fendant the option of retaining the same upon paying the damages assessed." recoverable Upon a contract of sale of a specific chattel with a war- Damages ranty, the measure of damages for a breach of the warranty for breach varies according to whether the chattel has been returned or of warranty, - of specific kept. The chattel can be returned only where the contract goods. provides for a return of the chattel in the event of a breach of warranty, or where the seller agrees to take it back, or where the sale was effected by a fraudulent warranty and the buyer has repudiated it on that ground (a). If the chattel has been returned, the measure of damages is the amount of price which was paid for it, unless it was returned under terms agreed upon to a different effect. If the chattel is kept, the measure of damages is the diminution in value owing to the defect warranted against (b). If the buyer has resold the chattel with a similar warranty at an advanced price, the loss of profit cannot, in general, be recovered; but it seems that such sale would be evidence of the value of the chattel if it had been sound; and similarly, if he has resold it after discovery of the breach of warranty at a diminished price, such sale would be evidence of the real value of the chattel (c). The buyer of a horse with a warranty resold it with a similar warranty, and, having been sued for a breach, offered the defence of the action to the seller and, receiving no answer, defended the action himself; it was held that he might charge the seller with the costs of defending the action as special damage caused by his breach of warranty (d). The buyer may, in some cases, after the discovery of a breach of warranty and offering the seller to return the chattel, if he refuses to take it back, charge against him as damage the expenses incurred in keeping the chattel for a reasonable time until it can be disposed of (e). (a) Street v. Blay, 2 B. & Ad. 456; Weston v. Downes, Doug. 23; Gompertz v. Denton, 1 C. & M. 207; see Adams v. Richards, 2 H. Bl. 573; Bannerman v. White, 10 C. B. N. S. 844; 31 L. J. C. P. 28; ante, p. 198, 428. (b) Caswell v. Coare, 1 Taunt. 566; Curtis v. Hannay, 3 Esp. 82; Clare (c) Clare v. Maynard, 6 A. & E. 519. (d) Lewis v. Peake, 7 Taunt. 153. Damages for breach tion of If the warranty is fraudulent, the defendant is responsible. for the consequences of the plaintiff acting upon the faith of the warranty; thus, where the defendant sold to the plaintiff a cow, and fraudulently warranted it to be sound, when he knew it to have an infectious disease, and the plaintiff placed it with other cows, which caught the disease and died, the plaintiff was held entitled to recover as damages the value of all the cows (a). Upon a contract for the sale and delivery of goods of a of warranty described quantity and quality, the seller is bound to deliver of descrip- goods answering to the description contracted for, which he goods. substantially warrants; the delivery of goods of an inferior description by the seller is a breach of the contract for which the buyer may maintain an action (b). If the buyer has refused to accept the inferior goods, which he may do, the measure of damages in such action is the value of goods of the description contracted for at the time appointed for delivery, irrespectively of the contract price, or the difference between that value and the contract price, accordingly as he has or has not paid the price. If the buyer has accepted the goods, the measure of damages is the difference between the value of goods of the description contracted for and the value of those actually delivered and accepted (c). If at the time of the sale the seller knew that the buyer was buying for the purpose of resale, he may also be liable for the special damage occasioned to the buyer by reason of his not being able to complete such resale through the inferiority of the goods delivered (d). Where the subject of the sale and warranty was seed-barley of a particular description, and the buyer resold it with a similar warranty, and consequently became liable to compensate the sub-purchasers for their loss in using the barley for seed as warranted, it was held that such liability was a consequence of the breach of warranty which the buyer might claim against the seller as damages (e). (a) Mullett v. Mason, 35 L. J. C. P. 299; L. Rep. 1 C. P. 559. (b) Wells v. Hopkins, 5 M. & W. 7; and see Dawson v. Collis, 10 C. B. 523; ante, p. 438. (c) Loder v. Kekule, 3 C. B. N. S. 128; 27 L. J.C. P.27; Dingle v. Hare, 7 C. B. N. S. 145; 29 L. J. C. P. 143. (d) See Dingle v. Hare, supra; and see ante, p. 572, (e) Randall v. Raper, E. B. & E. 84; 27 L. J. Q. B. 266. If the buyer, having accepted the goods, is sued for the price, he may show in reduction of damages the difference in value between the goods delivered and those contracted for, and diminish the price by that amount (a). If the buyer refuses the goods as not answering the description bought, he may recover the price previously paid as an implied debt for money received for his use (b). on contracts land. In an action by the purchaser of land against the vendor Damages for default in completing the purchase by reason of a defect for sale of in the title, the purchaser is entitled to recover as damages the costs of investigating the title and of endeavouring to procure a good title, including the expense of comparing deeds, of searching for judgments, and of journeys for that purpose (c); and it is sufficient if a liability for such costs has been incurred, though they have not been paid before the action (d), if such liability is properly charged in the declaration (e). He may also recover his deposit money and interest on the deposit money as special damage (ƒ). If the purchaser is unable to prove the, contract, as for want of a written memorandum to satisfy the Statute of Frauds, or if he treats the contract as void or rescinded, he can recover his deposit as an implied debt for money received to his use; but he cannot recover interest upon it in that form of action, nor can he recover the expenses he has incurred about the purchase (g). He cannot recover as damages expenses incurred by him in the negotiation of the contract or before the execution of it; nor the expense of a survey of the estate; nor the expense of a deed of conveyance prepared before ascertaining the state of the title (h); nor can he recover the costs of raising the purchase money in readiness for payment, nor interest upon it while lying idle (); but it (a) See ante, p. 589. (b) See ante, p. 60; and see Loder v. Kekule, 3 C. B. N. S. 128, 139. (c) Hodges v. Earl of Litchfield, 1 Bing. N. C. 492; Hanslip v. Padwick, 5 Ex. 615. (d) Richardson v. Chasen, 10 Q. B. 756. (e) 1b.; and see Pritchet v. Boevey, 1 C. & M. 775. (f) De Bernales v. Wood, 3 Camp. 258; Farquhar v. Farley, 7 Taunt. (g) Gosbellv. Archer, 2 A. & E. 500; (h) Hodges v. Earl of Litchfield, supra. (i) Hanslip v. Padwick, 5 Ex. 615; Sweetland v. Smith, 1 C. & M. 585; see Sherry v. Oke, 3 Dowl. 349. Damages seems that he may recover for the expenses incurred in prefor sale of paring, stamping, and entering into the agreement (a). on contracts land. Damages on cove nants for title. The purchaser cannot claim the costs of a Chancery suit brought by him against the vendor for specific performance, and dismissed for defect of title without costs (b); nor the extra costs of a Chancery suit brought against him by the defendant and dismissed with costs (c). The purchaser cannot claim damages for the loss of his bargain, where the vendor fails to complete by reason of a defect in his title, provided the vendor has acted bonâ fide and had reasonable ground for supposing that he had a good title (d). But where the vendor contracts to sell an estate, knowing at the time that he has no title, he is then liable to make good the loss of bargain (e). So also, if he fails to complete from any other cause than defect of title (f). The purchaser cannot recover as damages the profits which would have accrued to him from a resale of the property which he made before the title was discovered to be defective, nor the expenses of such resale, nor the expenses of the sub-purchaser for which he became liable (g). If the contract has been completed by an actual conveyance of the land sold, and the purchaser, having been evicted by a claimant with a better title, sues the vendor on the covenant for title contained in the deed of conveyance, the measure of the damages is the value of the estate; thus, in an action for a breach of the covenant for quiet possession contained in a lease, the lessee having been evicted, the measure of damage was held to be the value of the unexpired part of the term together with the amount recovered against the lessee by the evictor for mesne profits (h). So, where the plaintiff, being in possession of premises under a lease, obtained a new lease in reversion with a covenant for quiet (a) Hanslip v. Padwick, 5 Ex. 615. (b) Malden v. Fyson, 11 Q. B. 292. (c) Hodges v. Earl of Litchfield, 1 Bing. N. C. 492; see post, p. 597. (d) Flureau v. Thornhill, 2 W. Bl. 1078; Pounsett v. Fuller, 17 C. B. 660; 25 L. J. C. P. 145; Sikes v. Wild, 1 B. & S. 587; 30 L. J. Q. B. 325; 32 ib. 375. possession, and it turned out that the lessor had no power to grant such lease, and the plaintiff took another lease from the real owner on less favourable terms, the measure of damages was taken to be the difference of value between the two leases (a). Where an estate was sold and conveyed with a covenant that it was freehold, and it proved to be copyhold, the measure of damage for the breach of covenant was held to be the difference in value by reason of the difference in tenure (b). Where the defendant had conveyed land to the plaintiff and covenanted for a good title, and the plaintiff, being sued by a claimant under a better title, compromised the action for a sum of money, the plaintiff was held entitled to recover that sum and the costs of the action as damages for the breach of covenant (c). recoverable The costs of an action or other legal proceedings incurred Costs of acby the plaintiff in consequence of a breach of contract by tion, when the defendant may in some cases be recovered as special as damages. damage. The decision of the Court in which an action or suit is brought, as to the incidence of the costs, is final and cannot be questioned by the same parties in another action. Thus, the purchaser of land, having brought a suit for specific performance against the vendor which was dismissed for defect of title without costs, was held not entitled to recover his costs of suit as special damage in an action against the vendor for not making a good title, because the adjudication of the Court of Chancery that the costs should not be paid by the defendant, could not be disputed in another court (d). So, it was held that the plaintiff in an action for a breach of contract could not recover as special damage the extra costs beyond those taxed and paid to him in a suit in Chancery which had been brought against him by the defendant for specific performance of the contract and dismissed with costs, because the adjudication of the Court of Chancery was conclusive as to the amount to which he was entitled (e). (a) Lock v. Furze, 19 C. B. N. S. 96; 34 L. J. C. P. 201; 35 ib. 141; L. Rep. 1 C. P. 441. (b) Gray v. Briscoe, Noy. 142. (c) Smith v. Compton, 3 B. & Ad. |