Exch. of Pleas, kind. 1841. MONDEL ข. STEEL. There A. contracted, in consideration of 2201. 10s., to sell and plant a quantity of trees on B.'s land; and also that he would, at his own costs and charges, keep in order the trees for two years after the planting, and that such as should die during that period should be replaced by him; and in an action to recover the price, it was held that evidence of non-performance by A. of any part of the contract on his part, was admissible in reduction of damages. Bayley, B., there says, in the course of the argument, "Street v. Blay goes almost the whole length of this case;" and in giving judgment he says, "Is the plaintiff liable to an abatement from the amount agreed on in respect of misconduct on his part, or non-fulfilment of what he is bound to perform? The case of Street v. Blay puts this in a plain and satisfactory point of view, not leaving the defendant to a cross action to recover for the diminution in value by reason of the plaintiff's non-performance of the contract, but entitling him to deduct the amount of damage he has sustained thereby; that is a very plain and intelligible rule, and the present case shews the wisdom of it." That authority goes the entire length of what the present defendant is contending for. The contrary doctrine would be exceedingly unjust. If a party elects to derive a benefit by a plea in a former action, it estops him from bringing a cross action. The policy of the law is to compel the party to come forward with the whole of his case, and not to permit him to lie by and see his opponent's case, and then bring a cross action. In Hennell v. Fairlamb (a), it was held that a party cannot bring an action for what has been the object of a set-off in a former action by the defendant against him. That is the view taken of this subject in Chitty on Pleading, (vol. i. p. 571, 6th edition), where it is said, "These statutes were passed for the benefit of defendants, and they are not imperative; so that a defendant may waive his right to set (a) 3 Esp. 104. 1841. MONDEL v. STEEL. off, and bring a cross action for a debt due to him from Exch. of Pleas, the plaintiff; and where he is not prepared, at the time the plaintiff sues him, to prove his cross demand, it is most advisable not to plead or give notice of set off; for, in case he should go into evidence upon the trial in support of his cross demand, and fail in the attempt, he cannot afterwards proceed in a cross action for the amount; and a party cannot bring an action for what he has succeeded in setting off in a former action against him.”—He also cited Eastmure v. Laws (a), Outram v. Morewood (b), and Com. Dig. Action (K 3). Cleasby, in reply.-There was nothing whatever in the former action to denote what amount of damage had been sustained in consequence of the breach of the contract. It is an assumption, to say that the defendant has made his election. Even if this were like the case of Street v. Blay, the giving in evidence a breach of the agreement in reduction of damages, in the former action, would not prevent the defendant in that action from afterwards bringing an action to recover the special damage sustained by the breach of contract. Avoiding circuity of action means that the party should not be compelled to pay the whole sum specified in the agreement, and then be driven to a cross action. The distinction between the present case and those cited is, that this claim could not be pleaded as a set off, so that the plaintiff in the original action would at all events be entitled to recover nominal damages. There is no analogy between this case and a set-off, because this matter was no answer to the former action. No claim was made in respect of the breach of the contract, but the defendant merely insisted on the breach of contract as shewing that the plaintiff in that action was not entitled to recover the sum agreed upon, but only on a quantum meruit. 1841. MONDEL v. Exch. of Pleas, Suppose the defendant in that action had paid into Court all that the plaintiff was entitled to recover, could not he afterwards sue for the breach of contract? A set-off is a satisfaction of the counter claim, which this was not. It does not appear that the jury have given any compensation for the special damage arising from the breach of contract. The plea, therefore, is no answer to the action. STEEL. Cur. adv. vult. The judgment of the Court (a) was now delivered by PARKE, B.-In this case, the declaration is in special assumpsit on a contract to build a ship for the plaintiff, at a certain rate per ton, and according to a certain specification and the breach assigned is for not building a vessel with scantlings, fastenings, and planking, according to such specification; by reason whereof the ship, on a voyage from London to New South Wales and back, was so much strained that it became necessary to re-fasten and repair her. To this declaration there was one plea, to which it is unnecessary to allude, as it was admitted to be bad on special demurrer, and is to be amended; and a second plea, on which the question, which we have taken time to consider, arises. This plea states in substance, that the defendant had sued the plaintiff for the balance of the agreed price of the vessel, after payment of £3500, and also for a sum of £134 odd for extra work, in the form of an action for work and labour, and for goods sold and delivered; that issue was joined, and, on the trial of the cause, the plaintiff gave evidence in his defence of the same breach of contract alleged in the declaration; and insisted, that if the amount of compensation to which he was entitled, exceeded (a) Parke, B., Alderson, B., Gurney, B., and Rolfe, B. 1841. MONDEL v. STEEL. or equalled the balance of the price and the value of the Exch. of Pleas, extra work, the now plaintiff was entitled to a verdict; if it was less, that he was entitled to a deduction from the amount of both, of such amount of compensation. The plea proceeds to state, (and, we must assume, correctly, for the purposes of this argument, though the statement has arisen from mistake), that the learned judge before whom the cause was tried, my brother Rolfe, so directed the jury; and that the jury found that the now defendant had committed a breach of contract, and was entitled to some compensation, which they deducted from the price of the vessel and value of the extra work; and the now defendant had judgment for the amount, after such deduction had been made, since the commencement of this suit. The plaintiff demurred to this plea, assigning several causes of special demurrer, which it is not necessary to notice, as we are all of opinion that it is bad in substance. The ground on which it was endeavoured to support the plea, in a very ingenious argument, was this: that a defendant in an action for the stipulated price of a chattel, which the plaintiff had contracted to make for the defendant of a particular quality, or of a specific chattel sold with a warranty, and delivered, had the option of setting up a counter claim for breach of the contract in the one instance, or the warranty in the other, in the nature of a cross action; and that if he exercised that option, he was in the same situation as if he had brought such an action; and consequently, could not, after judgment in one action, bring another; and the case was likened to a set-off under the statutes. This argument was founded on no other authority than an expression of Lord Tenterden in giving the judgment of the Court in the case of Street v. Blay (a), his lordship having said that a breach of warranty might be given in evidence in an action for the price of a specific (a) 2 B. & Ald. 462. 1841. MONDEL น. STEEL Exch. of Pleas, article sold, in mitigation of damages, "on the principle, it should seem, of avoiding circuity of action." But we are all of opinion that no such inference is to be drawn from that expression; what was meant was, that the sum to be recovered for the price of the article might be reduced by so much as the article was diminished in value, by reason of the non-compliance with the warranty; and that this abatement was allowed in order to save the necessity of a cross action. Formerly, it was the practice, where an action was brought for an agreed price of a specific chattel, sold with a warranty, or of work which was to be performed according to contract, to allow the plaintiff to recover the stipulated sum, leaving the defendant to a cross action for breach of the warranty or contract; in which action, as well the difference between the price contracted for and the real value of the articles or of the work done, as any consequential damage, might have been recovered; and this course was simple and consistent. In the one case, the performance of the warranty not being a condition precedent to the payment of the price, the defendant, who received the chattel warranted, has thereby the property vested in him indefeasibly, and is incapable of returning it back; he has all that he stipulated for as the condition of paying the price, and therefore it was held that he ought to pay it, and seek his remedy on the plaintiff's contract of warranty. In the other case, the law appears to have construed the contract as not importing that the performance of every portion of the work should be a condition precedent to the payment of the stipulated price, otherwise the least deviation would have deprived the plaintiff of the whole price; and therefore the defendant was obliged to pay it, and recover for any breach of contract on the other side. But after the case of Basten v. Butter (a), a different practice, which had been partially (a) 7 East, 479. |