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Decisions of the Superior Courts of New South Wales, 1788-1899

Girard v. Dalton [1838] NSWSupC 28

damages, expectation

Supreme Court of New South Wales

Dowling C.J., 23 March 1838

Source: Australian, 27 March 1838[ 1]

Girard v. Dalton. - This was an action for breach of contract.  The defendant by a written memorandum, dated 2nd August last, had agreed to sell the plaintiff a small cutter, called the Resolution, which traded to the McLeay River, for a consideration of 90,000 feet of marketable cedar, to be delivered in three months.  The plaintiff having been arrested some time after, and the defendant coming to the knowledge of it, he refused to deliver up the vessel without security, saying that he had been advised to that step.  The plaintiff alleged special damage, and proved that in the five trips he had made since the time she was to have been delivered up to him, she might have cleared by freight, after deducting all charges, £178 10s 0d, but that if she had made seven trips as she might have done, the amount ought to be £267.  The defendant attempted to prove a waiver of the bargain by the plaintiff, but he failed in doing so.  The learned Judge advised the jury not to award speculative damages, but to consider what fair and equitable remuneration the plaintiff was entitled to for the breach of contract.  The jury returned a verdict for the plaintiff; damages £100.  His Honor certified for a Special Jury, and two Counsel, the plaintiff having been driven to that course by the other side choosing a Common Jury.  Counsel for the plaintiff, the Attorney-General, and Mr a'Beckett.  For the defendant, Mr Broadhurst.  This closed the Special Jury cases for the term, and the Jurors were discharged with the thanks of the country.

 

Notes

[ 1]See also Sydney Herald, 26 March 1838; Sydney Gazette, 29 March 1838; Dowling, Proceedings of the Supreme Court, Vol. 149, State Records of New South Wales, 2/3334, p. 1.  In the latter, Dowling merely stated on damages: ``What damages - not to be speculative."

Published by the Division of Law, Macquarie University