Scottish Court of Session Decisions

Lord Stormonth Darling—The defender, a merchant in Denmark, contracted to supply the pursuers with a cargo of Danish hay and straw to be delivered in Aberdeen. It was disclosed by the pursuer at the time the contract was entered into, that he was buying for the purpose of resale, and that a re-sale had in fact been completed. The sub-purchaser, a merchant in Aberdeen, had in his turn resold the cargo to various customers in that neighbourhood. When the cargo arrived the sub-purchaser inspected it and found it disconform to contract, and it is not disputed that it was so. The only defence which is now put forward is that contained at the end of the third answer for the defender, and in his second plea-in-law, to the effect that the pursuer could at the time of delivery have bought in Scotland, and particularly at Leith or Grangemouth, Danish hay and straw at a price less than he had agreed to pay the defender. I am of opinion that this defence is not made out. It is clear in the first place, on the principle of Hadley v. Baxendale ( 9 Ex. 341), that the damage which the defender was bound to make good in the event of his breaking the contract, was such as might be held to have been in contemplation of the parties at the time of making the contract, and in this case the damage contemplated was the loss of profit on the re-sale. The defender says that there is an equitable limitation to this rule to the effect that the purchaser, before he can recover such loss of profit, must show that he has taken every means to supply himself with similar goods, and unless he does so he is barred from recovering. That may be the equitable rule where the goods are of a kind currently bought and sold in the open market at the time and place of delivery. If the purchaser can go into the market and supply himself with goods of the same quality and at a price not greater than that in the contract, then he would suffer no damage, for he would be able to fulfil his contract with the sub-purchaser. But the goods in question were of a very special kind; they were specially consigned from a foreign country, and it is the result of the evidence, in my opinion, that at Aberdeen, which was the port of delivery, there was not a market for these goods at the time at all. The defender had led evidence to show, that by hunting all over the country, the pursuers might have found out that there were small parcels of Danish hay and straw at Leith and other places, which he might have picked up by private treaty; but none of these parcels were on public offer at the time, or quoted in any public market list which was open to the pursuers' inspection. In these circumstances I think there was no duty on the purchaser to make extraordinary exertions to supply himself with goods elsewhere. This is the ground on which I decide the case, but I am by no means satisfied on the proof that it could have been possible for the pursuer, even if it had been his duty, to obtain the goods at a cost less or no greater than the prices he had agreed to pay the defender. There is some evidence to show that he could have got these goods at a price very little greater than the contract price, but this evidence is offered ex post facto, and it

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