ページの画像
PDF
ePub

Church vs. Abell.

The fitting deduction from the language used and principles laid down in the cases of Mondel v. Steel and Davis v. Hedges, to quote again from the judgment of Mr. Justice Moss, is to hold that when the purchaser brings his action upon the warranty before making payment, and I should add to this when the payment is due, he shall be restricted to the recovery of any special damages he has sustained and shall not be permitted to recover for inferiority of value, for the simple reason that if he is afterwards sued for the price, the law affords him full protection by enabling him to assert this inferiority as a ground of defence.

The only decided case to which we have been referred, that is against this view, is that of Barker v. Cleveland reported in 19 Michigan Reports 237-8. We are not bound by that decision, though pronounced by a distinguished Judge, but I think, looking at the decided cases in the English Courts and the reasons for the same, the conclusion at which we have arrived is the correct one.

The acting on it, will be more convenient and more likely to do justice between the parties than any other. The leading principles were settled when the right to shew the diminished value of the article in diminution of the price and having done so to sue for the special damage was established. The only objection to extending the same rule when the action is first brought by the purchaser of the article instead of the seller, is the technical one that you must recover all your damages in that action and not separate them. The argument of convenience was allowed in Mondel v. Steel to prevail to establish the rule that the damages having been separated by the diminished value being set up in the first action, the rest of the damages, viz: the special damages, could be recovered in the last. Our decision

Church vs. Abell.

is merely the converse of that, and based on the same principles of convenience and justice, viz: that not having paid the price, the same being due, the purchaser should only recover his special damages if his be the first action, and shew the diminished value when called on to pay the price.

Our judgment therefore is, that this appeal be allowed. That the order and judgment of the Court of Error and Appeal for the Province of Ontario, be reversed and set aside with costs. That the rule absolute in the Court below, the Common Pleas, setting aside the verdict and granting a new trial between the parties without costs, shall stand; and that the Plaintiff in the said suit, do pay the costs of the appeal to the said Court of Error and Appeal and to this Court.

RITCHIE, J. :—

The question to be decided in this case is of very considerable practical importance, viz: whether we are constrained by general principles or the weight of authority to enunciate a technical rule fraught with consequences so inconvenient and unreasonable as those so clearly and forcibly pointed out in this Court by the Chief Justice, and by Mr. Justice Moss in the Appeal Court of Ontario; or whether we can recognize and promulgate as law, a rule, which, while doing full and ample justice to all parties, is calculated to prevent unnecessary litigation, and that circuity of action which it is always the policy of the law as far as possible to avoid. I am happy to say that, in view of the principles established and acted on in Mondel v. Steel and Davis v. Hedges, I have been able, satisfactorily to myself, to come to the same conclusion at which the

Church vs. Abell.

Chief Justice has arrived, and, after the elaborate judgment he has delivered, I do not feel it necessary to occupy more time.

STRONG, J.:

The decision of this Appeal depends altogether on the proper answer to the question whether the Appellant, a vendee of chattels purchased with a warranty for cash, who had not paid the price, could, in an action formerly brought by him for breach of the warranty, have recovered general as distinguished from special and consequential damages.

If the Appellant could have recovered his general damages, the measure of which consisted of the difference between the actual value of the article sold and what would have been its value if it had been equal to the warranty, then it is not disputed but that the former judgment estopped the Appellant from insisting in the present action on recoupment or reduction of the price on the ground of breach of warranty. That a judgment constitutes res judicata as to anything which might have been recovered in the action is, if any authority is wanted for so elementary a proposition, clearly stated to be the law in the three cases of Gibbs v. Crookshank (1), Henderson v. Henderson (2), and Davis v. Hedges (3); which may be selected from a great number of authorities as clearly and succintly defining this well-known rule. The extent to which this defence prevails is only limited by the maxim: Tantum judicatum quantum litigatum; and everything is considered to have been in litigation which could have been made the subject

(1) L. R. 8 C. P., 454; (2) 3 Hare, 100; (3) L. R. 6 Q. B., 687.

Church vs. Abell.

of a claim under the Plaintiff's declaration. It is, however, said, and it forms the principle of decision in the present appeal, that the general ordinary damages, which a purchaser is entitled to recover in respect of a breach of warranty as to quality, which are measured according to a well-settled rule, and with the calculation of which the contract price has nothing whatever to do (1), are not recoverable so long as the price is due and remains unpaid, and that, consequently, the judgment recovered is only an estoppel as regards the recovery of the special damages, though it is conceded, that if the price had been paid, or if, though unpaid, payment had been deferred for an unexpired term of credit, a contrary rule must have prevailed and the former judgment would have been a bar to the reduction of damages which the Appellant claimed at the trial.

As all depends on the fact of the purchase money having been due at the date of the former action, I would call attention to the absence of any evidence shewing that the Appellant was in default for non-payment at the time the action was brought. Granting, however, that the Appellant is now entitled to say that his own default is to be presumed in his favour and against the Respondent, and that the sale must be assumed to have been for cash, although there is no evidence on that point, I am still of opinion, that the law is in the Respondent's favour, and that it was correctly enunciated in the ruling at nisi prius, and in the judgments of Mr. Justice Burton and Mr. Justice Patterson, in the Court below.

There is no direct English authority to be found on the question involved, at which I cannot express (1) Mayne on damages, p. 130 and cases there cited.

Church vs. Abell.

surprise, but an American case (1), decided by Judges of very high professional reputation, is a decision on similar facts exactly coinciding with the opinions of the majority of the Judges of the Court below. All question as to the conclusiveness of the former judgment in the action on the warranty, as regards both general and special damages, would, if the purchaser had then been in no default in payment, be, in effect, precluded by the case of Davis v. Hedges (2).

The law is also stated in the same way in a text book of established repute (3).

The rule of law, which is now for the first time propounded, and which is to govern the decision of this appeal, must, therefore, in the absence of any reported case directly establishing it, be derived by inference and analogy from cases which are supposed to warrant its deduction. I have been unable to draw any but an opposite conclusion from those authori

ties.

The warranty, being a contract entirely collateral to the principal contract of sale, the remedy of the vendee for a breach of it was originally restricted to an action, the right to bring which was in no way dependent on the payment of the price; and a recovery in such an action must, on general principles already referred to, have been held to include all the damages, as well general as special, arising from the same cause of action.

After the case of Basten v. Butter (4), however, a practice was sanctioned, by which the Defendant, in an action for the price, was permitted to set up the breach of warranty in mitigation of damages, and

(1) Barker v. Cleveland, 10 Mich., 230; (2) L. R. 6 Q. B., 687; (3) Mayne on damages, p. 131; (4) 7 East, 479.

« 前へ次へ »