David & Co. V. Seneviratne Et Al

1946  Present: Howard C. J. and de Silva J.

DAVID & CO., Appellant, and SENEVIRATNE et al.,
Respondents.

217- D . C. Negombo, 13, 031.

Damages ? Breach of contract- Special loss, to be recoverable, should be matter of express terms.

Upon a breach of contract any loss resulting from special circumstances can be recovered only if the special circumstances were communicated at the time of the contract to the party from whom it is afterwards sought to recover damages.

Semble, that the rule as to the remoteness of damage is the same whether the damages are claimed in actions of contract or tort.

APPEAL from a judgment of the District Judge of Negombo. Certain parts of an oil engine were entrusted by the defendants to the plaintiff to effect repairs. The plaintiff was not at the time informed whether these part were part of an engine in use. Nor was any date given for the completion of the work although later he was informed that the engine was required for working on a particular day. Further, the plaintiff was not informed of any special loss that would be incurred by the defendants if the engine was not repaired by a particular date. When the plaintiff sued the defendants of the cost of repairs the trial Judge dismissed his claim and, as regards the claim in reconvention made by the defendants, awarded the defendants a sum of Rs. 1,500 as damages on the ground that, owing to the plaintiff?s bad work and delay, the defendants could not work their mills. One of the grounds of appeal was that the learned District Judge was wrong in awarding the sum of Rs. 1,500 as damages as they were too remote.

L. A. Rajapakse, K. C. (with him J. M. Jayamanne and T. B. Dissanayake), for the plaintiff, appellant.- The claim of the defendants in reconvention is for a beach of the contract to repair the parts of the oil engine. Damages for such breach should be the ordinary and natural result of the breach, viz, the addition expenditure incurred by him in getting the engine repaired by a competent third party. Only intrinsic damages or the direct pecuniary loss which the breach entails will be allowed- Maasdorp's Institutes of S. African Law, Vol. 3, p. 171 (4th ed.); Pothier?s obligation p. 91 (Vol. 1, ch.2, Art. 3).
   
The claim of Rs. 1,500 for loss of profit for the non-user of the engine is remote damages. Such damages, as they were the result of special circumstances which were not communicated to the plaintiff at the time of the contract, cannot be awarded?Hadley v. Baxendale  1; 10 Hailsham pp.97-98, 103-104; Nathan?s Law of Damages in S. Africa (1930 ed.), pp. 23-24.

Moreover, the defendants have not proved that they had any contracts or work to do and that they incurred loss by not performing them. See Sunley & Co. v. Cunard White Star, Ltd 2.

Foot notes

1   (1854) 9 Exch. 341.
2   L.R.(939) 2 K. B. 791.

N.Nadarajah, K. C. (with him S. E. J. Fernando), for the defendants, respondents.- The defendants? claim in reconvention is based rather on tort that on contract. Hadley v. Baxendale (supra) applies to breach of contract only. Sometimes the dividing line between contract and tort is very fine. In the case of a trot all damages directly flowing from the act complained of may be claimed. In the case of H. M. S. London [1  L. R. 1914 P. D 72.] compensation was given for the loss of the use of he vessel during the whole period of delay caused by a strike of the workmen, inasmuch as the loss was ?directly and immediately due to the defendant?s negligence?.
   
Assuming the cause of action to be based on a breach of contract, Hadley v. Baxendale can be distinguished on the ground that the special circumstance in the present case were communicated by the defendants to the plaintiff.

L. A. Rajapakse, K. C., replied.

Cur. adv. vult.

February 21, 1946. HOWARD C.J.-
   
In this case the plaintiff claimed a sum of Rs. 750, the cost of certain repairs

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