Smeed v Foord
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1859 |
| Date | 31 January 1859 |
| Court | Court of the Queen's Bench |
English Reports Citation: 120 E.R. 1035
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 28 L. J. Q. B. 178; 5 Jur. N. S. 291; 7 W. R. 266. Approved, collard v. South Eastern Railway, 1861, 7 H. & N. 86; Boyd v. Fitt, 1863, 14 Ir. C. L. R. 56. Referred to, Wilson v. Newport Dock Company, 1886, L. R. 1 Ex. 185; The Parana, 1877, 2 P. D. 122.
[602] smeed against fooed. Monday, January 31st, 1859. Defendant contracted to deliver to plaintiff, a farmer, a threshing machine, within three weeks. It was plaintiffs practice, known to defendant, to thresh wheat in the field, and send it thence direct to market. At the end of the three weeks, plaintiff's wheat was ready, in the field, for threshing; and, on plaintiff's remonstrating at the delay in the delivery of the machine, defendant several times assured him it should be sent forthwith. Plaintiff having unsuccessfully tried to hire another machine, was obliged to carry home and stack the wheat; which, while so stacked, was damaged by rain. The machine was afterwards delivered to plaintiff, who paid defendant the contract price. The wheat was then threahed: and it was found necessary, owing to its deterioration by the rain, to kiln-dry it. When dried and sent to market, it sold for a less price than it would have fetched had it been threshed at the time fixed by the contract for the delivery of the machine, and then sold, the market price of wheat having meanwhile fallen.-Held in an action for the non-delivery of the machine, that plaintiff was entitled to recover substantial damages in respect of the expence of stacking the wheat; of loss arising from its deterioration by the rain ; and of the expence of drying it in the kiln.-Held, further, that he was not entitled to recover any damages in respect of the fall in the market price of wheat. [S. C. 28 L. J. Q. B. 178 ; 5 Jur. N. S. 291 ; 7 W. E. 266. Approved, Oottard v. South Eastern Railway, 1861, 7 H. & N. 86 ; Boyd v. Fitt, 1863, 14 Ir. C. L. E. 56. Referred to, Wilson v. Newport Dock Company, 1866, L. E. 1 Ex. 185; The, Parana, 1877, 2 P. D. 122.] The declaration alleged that plaintiff agreed to buy of defendant, and defendant agreed to sell and deliver to plaintiff within a certain agreed time, a certain engine 1036 SMEED V. FOORD 1 EL. & EL. 603. and machine, at a certain agreed price. Averment, that all things bad happened, &c. to entitle plaintiff to sue defendant for breach of the said agreement thereafter mentioned : yet that, although plaintiff was always ready and willing to accept the said engine and machine, and to pay for the same at the agreed price, defendant wholly neglected and refused to deliver the said engine and machine to plaintiff within the time agreed on, whereby plaintiff was unable to thresh certain of his wheat, and in consequence thereof the same became damaged and spoilt, and of less value to plaintiff, and plaintiff was unable to sell the said wheat as soon as he would otherwise have done, or for so large a sum of money as he otherwise would have done. Pleas: 1. That defendant did not agree as alleged. Issue thereon. 2. That defendant did, within the said time agreed in that behalf, deliver the said engine and machine to plaintiff. Issue thereon. [603] At the trial, before Crompton J., at the Middlesex Sittings for last Michaelmas Term, it appeared that the plaintiff was a farmer, carrying on business at Sittingbourne, in Kent, and the defendant was a farmer living at Lenham, in the same county. In July, 1856, the plaintiff, being in want of a threshing machine to thresh out his wheat, caused the following letter to be written to the defendant. "17th July, 1856. "Mr. Smeed wishes to know the price of a threshing machine, seven or eight horse power engine, and complete with all new improvements attached, and how soon it could be had. An early reply will oblige. "For george smeed, "J. H. bradley." The defendant sent the following reply. "19th July, 1856. "In reply to your favour of the 17th inst., in reference to an engine and machine, I beg to state the prices below." (Here followed a statement of prices.) " The above machine finishes the corn for market, and also makes a separation of the tail. Could let you have one in a mouth from the date of order. "GEORGE foord." On the same day, the plaintiff sent an answer as follows. " 24th July, 1856. " Mr. Smeed will take a seven-horse engine and combined threshing machine with the latest improvements, provided you can let him have it in three weeks from this date, or he will be forced to hire as before. "Pro george smeed, "J. H. bradley." [604] To this the defendant replied. "28th July, 1856. " I am in receipt of your order for a seven-horse engine and machine, which shall have my best attention, and be forwarded by the time you state. " george foord." The plaintiff's wheat was ready for threshing in the field on 14th August, 1856, the day on which the engine and machine should have been delivered in pursuance of the contract contained in the last two of the above letters. It was the plaintiff's practice, as was well known to the defendant, from previous dealings with him, to thresh his wheat in the field, and send it off thence straight to market, instead of carrying it home and there stacking and threshing it. The engine and machine did not arrive on 14th August; and was not delivered at the plaintiff's farm till 14th September. Between 14th August and 3d September the plaintiff twice saw the defendant, and complained of the delay in delivering it; and the defendant, on each occasion, promised that it should be sent at once. During this same...
To continue reading
Request your trial
-
Czarnikow Ltd v Koufos (Heron II)
...to result" or "likely to result" or "not unlikely to result". Each one of these phrases may be of help but so may many others. 50 In Smeed v. Foord in 1859, 1 El. & El. 602, Compton, J. referred in his judgment (at page 616) to the doctrine of Hadley v. Baxendale, and said: "The second bran......
-
Athol v The Midland Great Western of Ireland Railway Company
...18 C. B. N. S. 445. Hadley v. BaxendaleENRUNK 9 Ex. 341; 23 L. J. Ex. 179. Boyd v. FittUNK 14 Ir. C. L. R. 43. Smead v. FoordENRUNK 1 E. & E. 602; 28 L. J. Q. B. 178. Gee v. Lancashire and Yorkshire Railway CompanyENRUNK 6 H. & N. 211; 30 L. J. Ex. 11. Randall v. RaperENRUNK E. B. & E. 84; ......
-
Lavery & Co Ltd v Jungheinrich
...by the English Courts, as will appear from Borradaile v Brunton (8 Taunt. 535), Hadley v Baxendale (supra), Smeed v Ford (1 E and E. 602; 120 E.R. 1035) and other cases. "In cases involving ordinary dam age no discussion is ever indulged as to whether that damage was contemplated or not. Th......
-
Victoria Falls & Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd
...elsewhere. See Dunkirk Colliery Co. v Lever (9 Ch. D at p. 25); Mayne on Damages (9th ed., p. 57); Smeed v Ford (1 E and E. 602, 120 Eng. Rep. 1035); Corday and Others v Thames Ironworks (L.R., 3 Q.B. 181); Connersville Wagon Co. v Macfarlane Carriage Co. (3 Lawy. Rep. Ann. N.S. 709); Morri......