceedings were afterwards had in her Majesty's said Court of Exchequer at Westminster, that afterwards, and after the commencement of this suit, to wit, on &c. aforesaid, it was considered by the said Court that the now defendant should recover against the now plaintiff his said damages, costs, and charges by the jury aforesaid in form aforesaid assessed, and also £262 for his costs and charges by the said Court adjudged of increase to the now defendant, with his assent, which said

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damages, costs and charges in the whole amounted to £384, Exch, of Pleas,

1841. and the now plaintiff in mercy, &c.; as by the record and proceedings thereof still remaining in the said Court of our Lady the Queen, before the Barons of her Exchequer at Westminster, more fully and at large appears, which said judgment still remains in full force and effect, not in the least reversed or made void. And the defendant in fact saith, that the said alleged breach of contract by the now defendant, or by the plaintiff in the declaration in this suit alleged, is the very same identical breach of contract so alleged and proved by the now plaintiff at the said trial, and relied upon by him as aforesaid, and for and in respect of which he obtained such compensation and damages as aforesaid. Verification and prayer of judgment.

Special demurrer, and joinder in demurrer.

Cleasby, in support of the demurrer.—The plea is bad in substance. The facts stated in it afford no answer to the present action, which is brought to recover the special damage resulting from the breach of contract.-He was then stopped by the Court, who called on

Martin to support the plea.- The plea shews that the defendant has already received a compensation for the breach of contract, and that is an answer to the action. If a person elects to receive compensation for a breach of warranty or contract, it is a satisfaction. An impression formerly prevailed, that when a party contracted to pay a stipulated price for work and labour, the party performing it was entitled to recover the stipulated price, and that the only remedy for a breach of the contract was by a cross action. But in Basten v. Butter (a) a different opinion was entertained, and it was there held, that where the plaintiff declared upon a quantum meruit for work and

(a) 7 East, 479.

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Exch. of Pleas, labour and materials, it was competent to the defendant, 1841.

even without notice to the plaintiff, to prove that the work MONDEL

was not worth so much as the plaintiff claimed; and if it STEEL. appeared that the plaintiff had been paid on account as

much as the work was worth, he could not recover. In Poulton v. Lattimore (a), where, by a contract for the sale of cinque-foin seed, the vendor warranted it to be good new-growing seed, and soon after the sale the buyer was told that it did not correspond with the warranty, and he afterwards sowed part and sold the residue; it was held, that in an action to recover the price, it was competent to the buyer to shew that the seed did not correspond with the warranty. Bayley, J., there

says, the nature of the article and of the contract of warranty, I think the vendee was not bound to return the seed without using it; that by keeping it he has not precluded himself either from bringing an action for breach of the warranty, or from insisting on such breach in this action, in order to shew that the seed was of less value than the seller represented it to be.” And Littledale, J., says, “I am of opinion, that where goods are warranted, the vendee is entitled, although he do not return them to the vendor or give notice of their defective quality, to bring an action for breach of the warranty; or if an action be brought against him by the vendor for the price, to prove the breach of the warranty, either in diminution of damages or in answer to the action, if the goods be of no value." [Alderson, B.-If two-thirds of the seed were bad, and one-third good, the vendor would be entitled to damages for that which is good.] This is the case of a single article, that of a ship. This doctrine is more fully gone into in the case of Street v. Blay (6), where it was held, that a person who had purchased a horse warranted sound might, in an action by the vendor for the price, give the breach

(a) 9 B. & C. 259; 4 Man. & Ry. 208.

(6) 2 B. & Adol. 456.

of warranty in evidence in reduction of damages. It was Exch. of Pleas,

1841. there said by the plaintiff's counsel in argument, that “a defence of this kind is in the nature of a cross action upon

MONDEL the warranty, and is admitted in order to avoid circuity STEEL, of proceedings,” and that view is adopted by Lord Tenterden, C. J., in delivering the judgment of the Court :The cases have established that the breach of warranty may be given in evidence in mitigation of damages, on the principle, as it should seem, of avoiding circuity of action." It would be quite absurd to say that it is to avoid circuity of action, if the other right of action is not extinguished. [Parke, B.—This is not the case of a warranty ; it is an agreement to build a ship of a given description, and if it is not built according to the agreement, the vendee is not bound to receive it; but if he does receive the ship, is he not bound on a new contract on a quantum meruit, to pay for it?] In Thornton v. Place (a), Parke, J., was of opinion, that where a tradesman furnishes work differing from the specification agreed on, he is not entitled to the actual value of the work, but only to the agreed price, minus such a sum as it would take to complete the work according to the specification. [Parke, B.—The rule there laid down does not apply to the present case : that action was on a quantum meruit.] The object is the avoiding circuity of action, and that must necessarily involve the extinguishment of the other right of action. The cases shew, that although the plaintiff might have sued originally for the damage sustained for the breach of contract, yet that, having given the breach in evidence in reduction of the damages claimed in the former action, he has thereby exercised the option which the law allowed him, and, as in the case of a set-off, has precluded himself from bringing this action. Allen v. Cameron (6) meets the objection as to the distinction between a warranty and a contract of this

(a) 1 M. & Rob. 218.

(6) 1 Cr. & M. 832.

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