Mondel v Steel
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1841 |
| Date | 01 January 1841 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 1288
EXCH. OF PLEAS.
S. C. 6 Dowl. (N. S.) 1; 10 L. J. Ex. 426. Referred to, Heyworth v. Hutchinson, 1867, L. R. 2 Q. B. 451; Davis v. Hedges, 1871, L. R. 6 Q. B. 689; Towerson v. Aspatria, etc., Society, 1873, 27 L. T. 276.
. f43|./A.-3/tf. [858] mondel v. steel. Exch. of Pleas. 1841.-Special assumpsit on a contract to build a ship according to a specification, assigning a breach in not building the ship with scantling, fastening, and planking, according to the specification, and alleging special damage. Plea, that the defendant had sued the plaintiff' for the balance of the agreed price of the ship, after payment of £3500, and also for a sum of £150 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 now plaintiff'gave evidence in his defence of the same breach of contract alleged in the declaration, and insisted, if the amount of compensation to which he was entitled exceeded or equalled the balance and value of the extra work, that he the now plaintiff was entitled to a verdict; if less, then he was entitled to a deduction, upon the amount of both, to the extent of such amount of compensation : that the Judge who tried the cause so directed the jury, and the jury found that the now defendant had committed a breach of the contract, and that the now plaintiff was entitled to some compensation, which they deducted from the price of the ship and the value of the extra work : that the now defendant had judgment for the amount, after such deduction had been made, since the commencement of this suit:-Held, that the plea was bad on general demurrer.- Held, also, that all that the plaintiff could by law be allowed in diminution of damages on the former trial, was a deduction from the agreed price, according : to the difference between the ship as she was at the time of delivery, and what she ought to have been according to the contract: but that any claim for damages on account of the subsequent necessity for repairs could not be allowed in the former action, and might be recovered in this.-In all actions for goods sold and delivered with a warranty, or for work and labour, as well as in actions for ; goods agreed to be supplied according to a contract, it is competent for the defendant to shew how much leas the subject-matter of the action was worth by reason of the breach of the contract: and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satisfaction for the breach of contract; and he is precluded from recovering in another action to that extent, but no more. [S.'C. 6 Dowl. (N. S.) 1 ; 10 L. J. Ex. 426. Eeferred to, Heywarth v. Hutchinson, 1867, L. R, 2 Q. B. 451; Davis v. Hedges, 1871, L. E. 6 Q. B. G89; Tmwrson v. Aspatria, etc., Society, 1873, 27 L. T. 276.] Special assumpsit on a contract to build a ship for the plaintiff, at a certain rate per1 ton, and according to a certain specification (setting it out); and the breach assigned was, for not building the ship with scantling, fastening, and planking, according to the specification; by reason whereof the ship, in a certain voyage, was so much strained that it became necessary to refasten and repair her; and thereby thef plaintiff lost the use of her during the time she was undergoing such repairs. 'Plea, that the plaintiff ought not further to maintain his said action in respect of the-said alleged breach of contract in the declaration mentioned, because the defendant says that he the defendant, heretofore, to wit, on &c., before the Barons of her Majesty's Court of Exchequer at Westminster, in the county of Middlesex, irapleaded the plaintiff in an action on promises, and by the said action sought to recover from the plaintiff, over and above a sum of 21. 4s. 9Jd. hereinafter mentioned, the sum of 861. 6s. 4d., being the balance of the price of the said ship in the said declaration mentioned, calculated according to the provisions and terms of the said memorandum of agreement [859] therein also mentioned, and which remained unpaid to him the now defendant, after the payment by the now plaintiff to him of the sum of 31. 5s., in the said declaration also mentioned, and after credit being given to the now plaintiff for two other sums hereinafter mentioned ; and also to recover from the now plaintiff the further suni of 1341. 3s. 2d., being the value of certain work, labour, and materials done and provided for the now plaintiff by the now defendant in and about the said ship, and M.&W.880. MONDEL V. STEEL 1289 which were extra of and in addition to the work, labour, and materials mentioned and included in the said memorandum of agreement. [The plea then set out the whole of the pleadings in that action, which was inrlebitatus assumpsit in £4000, for work and materials, goods sold and delivered, and on an account stated:-pleas, 1st, except as to '21. 4s. 9jd., parcel &c., non assumpsit ; 2nclly, as to the '21. 4s. 9id., payment into Court of that sum, which the now defendant accepted ; 3rdly, except as to 21. 4s. Bjd., payment, which was denied by the replication ; 4thly, except as to 21. 4s. 9£d., a sot-off for work and materials, goods sold and delivered, money paid, and on an account stated. The plea then proceeded as follows :]-And the defendant further saith, that all the said issues were duly joined between him the now defendant, and the now plaintiff, and afterwards, to wit, at the General Sessions of Assize holden at Liverpool, in and for the southern division of the county palatine of Lancaster, on &c., before Sir William Henry Maule, Knight, one of the Justices of our Lady the Queen of her Court of Common Pleas at Westminster, and Sir Robert Mounsey Rolfe, Knight, one of the Harons of our said Lady the Queen of her Court of Exchequer at Westminster, Justices of our said Lady the Queen of her Court of Common Pleas of the said county palatine, the said issues so as aforesaid joined came on in due and regular form of law, to be tiled before the said Sir Robert Mounsey Rolfe, and the same [860] were then tried in due course of law, by a jury of the county duly summoned, chosen, and sworn in that behalf, between the now defendant and the now plaintiff. And the defendant further says, that at the said trial he, the now defendant, duly proved and gave in evidence...
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