Judgment. The late case of Galer v. Rawson, 6 Times L. R. 17, is HAGARTY very clear as to holding parties to the course taken by them at the trial. C.J.O. Appeal allowed with costs. Statement. MANDIA V. MCMAHON. Damages--Measure of — Contract for supply of labourers. The defendant, who was a contractor for certain work in this Province, entered into an agreement with the plaintiffs that if they would go to New York, at their own expense, and procure about 200 labourers, he would give them work at $1.25 a day. The plaintiffs brought the labourers but the defendant refused to employ them. The plaintiffs were allowed as damages for the breach of the agreement, $25 their expenses in going to and returning from New York, and $700 the amount of advances made by them in paying the fares of certain of the labourers from New York. They were not allowed commission that would have been received by them from the men if employment had been furnished. Judgment of the Queen's Bench Division affirmed. THIS was an appeal by the defendant and a crossappeal by the plaintiffs from the judgment of the Queen's Bench Division. The plaintiffs were Italian foremen, residing at Niagara Falls, and the defendant was a contractor for certain work on the Grand Trunk Railway, having his chief place of business at Lancaster. In May, 1888, the plaintiffs, having under their control a large number of Italian labourers, entered into a contract with the defendant to supply him with about two hundred men, he agreeing, as they alleged, to furnish work for these men at $1.25 a day. The plaintiffs then went to New York and brought to Lancaster one hundred and sixty-five men, the agreement with the men being that each man was to pay to the plaintiffs $1.00 commission, and to repay any money advances made by the plaintiffs for the purpose of bringing him to the place where work was to be had out of the wages received on the first pay day. The plaintiffs advanced to certain of Statement. the men in part payment of their railway fares and expenses from New York to Lancaster, $700, and they paid for their own expenses in going to New York and returning therefrom $25.00. The defendant refused to furnish work for the men when they arrived at Lancaster, and the plaintiffs thereupon brought this action to recover damages. The action was tried at the Cornwall Autumn Assizes of 1888, before ROSE, J., and a jury. The jury found the facts to be as alleged by the plaintiffs, and judgment was given in their favour for $206.25, the amount of one day's pay of the men supplied. The plaintiffs moved by way of appeal from this judgment, asking that instead of being allowed one day's pay, they should be allowed the amount of their expenses and advances, and $165 for commission. A cross-motion was made by the defendant to enter judgment for him on the ground that no agreement to furnish work was in fact ́ever made, or for a new trial on the ground that the damages were excessive. The defendant's motion was dismissed with costs, and the plaintiffs' motion was in part granted, the damages being increased to $725, the amount of expenses and advances. An appeal by the defendant and a cross-appeal by the plaintiffs from this judgment came on to be heard before this Court (HAGARTY, C.J.O., BURTON, OSLER, and MACLENNAN, JJ. A.) on the 28th of November, 1889. McCarthy, Q. C., and Aylesworth, for the defendant. The plaintiffs are not entitled to any damages. There was no reason why they should have paid the expenses of the men, and there is nothing to show that the defendant had any knowledge or could reasonably have expected that such payments would be made. This was simply a private matter between the plaintiffs and their own labourers, these advances being really loans by the plaintiffs to the men to whom they were made. Then clearly the defendant is not liable to pay the commission. That, if recoverable at all, must be recoverable from the men themselves. Argument. H. Symons, for the plaintiffs. The defendant is liable for all the damages that might reasonably be expected to flow from the breach of the contract. He must have known that these expenses and outlays would be incurred, and he made it impossible for the plaintiffs to collect the amount from the men, and he is now liable to make good the loss. The damages should be increased so as to allow the plaintiffs the commission of $1.00 per man that they would have received if employment had been furnished: Addison on Contracts, Sth ed., pp. 457, 1033; Randall v. Raper, E. B. & E. 84; McMahon v. Field, 7 Q. B. D. 591; Smith v Green, 1 C. P. D. 92. McCarthy, Q. C., in reply. January 14th, 1890. HAGARTY, C. J. O. : I agree with the judgment delivered in the Queen's Bench Division. I think it a case in which, whatever opinion we may be asked to hold as to the correctness of the verdict on the question of fact, we cannot properly interfere. There was certainly evidence, if believed, to warrant the finding. There are difficulties in adopting either the view of the plaintiffs or of the defendant. It was wholly a disputed question of fact, and clearly within the proper province of the jury to decide. I think the Queen's Bench took the right view as to the damages. They have allowed to the plaintiffs damages for the loss directly and proximately incurred by them on the defendant's breach of contract. I do not think the case should be embarrassed by the suggestions that possibly each of the labourers supplied would have a separate action against the defendant, or against the plaintiffs for inducing them to spend their time on a useless errand. Assuming the contract to have been duly made, the plaintiffs incur the expense of going to and returning from New York, and they pay the passage money of such of the HAGARTY labourers as could not pay their own fare. The refusal of Judgment. the defendant to employ as agreed causes this direct damage to the plaintiffs. is Nor do I think it pertinent to the question to urge that an employment for one day would satisfy the defendant's contract. We all know that in these days of large undertakings the business of supplying labourers to contractors very common. It never could be understood or imagined that contractors who agreed to find work for men to be brought 500 miles to them could ever contemplate a merely nominal employment for a day. It is not necessary to discuss any such case until the unlikely event of its arising. I see no objection to the plaintiffs recovering the natural damage arising on the breach of such a contract. We may suggest a case. A man in Toronto wants a servant or a mechanic specially adapted to particular work, a friend here suggests that he knows of a suitable person in New York, and undertakes to bring him up, and the other agrees to employ him. The friend does bring him up, paying his expenses, which the other agrees to repay him out of his earnings. On bringing him to Toronto there is a refusal to employ. I think the person bringing him up can properly recover his own expenses, loss of time, and whatever he had to pay for the servant. It would be no answer to say that he perhaps could recover the amount from the servant, or that the latter could also sue for not being employed as agreed. I think that the appeal must be dismissed. OSLER, J. A.:- [The learned Judge stated the facts, and continued:] It is impossible to say that there was not evidence on which the jury might not reasonably (if they believed it) find, as they have found, for the plaintiffs, and therefore, the motion as regards a new trial, was rightly denied by the Court below. The only other question is as to the measure of damages, C.J.O. Judgment. and on this too, I think the Court appealed from has come to the right conclusion. OSLER The contract was a very peculiar one. The plaintiffs agreed to go to New York and to bring up at their own expense a number of labourers, the defendant on his part agreeing to furnish them with work at $1.25 per day. Now the direct profit to the plaintiffs from a transaction of this kind is not apparent, and their claim for the commission they would have received from the men cannot be entertained, because it necessarily depended upon the agreement to be made with the men, of which the defendant knew nothing, and could have known nothing when he made the agreement. It was not a damage or loss within the contemplation of the parties flowing out of the breach of contract. The same as to any other claim for loss of profit. I can see none which can be said to be legitimately connected with the breach. But whatever may have been the motives of the plaintiffs in making such a contract, whether charitable or speculative, their expenses in carrying it out were lost and thrown away when the defendant refused to perform it, and these expenses they must be entitled to recover. The defendant says that it was not within his contemplation that the plaintiffs should pay the labourers' fares from New York to Lancaster; that they were not bound to do so. This would have been no answer if the case had been the converse of the present one, and the defendant had been suing for breach of the plaintiffs' contract to supply the labourers. If necessary in order to bring them to Lancaster, the plaintiffs would have had to pay their and therefore the cost of doing so, is a proper item of damage on breach of the contract by the defendant. think the appeal and cross-appeal should be dismissed without costs. way, |