Ausman and defendant, whereby said Henry Ausman agreed to sell to defendant all his estate, right, title and interest of and in lot No. 10, 3rd con. Markham, and to allow defendant to purchase the same at sheriff's sale this day, in consideration of said defendant paying the amount due upon the judgments against the said Henry Ausman, now in the hands of the sheriff of the Home District, and for which the same is about being sold, and upon the title being completed the said defendant to secure to the said Henry Ausman £50 annually during the life of the said Henry Ausman. The amount that may be received for the purchase money due by Ausman to one John W. Myers, and to be paid by him for the benefit of the heirs of John McClusky, if any there be, should be deducted from the annuity aforesaid. In consideration aforesaid, the said defendant agreed to purchase the said land at sheriff's sale this day, and to pay the said annuity to Henry Ausman, from and after the completion of the title by a decree of the Court of Chancery, and to secure the payment of the said annuity on good real security. Signed by Henry Ausman and defendant.

At the trial, variance was objected; the plaintiff stating in the first count of the declaration that defendant promised and agreed with said Henry Ausman, deceased, to pay to him for and during his natural life, to wit, in order to provide maintenance and sustenance for him, the sum of £50 annually-that is to say, in and for each and every year during the lifetime of the said Henry Ausman, now deceased; and a proportionate part of the said annuity to the personal representatives of the said Henry Ausman, on his death, in proportion to that part of the year which should have elapsed at the death of the said Henry Ausman, and to secure the same to him upon good real security, &c.

That the said Ausman died the 12th March, 1855, and that £41.13s. 4d. is due. The annuity alleged to commence on the 12th May, 1847.

Verdict for plaintiff.

During this term, Jones, J. R., obtained a rule to set aside the verdict for plaintiff and enter it for defendant, on the ground that the annuity was not liable to be apportioned,

and therefore plaintiff not entitled to recover, and on the ground of variance.

Cameron, H., shewed cause during the same term. Reference was made to Howell v. Hanforth, 2 W. B. 1016; Hay v. Palmer, 2 Vernon 501; Shepperd v. Wilson, 4 Hare, 395; Reynish v. Martin, 3 Atk. 331.

MACAULAY, C. J., delivered the judgment of the court. Assuming that the English statutes on the subject of the granting annuities as they existed, when the law of England was adopted in Upper Canada, I find no authority for a court of law apportioning this annuity, either at common law or by statute, imperial or provincial. I see no alternative, therefore, but to make the rule absolute on both grounds, and to enter the verdict for the defendant for a nonsuit. The cases cited-Howell v. Hanforth (2 W. B. 1016), Hay v. Palmer (2 Vernon 501), Reynish v. Martin (3 Atk. 331–6); do not seem to go the length contended for by the plaintiff's counsel. Queen Adelaide's case (16 Q. B. 357) is quite in point; Trimmer v. Danby (23 L. J. Ch. 979), Kindersley V. C.;-In Re Longworth (23 L. J. Ch. 104), Wood, V. C.; Beer v. Beer (12 C. B. 60.)

Per Cur.-Rule absolute.

WATROUS V. BATES ET AL.

AND

WATROUS V. BATES AND SIMPSON.

Damages-Measure of.

Plaintiff having contracted with Sykes & Co., to furnish railway ties, of which defendants had notice, afterwards entered into a sub-contract with defendants, whereby defendants agreed to furnish plaintiff with a certain quantity of ties at elevenpence per tie. In an action for breach of such sub-contract:

Held, that the measure of damages was the difference in value upon each tie between what plaintiff was to pay defendants, and what he was to receive from S. & Co.

Writ issued 24th August, 1854.

DECLARATION.-First count states that on the 7th January, 1854, the plaintiff contracted with Sykes De Bergue & Co., to deliver along the line of the Brockville and Ottawa Railway 120,000 railway ties, of which defendants had notice;

that afterwards an agreement was made between the plaintiff and defendants, for defendants to deliver along the line of said railway 75,504 ties, nine feet in length, and flatted on two opposite sides, &c.; to be made of tamarac, oak, elm, ash, or hemlock, &c.; to be delivered 2112 every mile, between Irish Creek and Carleton Place, and between Smith's Falls and Perth, at the places where the line of railway intersected the concession lines, or at such convenient places as the engineer or agent might point out, &c.; to be delivered before the first of May, 1854; elevenpence to be paid for each tie delivered, in monthly payments, plaintiff to hold twenty per cent. in reserve. In default of performance, plaintiff to be at liberty to take the work into his own hands, &c.; disputes to be decided by engineer or agent, or, at plaintiff's option, by

arbitration.

Plaintiff avers his readiness, &c., and assigns for breach that defendants did not deliver the said ties, whereby plaintiff was unable to keep his contract with Sykes & Co., and whereby an action accrued against him, and he sustained other damage and loss.

Second count, similar, setting out the agreement in form. Third count, similar, and denying the delivery of the ties.

Pleas to each count separately:-Non est factum—fraud— and performance.

At the trial, it appeared that the railway company had advertised for tenders for ties, and that on the 28th December, 1853, plaintiff addressed a letter to R. Harvey, secretary of the Brockville and Ottawa Railway, Brockville, stating that his tender thereto annexed, to furnish all the ties required for the Brockville and Ottawa Railway, from Brockville to Carleton Place having been accepted, he thereby bound himself, his heirs and executors to Messrs. Sykes, De Bergue & Co., that he would execute the contract, when drawn up by their solicitor, and also procure the signatures of George Crawford, Esq., and of Messrs. Coleman & Co., as his sureties for the due fulfilment of said contract.

The tender was as follows:

"Tenders for ties required by the Brockville and Ottawa

Railway Company on the improved plan. I will furnish the whole of the ties required by the Brockville and Ottawa Railway Company, being those advertised for, and forty thousand additional, at the rate of one shilling and two-penco per tie: less on the whole amount five pounds. Sureties, George Crawford, Esq., and R. Coleman & Co.

Signed by the plaintiff. "To Robert Harvey, Esq., Secretary of the Brockville and Ottawa Railway Company, Brockville.

"Brockville, 27th December, 1853."

On the 7th January, 1854, the agreement declared on was executed between the plaintiff and defendants.

On the 6th of February, 1854, a formal contract under seal was executed, between the plaintiff and Sykes & Co., to deliver one hundred and twenty thousand ties by the 1st July, 1854, at one shilling and two-pence each tie. Monthly payments from the first of March, 1854, retaining twenty per cent. until it equalled one-tenth of the price of the whole, &c.

The defendants failed entirely in delivering ties to plaintiff; but afterwards, repudiating the contract with plaintiff, delivered a like quantity to Sykes & Co., at one shilling and two-pence per tie.

On the 3rd of May, 1854, plaintiff served a written notice on defendants, demanding performance.

The defence of fraud failed, and the case at the end turned upon the rule by which the plaintiff was entitled to damages.

In mitigation thereof, it was urged that Sykes & Co. had failed in business, and had not paid the defendant Bates for what he had delivered, and could not have paid the plaintiff had the ties been delivered by Bates to plaintiff, and by him to Sykes & Co.

On the other hand the plaintiff claimed the difference between the two contracts, being three-pence on each tie. The defendants contended against that, and that at all events the plaintiff was only entitled to the difference in value between the contract price of eleven-pence and the market or real value of the ties, at the time appointed for their delivery, if more than eleven-pence, and that it was not shown that such

value exceeded eleven-pence, or equalled one shilling and two-pence.

The jury found for the plaintiff, with £400 damages.

During this term, Sherwood, for defendants, obtained a rule on plaintiff to set aside such verdict, on the grounds of-First, misdirection. Second, variance between the contract proved and that stated in the inducement, (that is, between plaintiff and Sykes & Co.) Third, that the contract as stated afforded no data as to damages. Fourth, no proof of market value. Fifth, or of loss or damage to plaintiff. Sixth, that Sykes & Co.'s failure and its consequences was evidence in mitigation of damage. Seventh, that the difference between elevenpence and the actual value at the day was the only and highest test plaintiff could be entitled to.

A. Richards shewed cause during the same term.

RICHARDS, J., delivered the judgment of the Court:

The question to be considered is, did the learned Chief Justice of this court misdirect the jury in telling them that the measure of the plaintiff's damage was the difference between what he was to pay the defendant Bates for the ties and the price Messrs. Sykes, DeBergue & Co. had agreed to pay the plaintiff for the same ties. The agreement between the parties having been entered into after the proposal of the plaintiff to furnish the ties to Sykes, DeBergue & Co. had been accepted, and for the purpose of carrying out the arrangement made with them (although the agreement between the plaintiff and Sykes, DeBergue & Co. was not actually signed at the time the contract declared upon was, it was afterwards, according to the previous proposal and tender) and the defendants undoubtedly knew the ties were to be furnished to the plaintiff to enable him to carry out that agreement with Sykes, DeBergue & Co. The question then is, was the difference between what the plaintiff was to receive for the ties, and what the defendant Bates was to get for them, the fair measure of damages which flowed from the breach of the defendants' contract. It appears to me it was.

It is stated as a general rule, that profits that may be made on the article contracted to be delivered are too remote VOL. V.

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