JUDGMENTBY: THOMSON CJ, HILL JA, GOOD JA

THOMSON CJ I have had the advantage of reading the judgment of Hill J.A. I agree with what he says and wish to add a few words only of my own.

On the evidence I do not think there is the slightest room for doubt that what the respondents agreed to sell and what the appellants agreed to buy was shovels the metal portion of which was of and bore the "Spatenmann" brand. What was supplied was shovels the metal portion of which was of another brand and there was thereby a breach of contract.

In the circumstances it was for the purchaser to make his election. He could repudiate the contract, refuse to accept delivery, and sue for damages, or he could accept delivery and sue for damages as for breach of warranty. He elected to follow the second of these courses.

The measure of damages in such a case is normally the difference, if any, between the market value of the goods supplied and the market value of the goods ordered, both values being taken as at the date of delivery. This is not because of anything contained in sub-section (3) of section 53 of the Sale of Goods Act, 1893, for there is no corresponding sub-section in section 59 of our Sal