HENRY ALEC CHARTER v Plaintiff [1957] EWCA Civ 2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

[1957] EWCA Civ 2

Venue Royal Courts of Justice,

Between

HENRY ALEC CHARTER

PlaintiffRespondent

ERNEST BENSON SULLIVANDefendant / Appellant

Before

Lord Justice Jenkins

Lord Justice Hodson

Lord Justice Sellers

Mr D.J. DUDLEY COLLARD (instructed by Messrs Bateman & Co., Agents for Messrs Foster, Wells & Coggings, Aldershot)

appeared on behalf of the

Applicant (Defendant ).

Mr GUY ALDOUS, Q.C., and Mr S. WALDMAN (instructed by Messrs Herringto & Carmichael, Aldershot)

appeared on behalf of the Respondent (Plaintiff).

Date 25 February 1957

LORD JUSTICE JENKINS :

This

[1]is an appeal by the Defendant in the action, Ernest Benson Sullivan, from a judgment given by His Honour Judge Rawlins at Aldershot County Court on the 16th October, 1956 whereby the learned Judge awarded the Plaintiff, Henry Alec Charter (who is a motor car dealer) £97. 13s. damages against the Defendant for breach of a contract for the sale by the Plaintiff to the Defendant of a Hillman Minx motor car. In his Defence and at the trial of the action the Defendant disputed the formation of any concluded contract for the sale to him by the Plaintiff of the car in question, but on this issue the learned Judge held against the Defendant that a concluded contract was proved. From that pure finding of fact there is no appeal, and the sole issue now before this Court concerns the measure of damages. She contract which the learned Judge held proved was entered into on the 29th or 30th June 1955, when the Defendant called at the Plaintiff's showrooms and agreed to buy a new fulmar Minx deluxe saloon motor car which the Plaintiff had in stock, together with extras in the shape of a heater and wheel discs, at a total price of £773. 17s. At this price the sale, if completed, would have given the Plaintiff a profit of £97. 15s., of which £90. 2s. 6d. was attributable to the car and the balance to the extras. A term of the bargain was that the Plaintiff was to take la part exchange at the price of £330 a Commer Van belonging to the Defendant. On or about the 2nd July 1955 the Defendant found that another dealer would be prepared to give him (as he thought) better terms, and in the 5th July 1955 he wrote to the Plaintiff a letter in which be refused to take the car. Rome seven or ten days later the Plaintiff re-sold the car to another purchaser, a Mr. Wigley, for the same price as the Defendant had agreed to pay, namely, £773. 17s., including the extras which had been fitted at the Defendant's request. The Hillman Minx car is a product of the motor manufacturing organisation known as the Rootes Group, and the Plaintiff is an area dealer for this organisation, covering the North Hampshire area. In accordance with what is now a usual practice la the trade, the retail price at which these cars may be sold is fixed by the manufacturers, and it follows that (subject to any revision by the manufacturers of the wholesale or permitted retail price which is not is question hare) the profit realisable by a dealer on the sale of a new car of any given model (as is the present case a Hillman Minx deluxe saloon) remains constant. No point was made on either aide of the fact that the Defendant was to give another vehicle la part exchange, nor was any distinction drawn between the car itself and the extra items (a relatively small matter). The sale to the Plaintiff can therefore be treated wholly as a sale for cash and although different considerations might apply to the extras as compared with the car itself, I propose for simplicity to treat £773. l7s. as the fixed retail price simply of the car as supplied by the manufacturers and £97. l5s. as the profit resulting from a sale of the car at that price. This indeed was the footing on which the case was argued before us* I have new, I think, sufficiently stated what I take to be the undisputed facts. Passing over at this stage certain evidence bearing upon the state of the Plaintiff's business in cars of the relevant description, and the effect (if any) upon that business of the Defendant's rejection of the car he agreed to bay, which was the subject of some controversy at the hearing before us, and to which I will later revert, I turn now to consider what, on the undisputed facts of the case, is is the eye of the law the true measure of the damages, if any, over and above merely nominal damages, which the Plaintiff has suffered through the Defendant's failure to take and pay for the car he agreed to buy. Consideration of this question must inevitably begin with a reference to Section 50 of the sale of Goods Act 1893:

"(1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance. (2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract. (3) Where there is an available market for the goods in question the measure of damages is prima facie , to be ascertained by the difference between the contract price and the market price or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept."

Mr. Collard, for the Defendant, argued that in the present case there was an available market for Hillman Minx deluxe saloon cars within the meaning of Section 30(3) of the Act, and accordingly that the measure of damages ought, in accordance with the prima facie rule laid down by that sub-section to be ascertained by the difference between the contract price and the market or current price at the time of the Defendant's refusal to perform his contract. The result of this argument, if accepted, would be that the Plaintiff could claim no more than nominal damages, because the market or current price could only be the fixed retail price, which was necessarily likewise the price at which he sold to the Defendant and re-sold to Wigley. But the Plaintiff is a motor car dealer whose trade for the present purpose can be described as consisting in the purchase of recurrent supplies of cars of the relevant description from the manufacturers, and selling the cars so obtained, or as many of them as ha can, at the fixed retail price. He thus receives, on each sale he is able to effect, the predetermined profit allowed by the fixed retail price, and it is obviously in his interest to sell as many cars as he can obtain from the manufacturers. The number of sales he can effect, and consequently the amount of profit he makes, will be governed, according to the state of trade, either by the number of cars he is able to obtain from the manufacturers, or by the number of purchasers he is able to find. In the former case demand exceeds supply, so that the default of one purchaser involves him is no loss, for he sells the same number of cars as he would have sold if that purchaser had not defaulted. In the latter case supply exceeds demand, so that the default of one purchaser may be said to have lost him one sale. Accordingly, it seems to me that even if there was within the meaning of Section 50(3) an available market for cars of the description is question, and even if the fixed retail price was the market or current price within the meaning of the same sub-section, the prime facie rule which it prescribes should be rejected in favour of the general rule laid down by sub-section (2); for it does not by any means necessarily follow that, because the Plaintiff sold at the fixed retail price to Mr. Wigley the car which the Defendant had agreed to buy at the selfsame fixed retail price, but refused to fake, therefore the Plaintiff suffered no "loss directly and naturally resulting, in the ordinary course of events" from the Defendant's breach of contract. This makes it strictly unnecessary to decide whether there was in the present case an available market for cars of the description in question within the meaning of Section 50(3). But I would find it difficult to hold that there was. Given default by some purchaser of one of his cars of the relevant description, the Plaintiff's only alternative mode of disposal would be to sell it at the fixed retail price to some other purchaser. He could endeavour to find another purchaser by displaying the car in his saleroom, circularising or canvassing old customers or the public at large, and advertising by posters or in newspapers. The car would obviously be of interest to retail customers only (i.e. the car-using public as distinct from the trade) and any purchaser he might succeed in finding would necessarily have to be a purchaser at the fixed retail price. At that price there might be no takers, in which case the Plaintiff would be left with the car on his hands* Section 50(3) seems to me to postulate a market in which there is a market or current price, i.e. a price fixed by supply and demand at which (be it more or less than the contract price) a purchaser can be found* If the only price at which a car can be sold is the fixed retail price and no purchaser can be found at that price, I do not think it can reasonably be said that there is a market or current price or that there is an available market. If the state of the trade were such that the Plaintiff could sell at the fixed retail price all the cars he could get, so that the Defendants* default did not result is the Plaintiff effecting one sale less than he would otherwise have effected, it may well be that the Plaintiff could not make out his claim to anything more than nominal damages. I am however inclined to think that this would not be on account of the necessary equality of the contract price and the fixed retail price at which alone the car could be sold, taken for the present purpose as the market or current price within the meaning of Section 50(3), but because en an application of the general principle laid down by Section 50(2) the Plaintiff would be found to have suffered no damage. In Thompson (W.L.) Ltd. -v- Robinson (Gunmakers) Ltd. 1955 Chancery, page 177, Mr. Justice Upjohn had before him a claim for damages in a case resembling the present case to the extent that the damages were claimed in respect of the Defendants' refusal to perform a contract with the Plaintiffs for the purchase from the Plaintiffs of a car (in that instance a Standard Vanguard ear) which like the car in the present case could only be sold by the Plaintiffs at a fixed retail price. It la, however, important to note that the case to which I am now referring proceeded on certain admissions, including an admission to the effect that in the relevant district at the date of the contract (which was also the date of the breach) "there was no shortage of Vanguard models to meet all immediate demands in the locality", which I take to mean (in effect) that the supply of such cars exceeded the demand. In these circumstances the Plaintiffs by agreement with their suppliers rescinded their contract with then, and returned the ear. In the ensuing action the Plaintiffs claimed from the Defendants damages amounting to the profit the Plaintiffs would have made on the sale of the car to the Defendants if the Defendants had duly completed their purchase of it, and the learned Judge held them entitled to those damages, The Defendants raised the same argument as has been raised by the Defendant in the present ease, viz that there was an available market for a car of the kind in question, within the meaning of Section 50(3), that there was a market or current price in the shape of the fixed retail price, and that as the fixed retail price was the same as the contract price the Plaintiffs had suffered no damage. In the course of his judgment Mr. Justice Upjohn referred to Lord Justice James' definition of a market in Dunkirk Colliery Co. -v- Lever , 9 Chancery Division, page 20 at pagea 24 and 28. Lord Justice James said this at page 24:

"under those circumstances the only thing that we can do is to send it back to the referee with an intimation that we are of opinion upon the facts (agreeing with the Master of the Rolls in that respect), that the facta do not warrant the application of the principle mentioned in the award, namely, that there was what may be properly called a market. What I understand by a market in such a case as this la, that when the Defendant refused to take the 300 tons the first week or the first month, the Plaintiffs might have sent it in waggons somewhere else, where they could sell it, just as they sell corn on the Exchange, or cotton at Liverpool: that is to say, that there was a fair market where they could have found a purchaser either by themselves or through some agent at some particular place. That is my notion of the meaning of a market under those circumstances."

Mr. Justice Upjohn also referred to the Scottish case of Marshall & Co. -v- Nicoll & Son 1919 Session Cases (House of Lords) page 129, where it was held in the Court of Session that there was an available market within the meaning of section 51(3) of the Sale of Goods Act, 1893, for annealed steel sheets although they were not kept in stock and were not purchaseable in the open market, In the House of Lords the decision was affirmed but their Lordships would seem to have been equally divided on the question whether there was an available market for the goods. In this state of the authorities, the learned Judge felt himself bound by Dunkirk Collieries Co. -v-Lever. supra , and held (in effect) that Lord Justice James's definition in that case prevented him from holding that in the case then before his there was an available market within the meaning of section 50(3}. Mr. Justice Upjohn went on to propound a more extended meaning for the phrase "available market" in these terms (at page 187 of 1955 Chancery Division) "Had the matter been res integra I think that I should have found that an 'available market' merely means that the situation in the particular trade in the particular area was such that the particular goods could freely be sold, and that there was a demand sufficient to absorb readily all the goods that were thrust on it, so that if a purchaser defaulted, the goods in question could readily be disposed of." He went on to say (in effect) that in the case then before him there was no available market because the supply of Vanguard cars at the material time exceeded the demand. I doubt if Lord Justice James' observations in Dunkirk Collieries Co. -v- Lever supra , should be literally applied as an exhaustive definition of an available market in all cases. On the other hand I do not find Mr. Justice Upjohn's definition entirely satisfactory. I will not however attempt to improve upon it, but will content myself with the negative proposition that I doubt if there can be an available market for particular goods in any sense relevant to section 50(3} of the Sale of Goods Act, 1893 unless those goods are available for sale in the market at the market or current price in the sense of the price, whatever it may be, fixed by reference to supply and demand as the price at which a purchaser for the goods in question can be found, be it greater or less than or equal to the contract price. The language of Section 50(3) seems to me to postulate that in the cases to which it applies there will, or may, be a difference between the contract price and the market or current price, which cannot be so where the goods can only be sold at a fixed retail price. Accordingly I am of opinion that whether there was in this case "an available market" within the meaning of Section 50(3) or not, it is a case in which Section 50(2) should be applied to the exclusion of Section 50(3). It remains therefore to ascertain the loss (if any) "naturally resulting in the ordinary course of events" from the Defendant's breach of contract, and the measure of that loss must in my opinion be the amount (if any) of the profit he has lost by reason of the Defendant's failure to take and pay for the car he agreed to buy. This accords with the view taken by Mr. Justice Upjohn in Thompson (W.L) -v- Robinson (Gunmakers) Ltd., supra . and else with the principle stated in In re Vic Mill Ltd. 1913 1 Chancery, page 468, which Mr. Justice Upjohn followed and applied. I should next refer to the evidence of which I deferred consideration earlier in this Judgment. The Plaintiff's Sales Manager, a Mr. Winter, gave evidence from the Judge's abbreviated note of which I extract the following. From examination-in-chief:

"I'm certain we would have sold this purchaser" (i.e. Mr. Wigley)"another Hillman Minx if not this one." (i.e. the one the Defendant had rejected). From cross-examination: "

No other Hillman Minx in stock I think. If Defendant had taken the car we would have ordered one from stock" (I think this must mean front the manufacturers' stock) "- it would have taken a week to 10 days to get one* Can sell all Hillman Minx we can get. We are Rootes Group Area dealers for this area. We have lost the sale of a car - sold same price to Wigley." In the brief record of his judgment with which we have been provided, the learned Judge in terms expressed his acceptance of Mr. Winter's evidence as to selling Mr. Wigley "another Hillman Minx if not this one", and as to being able to order one from stock and obtain it in 7 - 10 days; but he made no reference to what appcars to me to be the vital passage in Mr. Winter's evidence:

"Can sell all the Hillman Minx we can get"

. Notwithstanding Mr. Aldous's submission to the contrary on the Plaintiff's behalf, I think we should assume that the learned Judge as accepted as accurate the Plaintiff's Sales Manager's own description of the state of the Plaintiff's business in Hillman Minx cars. Moreover I think we should take that description as signifying, according to the ordinary meaning of the language used, that the Plaintiff could always find purchasers fop all the Hillman Minx cars he was able to get. Mr. Collard objected to Mr. Winter's statement to the effect that he was certain that he could have sold another Hillman Minx to Mr. Wigley if Mr. Wigley had not bought the one which the Defendant had rejected. Mr. Collard said that this was mere hearsay and opinion and inadmissible as evidence, and that Mr. Wigley should have been called to prove his intention. I think this is hypercritical. The learned Judge described Mr. Winter as a very experienced salesman and expressly accepted this part of his evidence. I therefore see no reason to doubt the correctness of Mr. Winter's assessment of Mr. Wigley's intention, and I accept it accordingly. I have not overlooked the evidence given by the Plaintiff's storeman Mr. Harold Charles Charter, and noted by the learned Judge as "Delivery of Hillman Minx not easy at this time - might have to wait soma time", but I attach no importance to it because, as will hereafter appear, the Judge preferred the evidence of Mr. Winter. The matter therefore stands thus. If the Defendant had duly performed his bargain the Plaintiff would have made on that transaction a profit of £97.15s.0d. The calculation accordingly starts with a loss of profit through the Defendant's default, of £97.l5s.0d. that loss was not cancelled or reduced by the sale of that same car to Mr. Wigley, for if the Defendant had duly taken and paid for the car he agreed to buy, the Plaintiff could have sold another car to Mr, Wigley, in which case there would have been two sales and two profits. Sea In re Vic Mill Ltd., supra . and particularly per Lord Justice Hamilton at page 473, and Lord Justice Buckley at page 474. But the matter does not rest there. The Plaintiff must further show that the sum representing the profit ha would have made if the Defendant had performed his contract has in fact been lost. Here I think ha fails, in view of Mr. Winter's evidence to the effect that the Plaintiff could sell all the Hillman Minx cars he could get. I have already expressed my opinion as to the meaning of this statement. It comes, I think, to this, that according to the Plaintiff's own Sales Manager the state of trade was such that the Plaintiff could always find a purchaser for every Hillman Minx car he could get from the manufacturers; and if that is right it inevitably follows that ha sold the same number of cars and made the same number of fixed profits as he would have sold and made if the Defendant had duly carried out his bargain. Mr. Justice Upjohn's decision in favour of the Plaintiff dealers in Thompson (W.L.) Ltd.'s case (supra) was essentially baaed on the admitted fact that the supply of the cars in question exceeded the demand, and his judgment leaves no room for doubt that if the demand had exceeded the supply his decision would have been the other way. In dealing with the present case we were put in some difficulty by the Appellant's failure to perform the duty laid upon him by the Rules of the Supreme Court, Order 68 rule 20(4) of obtaining from the Judge and furnishing to this Court a copy of the Judge's note made under Section 108 of the County Courts Act, 1934, of the question of law involved in the present appeal. We accepted as the beat available substitute a short note of the arguments and judgment taken by the Plaintiff's Solicitor and submitted by him to the learned Judge who signed it on the 9th November, 1956 with the note "This appears to me accurately to represent my findings". The relevant part of this Note reads thus:

"It was Mr. Jaye's contention" (Mr. Jaye was the Defendant's solicitor) "that because the car had been sold to Mr. Wigley within 7 to 10 days the Plaintiff had lost no profit. Be farther submitted that the Plaintiff had not shown that there was no" (the note here says "an" but clearly "no" was intended) available market to bring the case within Thompson v. Robinson , Mr. Winter has said it would have taken a week to 10 days to obtain another and Mr. Charter had said delivery of Hillman Minx not easy at that time. Mr. Jaye stated further that the Plaintiff had pleaded that he has lost the profit on this particular car but in fact the car had been sold. I applied for leave to amend the Particulars of Claim by deleting the words 'the said' and adding 'a second'. Mr. Jaye raised no objection to the amendment and the Judge granted leave, I was not called upon by the Judge to reply. In a very short Judgment His Honour stated he was satisfied the Plaintiff had made out his case, and that the case came within the decision in Thompson v. Robinson. He accepted the evidence of Mr. Winter who he considered to be a very experienced Salesman when be said he had some difficulty in getting Mr. Wigley to take the car, because it had already been registered, and that if he had not sold this car to Mr. Wigley, he would have sold another one to him. Mr. Charter did say that delivery of Hillman Minx was not easy at this time but he was only a storeman employed by the Plaintiff and the delivery position of cars was not within his knowledge - he accepted what Mr. Winter had said that he could have ordered one from stock and obtained it in a week to 10 days."

It will be seen that this note of the Judgment contains no reference to Mr. Winter's statement "Can sell all Hillman Minx we can get." Mr. Aldous submitted that if the Plaintiff's solicitor's note signed by the Judge was to do duty as the Judge's note, we must deal with the case exclusively on the findings stated in that note, and that on those findings there was evidence on which the Judge could properly hold that the Plaintiff had suffered damage in the shape of his loss of the profit ha would have made on the car which he could have obtained from the manufacturers and sold to Wigley if the Plaintiff had duly taken the car he agreed to buy but which owing to his default was sold to Wigley. But as I have already said I think we must treat as part of the evidence before the ' learned Judge, and accepted by him as true, Mr. Winter's statement "Can sell all Hillman Minx we can get". It is clear that the Judge accepted Mr* Winter's evidence as a whole, and ha said nothing to suggest that he rejected this part of it. As appcars from what I have said above, I think the meaning of Mr* Winter's statement is plain. It is the evidence of the Plaintiff's own Sales Manager as to the state of the trade, and if accepted as accurate, as I think it should be accepted, it seems to me completely destructive of the Plaintiff's case on damages. The materials before the Court leave a good deal to be desired* The parties were no doubt preoccupied with the issue of contract or no contract, and the argument in regard to damages based on Thompson (W.L.) Ltd's. case was perhaps something of an afterthought, as is suggested by the belated (and as I think unnecessary) amendment of the Points of Claim by substituting "a second motor ear" for "the said motor ear" in the first item of damage claimed. But it was for the Plaintiff to prove that ho did in fact sustain the loss of profit claimed, and this to my mind he wholly failed to do. The mere assertion by Mr. Winter "We have lost sale of a car" is clearly not enough, particularly when read in conjunction with his "can sell all Hillman Minx we can get". Accordingly there was in my view no evidence on which the learned Judge could property hold that the Plaintiff had suffered the damage claimed, and I would allow this appeal. LORD JUSTICE HODSON : I agree that the appeal should be allowed and with the order proposed on the ground that the Plaintiff, Respondent to this appeal, has failed to prove a loss beyond that which has been recouped by the resale of the motor car in question. LORD JUSTICE SELLERS : The judgment from which the Defendant, the buyer, appeals found and established that on or about the 29th or 30th June, 1956 the Defendant agreed to buy from the Plaintiff a now Hillman Minx Saloon Motor Car and that on the 5th July, 1956, when the car was licensed and ready for delivery as arranged, the Defendant repudiated the agreement and refused to take delivery because he had found that he could get a better bargain elsewhere for his Commer Van which was to be taken in part payment of the price. The only question on the appeal is as to the damages the Plaintiff la entitled to receive for the non-acceptance of the car by the Defendant. The Plaintiff claimed the loss of profit on the sale. The Defendant denied that there had been in the circumstances any profit lost and alleged that nominal damages only were recoverable. The car rejected by the Defendant was put back into the Plaintiff's Showroom and was sold within a week or ten days to another customer at the same fixed retail price. This effective sale resulted in the normal profit to the Plaintiff but he claims that he has nevertheless lost a profit for he would have sold and delivered, but for the Defendant's default, two cars instead of one and would have made two profits instead of one. Having regard to the nature of this claim singularly little evidence was directed to the issue. The Plaintiff was the area Dealer for the Rootes Group who manufacture the Hillman Minx cars and was required to sell them at not less than their fixed price for a retail sale. He had only one Hillman Minx in stock but if the Defendant had taken delivery he would have ordered another one and would have expected a replacement within a week or ten days. The Sales Manager said he was certain he would have sold the new purchaser another Hillman Minx if the one in question had not bean available (by reason of the Defendant's default). A Seller's loss of profit on a sale may clearly directly and naturally result in the ordinary course of events front a buyer's wrongful neglect or refusal to accept and pay for the goods bought. But it may be that the Seller is so circumstanced that he could sell the goods elsewhere either at the same price as the contract price or at some lesser price which would either extinguish or minimise the loss to the Seller and therefore the damages which the defaulting buyer will have to pay. Learned Counsel for the Defendant placed great reliance on Section 50(3) of the Sale of Goods Act 1893 and submitted that there was an available market for the car at the one fixed or current price, which was also the contract price, and therefore there could be no loss of profit recoverable as that sub-section established the measure of damages. No evidence was given as to anything the Plaintiff might have done to bring about a resale of the rejected car except that which he did, namely place it in his showroom and await a new buyer. Having regard to his success within ten days the submissions on the meaning of 'available market' seem to me to be somewhat theoretical and academic. The Act does not attempt to define a market and it may be conceded that one can exist in a variety of circumstances and apart, of necessity, from a defined place but since its trading has to serve as a factor in measuring the damages it must at least be a market in which the Seller could, if ha wished, sell the goods left on his hands. At the time of the Defendant's refusal to accept, the 6th June, 1956, it has not been shown that there was any real market where the rejected oar could have been offered for sale and sold. There was no available market. No doubt the current retail price was known and ascertained but there was no immediate buyer. The Plaintiff had the duty to act reasonably and mitigate the damages as far as he reasonably could. What ha did resulted in a resale at the contract price but the question is whether that resale mitigated his loss and the same question would arise if a gala could have been made in an 'available market'. The Plaintiff's case is that by reason of the Defendant's non-acceptance of the car ha had bought the Plaintiff has lost the profit ha would have earned and that the resale of the car to another customer did not and could not in the circumstances give him a substituted profit. He claims that he could have sold a Hillman Minx to the Defendants and another to the new purchaser and made two profits, whereas he has made only one and lost irreplaceably the profit on the Defendant's transaction (or at leant on one of the two transactions). If a Seller can prove that a profit has beam irretrievably lost on a sale of goods by the buyer's default it would in my opinion be recoverable as damages in accordance with Section 50(2), But where there has in fact been a resale of the goods the Seller has the burden of proving a loss of profit beyond that which on the face of it has been recouped in whole or in part by the resale. In my view the Plaintiff has failed to give adequate proof of such a loss in this case. The Sales Manager for the Plaintiff said that he had lost the gala of a car but he also said that ha could sell all the Hillman Minx Cars he could get. It was argued that the statement that ha could sell all the cars he could get ought not to be taken literally but should be qualified in some way. Even if that la so which I see, on the evidence, no reason to concede, it does not establish affirmative evidence that the Plaintiff could get all the Hillman Minx cars he could sell. If it could be proved that there were in effect unlimited -supplies of Hillman Minx cars and a limited number of buyers in the circumstances in which a dealer was trading then it would appear that the dealer could establish a loss of profit which could not be mitigated. On the other hand moat dealers in cars (and in many other commodities), it might be visualised, either have a quota fixed by their supplier or a supply fixed by their own trading limits governed by their scope of trading. In such a case if in a given trading period all the goods the dealer had available for sale had been sold, or would in all probability be sold, then the fact that one or more purchasers had defaulted and had been or would be replaced by others would not reduce the dealer's maximum profits. The matter cannot of course be worked out ad infinitum but would be decided on the probabilities of the case and having regard to the nature, extent and circumstances of the dealer's trading. If a dealer has twenty cars available for sale and twenty-five potential buyers he still would make his full profit if he sold the twenty cars notwithstanding that two or three purchasers defaulted. In Thompson (W.L.) Ltd. v. Robinson (Gunmakers) Ltd . 1955 1 Chancery, page 177, Mr. Justice Upjohn gave damages for loss of profit to dealers who had sold a Vanguard motor car to the Defendants who refused to take delivery. The dealers had returned the vehicle to their Suppliers but the learned Judge decided the case on the basis that the dealers had lest their bargain, that they had sold one car less than they otherwise would have done, which is the Plaintiff's contention here. It is important to note in that case, page 178:

"that in the East Riding of Yorkshire (the transaction actually took place in Hull) at the time of the Contract of Sale there was no shortage of 'Vanguard' models to meet all immediate demands in the locality"

. On those facts the learned Judge in my view was right in saying that the Plaintiffs had lost a customer and thereby a profit. There was no point in their keeping the car and awaiting a resale as they could acquire a Vanguard car to meet each purchaser as he presented himself. They could not, in other words, avoid their loss. The reasoning of Lord Justice Hamilton and Lord Justice Buckley in In re Vic Mill Ltd. 1913 1 Chancery, page 465 quoted by the Judge is singularly apt and adaptable to this case. On page 187 Mr. Justice Upjohn states the possible extreme situations* One, where in the case of rejection "if any purchaser fell out there were many waiting to take his place". The other, "But on the assumed facts circumstances had changed in relation to 'Vanguard' motor cars and in March of this year there was not a demand in the East Riding which could readily absorb all the 'Vanguard' motor cars available for sale". Whether the Plaintiff could have proved a similar situation with regard to the Hillman Minx cars in his area I do not know but I cannot find that it was either admitted or proved. It is for this reason that I would allow this appeal. There are two items in the damage claimed. loss of profit on a car heater and on wheel discs both of which were ordered for the Hillman Minx and for which £7.12s.6d. in all is claimed. These items might stand on a different footing from the loss of profit of £90.2s.6d. claimed for the lose of the sale of the car but no such distinction was made either at the trial or on the Appeal and I would therefore find the Plaintiff entitled to 40s. nominal damages only. The result is that only nominal damages are recoverable, and I take it the appropriate order would be to vary the order made below by substituting 40s. as the amount of the damages. MR COLLARD: Yes, ay Lord. LORD JUSTICE JENKINS : Then, subject to anything that can be said to the contrary, it looks as though the successful Appellant should have the costs here and below. LORD JUSTICE SELLERS : You cannot resist that, can you Mr. Waldman? MR WALDMAN: No, my Lord. LORD JUSTICE JENKINS : This is an appeal by the Defendant in the action, Ernest Benson Sullivan, from a judgment given by His Honour Judge Rawlins at Aldershot County Court on the 16th October, 1956 whereby the learned Judge awarded the Plaintiff, Henry Alec Charter (who is a motor car dealer) £97. 13s. damages against the Defendant for breach of a contract for the sale by the Plaintiff to the Defendant of a Hillman Minx motor car. In his Defence and at the trial of the action the Defendant disputed the formation of any concluded contract for the sale to him by the Plaintiff of the car in question, but on this issue the learned Judge held against the Defendant that a concluded contract was proved.

[2]From that pure finding of fact there is no appeal, and the sole issue now before this Court concerns the measure of damages.

[3]She contract which the learned Judge held proved was entered into on the 29th or 30th June 1955, when the Defendant called at the Plaintiff's showrooms and agreed to buy a new fulmar Minx deluxe saloon motor car which the Plaintiff had in stock, together with extras in the shape of a heater and wheel discs, at a total price of £773. 17s. At this price the sale, if completed, would have given the Plaintiff a profit of £97. 15s., of which £90. 2s. 6d. was attributable to the car and the balance to the extras. A term of the bargain was that the Plaintiff was to take la part exchange at the price of £330 a Commer Van belonging to the Defendant. On or about the 2nd July 1955 the Defendant found that another dealer would be prepared to give him (as he thought) better terms, and in the 5th July 1955 he wrote to the Plaintiff a letter in which be refused to take the car.

[4]Rome seven or ten days later the Plaintiff re-sold the car to another purchaser, a Mr. Wigley, for the same price as the Defendant had agreed to pay, namely, £773. 17s., including the extras which had been fitted at the Defendant's request.

[5]The Hillman Minx car is a product of the motor manufacturing organisation known as the Rootes Group, and the Plaintiff is an area dealer for this organisation, covering the North Hampshire area.

[6]In accordance with what is now a usual practice la the trade, the retail price at which these cars may be sold is fixed by the manufacturers, and it follows that (subject to any revision by the manufacturers of the wholesale or permitted retail price which is not is question hare) the profit realisable by a dealer on the sale of a new car of any given model (as is the present case a Hillman Minx deluxe saloon) remains constant.

[7]No point was made on either aide of the fact that the Defendant was to give another vehicle la part exchange, nor was any distinction drawn between the car itself and the extra items (a relatively small matter). The sale to the Plaintiff can therefore be treated wholly as a sale for cash and although different considerations might apply to the extras as compared with the car itself, I propose for simplicity to treat £773. l7s. as the fixed retail price simply of the car as supplied by the manufacturers and £97. l5s. as the profit resulting from a sale of the car at that price. This indeed was the footing on which the case was argued before us*

[8]I have new, I think, sufficiently stated what I take to be the undisputed facts. Passing over at this stage certain evidence bearing upon the state of the Plaintiff's business in cars of the relevant description, and the effect (if any) upon that business of the Defendant's rejection of the car he agreed to bay, which was the subject of some controversy at the hearing before us, and to which I will later revert, I turn now to consider what, on the undisputed facts of the case, is is the eye of the law the true measure of the damages, if any, over and above merely nominal damages, which the Plaintiff has suffered through the Defendant's failure to take and pay for the car he agreed to buy.

[9]Consideration of this question must inevitably begin with a reference to Section 50 of the sale of Goods Act 1893:

"(1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance. (2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract. (3) Where there is an available market for the goods in question the measure of damages is prima facie , to be ascertained by the difference between the contract price and the market price or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept."

[10]Mr. Collard, for the Defendant, argued that in the present case there was an available market for Hillman Minx deluxe saloon cars within the meaning of Section 30(3) of the Act, and accordingly that the measure of damages ought, in accordance with the prima facie rule laid down by that sub-section to be ascertained by the difference between the contract price and the market or current price at the time of the Defendant's refusal to perform his contract.

[11]The result of this argument, if accepted, would be that the Plaintiff could claim no more than nominal damages, because the market or current price could only be the fixed retail price, which was necessarily likewise the price at which he sold to the Defendant and re-sold to Wigley.

[12]But the Plaintiff is a motor car dealer whose trade for the present purpose can be described as consisting in the purchase of recurrent supplies of cars of the relevant description from the manufacturers, and selling the cars so obtained, or as many of them as ha can, at the fixed retail price. He thus receives, on each sale he is able to effect, the predetermined profit allowed by the fixed retail price, and it is obviously in his interest to sell as many cars as he can obtain from the manufacturers. The number of sales he can effect, and consequently the amount of profit he makes, will be governed, according to the state of trade, either by the number of cars he is able to obtain from the manufacturers, or by the number of purchasers he is able to find. In the former case demand exceeds supply, so that the default of one purchaser involves him is no loss, for he sells the same number of cars as he would have sold if that purchaser had not defaulted. In the latter case supply exceeds demand, so that the default of one purchaser may be said to have lost him one sale.

[13]Accordingly, it seems to me that even if there was within the meaning of Section 50(3) an available market for cars of the description is question, and even if the fixed retail price was the market or current price within the meaning of the same sub-section, the prime facie rule which it prescribes should be rejected in favour of the general rule laid down by sub-section (2); for it does not by any means necessarily follow that, because the Plaintiff sold at the fixed retail price to Mr. Wigley the car which the Defendant had agreed to buy at the selfsame fixed retail price, but refused to fake, therefore the Plaintiff suffered no "loss directly and naturally resulting, in the ordinary course of events" from the Defendant's breach of contract.

[14]This makes it strictly unnecessary to decide whether there was in the present case an available market for cars of the description in question within the meaning of Section 50(3). But I would find it difficult to hold that there was. Given default by some purchaser of one of his cars of the relevant description, the Plaintiff's only alternative mode of disposal would be to sell it at the fixed retail price to some other purchaser. He could endeavour to find another purchaser by displaying the car in his saleroom, circularising or canvassing old customers or the public at large, and advertising by posters or in newspapers. The car would obviously be of interest to retail customers only (i.e. the car-using public as distinct from the trade) and any purchaser he might succeed in finding would necessarily have to be a purchaser at the fixed retail price. At that price there might be no takers, in which case the Plaintiff would be left with the car on his hands* Section 50(3) seems to me to postulate a market in which there is a market or current price, i.e. a price fixed by supply and demand at which (be it more or less than the contract price) a purchaser can be found* If the only price at which a car can be sold is the fixed retail price and no purchaser can be found at that price, I do not think it can reasonably be said that there is a market or current price or that there is an available market. If the state of the trade were such that the Plaintiff could sell at the fixed retail price all the cars he could get, so that the Defendants* default did not result is the Plaintiff effecting one sale less than he would otherwise have effected, it may well be that the Plaintiff could not make out his claim to anything more than nominal damages. I am however inclined to think that this would not be on account of the necessary equality of the contract price and the fixed retail price at which alone the car could be sold, taken for the present purpose as the market or current price within the meaning of Section 50(3), but because en an application of the general principle laid down by Section 50(2) the Plaintiff would be found to have suffered no damage.

[15]In Thompson (W.L.) Ltd. -v- Robinson (Gunmakers) Ltd. 1955 Chancery, page 177, Mr. Justice Upjohn had before him a claim for damages in a case resembling the present case to the extent that the damages were claimed in respect of the Defendants' refusal to perform a contract with the Plaintiffs for the purchase from the Plaintiffs of a car (in that instance a Standard Vanguard ear) which like the car in the present case could only be sold by the Plaintiffs at a fixed retail price. It la, however, important to note that the case to which I am now referring proceeded on certain admissions, including an admission to the effect that in the relevant district at the date of the contract (which was also the date of the breach) "there was no shortage of Vanguard models to meet all immediate demands in the locality", which I take to mean (in effect) that the supply of such cars exceeded the demand. In these circumstances the Plaintiffs by agreement with their suppliers rescinded their contract with then, and returned the ear. In the ensuing action the Plaintiffs claimed from the Defendants damages amounting to the profit the Plaintiffs would have made on the sale of the car to the Defendants if the Defendants had duly completed their purchase of it, and the learned Judge held them entitled to those damages, The Defendants raised the same argument as has been raised by the Defendant in the present ease, viz that there was an available market for a car of the kind in question, within the meaning of Section 50(3), that there was a market or current price in the shape of the fixed retail price, and that as the fixed retail price was the same as the contract price the Plaintiffs had suffered no damage. In the course of his judgment Mr. Justice Upjohn referred to Lord Justice James' definition of a market in Dunkirk Colliery Co. -v- Lever , 9 Chancery Division, page 20 at pagea 24 and 28. Lord Justice James said this at page 24:

"under those circumstances the only thing that we can do is to send it back to the referee with an intimation that we are of opinion upon the facts (agreeing with the Master of the Rolls in that respect), that the facta do not warrant the application of the principle mentioned in the award, namely, that there was what may be properly called a market. What I understand by a market in such a case as this la, that when the Defendant refused to take the 300 tons the first week or the first month, the Plaintiffs might have sent it in waggons somewhere else, where they could sell it, just as they sell corn on the Exchange, or cotton at Liverpool: that is to say, that there was a fair market where they could have found a purchaser either by themselves or through some agent at some particular place. That is my notion of the meaning of a market under those circumstances."

[16]Mr. Justice Upjohn went on to propound a more extended meaning for the phrase "available market" in these terms (at page 187 of 1955 Chancery Division) "Had the matter been res integra I think that I should have found that an 'available market' merely means that the situation in the particular trade in the particular area was such that the particular goods could freely be sold, and that there was a demand sufficient to absorb readily all the goods that were thrust on it, so that if a purchaser defaulted, the goods in question could readily be disposed of."

[17]He went on to say (in effect) that in the case then before him there was no available market because the supply of Vanguard cars at the material time exceeded the demand.

[18]I doubt if Lord Justice James' observations in Dunkirk Collieries Co. -v- Lever supra , should be literally applied as an exhaustive definition of an available market in all cases. On the other hand I do not find Mr. Justice Upjohn's definition entirely satisfactory. I will not however attempt to improve upon it, but will content myself with the negative proposition that I doubt if there can be an available market for particular goods in any sense relevant to section 50(3} of the Sale of Goods Act, 1893 unless those goods are available for sale in the market at the market or current price in the sense of the price, whatever it may be, fixed by reference to supply and demand as the price at which a purchaser for the goods in question can be found, be it greater or less than or equal to the contract price. The language of Section 50(3) seems to me to postulate that in the cases to which it applies there will, or may, be a difference between the contract price and the market or current price, which cannot be so where the goods can only be sold at a fixed retail price.

[19]Accordingly I am of opinion that whether there was in this case "an available market" within the meaning of Section 50(3) or not, it is a case in which Section 50(2) should be applied to the exclusion of Section 50(3).

[20]It remains therefore to ascertain the loss (if any) "naturally resulting in the ordinary course of events" from the Defendant's breach of contract, and the measure of that loss must in my opinion be the amount (if any) of the profit he has lost by reason of the Defendant's failure to take and pay for the car he agreed to buy. This accords with the view taken by Mr. Justice Upjohn in Thompson (W.L) -v- Robinson (Gunmakers) Ltd., supra . and else with the principle stated in In re Vic Mill Ltd. 1913 1 Chancery, page 468, which Mr. Justice Upjohn followed and applied.

[21]I should next refer to the evidence of which I deferred consideration earlier in this Judgment.

[22]The Plaintiff's Sales Manager, a Mr. Winter, gave evidence from the Judge's abbreviated note of which I extract the following. From examination-in-chief: "I'm certain we would have sold this purchaser" (i.e. Mr. Wigley)"another Hillman Minx if not this one." (i.e. the one the Defendant had rejected).

[23]From cross-examination:

"No other Hillman Minx in stock I think. If Defendant had taken the car we would have ordered one from stock" (I think this must mean front the manufacturers' stock) "- it would have taken a week to 10 days to get one* Can sell all Hillman Minx we can get. We are Rootes Group Area dealers for this area. We have lost the sale of a car - sold same price to Wigley."

[24]In the brief record of his judgment with which we have been provided, the learned Judge in terms expressed his acceptance of Mr. Winter's evidence as to selling Mr. Wigley "another Hillman Minx if not this one", and as to being able to order one from stock and obtain it in 7 - 10 days; but he made no reference to what appcars to me to be the vital passage in Mr. Winter's evidence: "Can sell all the Hillman Minx we can get".

[25]Notwithstanding Mr. Aldous's submission to the contrary on the Plaintiff's behalf, I think we should assume that the learned Judge as accepted as accurate the Plaintiff's Sales Manager's own description of the state of the Plaintiff's business in Hillman Minx cars. Moreover I think we should take that description as signifying, according to the ordinary meaning of the language used, that the Plaintiff could always find purchasers fop all the Hillman Minx cars he was able to get.

[26]Mr. Collard objected to Mr. Winter's statement to the effect that he was certain that he could have sold another Hillman Minx to Mr. Wigley if Mr. Wigley had not bought the one which the Defendant had rejected. Mr. Collard said that this was mere hearsay and opinion and inadmissible as evidence, and that Mr. Wigley should have been called to prove his intention. I think this is hypercritical. The learned Judge described Mr. Winter as a very experienced salesman and expressly accepted this part of his evidence. I therefore see no reason to doubt the correctness of Mr. Winter's assessment of Mr. Wigley's intention, and I accept it accordingly.

[27]I have not overlooked the evidence given by the Plaintiff's storeman Mr. Harold Charles Charter, and noted by the learned Judge as "Delivery of Hillman Minx not easy at this time - might have to wait soma time", but I attach no importance to it because, as will hereafter appear, the Judge preferred the evidence of Mr. Winter.

[28]The matter therefore stands thus. If the Defendant had duly performed his bargain the Plaintiff would have made on that transaction a profit of £97.15s.0d. The calculation accordingly starts with a loss of profit through the Defendant's default, of £97.l5s.0d. that loss was not cancelled or reduced by the sale of that same car to Mr. Wigley, for if the Defendant had duly taken and paid for the car he agreed to buy, the Plaintiff could have sold another car to Mr, Wigley, in which case there would have been two sales and two profits. Sea In re Vic Mill Ltd., supra . and particularly per Lord Justice Hamilton at page 473, and Lord Justice Buckley at page 474. But the matter does not rest there. The Plaintiff must further show that the sum representing the profit ha would have made if the Defendant had performed his contract has in fact been lost. Here I think ha fails, in view of Mr. Winter's evidence to the effect that the Plaintiff could sell all the Hillman Minx cars he could get.

[29]I have already expressed my opinion as to the meaning of this statement. It comes, I think, to this, that according to the Plaintiff's own Sales Manager the state of trade was such that the Plaintiff could always find a purchaser for every Hillman Minx car he could get from the manufacturers; and if that is right it inevitably follows that ha sold the same number of cars and made the same number of fixed profits as he would have sold and made if the Defendant had duly carried out his bargain.

[30]Mr. Justice Upjohn's decision in favour of the Plaintiff dealers in Thompson (W.L.) Ltd.'s case (supra) was essentially baaed on the admitted fact that the supply of the cars in question exceeded the demand, and his judgment leaves no room for doubt that if the demand had exceeded the supply his decision would have been the other way.

[31]In dealing with the present case we were put in some difficulty by the Appellant's failure to perform the duty laid upon him by the Rules of the Supreme Court, Order 68 rule 20(4) of obtaining from the Judge and furnishing to this Court a copy of the Judge's note made under Section 108 of the County Courts Act, 1934, of the question of law involved in the present appeal. We accepted as the beat available substitute a short note of the arguments and judgment taken by the Plaintiff's Solicitor and submitted by him to the learned Judge who signed it on the 9th November, 1956 with the note "This appears to me accurately to represent my findings". The relevant part of this Note reads thus:

"It was Mr. Jaye's contention" (Mr. Jaye was the Defendant's solicitor) "that because the car had been sold to Mr. Wigley within 7 to 10 days the Plaintiff had lost no profit. Be farther submitted that the Plaintiff had not shown that there was no" (the note here says "an" but clearly "no" was intended) available market to bring the case within Thompson v. Robinson , Mr. Winter has said it would have taken a week to 10 days to obtain another and Mr. Charter had said delivery of Hillman Minx not easy at that time. Mr. Jaye stated further that the Plaintiff had pleaded that he has lost the profit on this particular car but in fact the car had been sold. I applied for leave to amend the Particulars of Claim by deleting the words 'the said' and adding 'a second'. Mr. Jaye raised no objection to the amendment and the Judge granted leave, I was not called upon by the Judge to reply. In a very short Judgment His Honour stated he was satisfied the Plaintiff had made out his case, and that the case came within the decision in Thompson v. Robinson. He accepted the evidence of Mr. Winter who he considered to be a very experienced Salesman when be said he had some difficulty in getting Mr. Wigley to take the car, because it had already been registered, and that if he had not sold this car to Mr. Wigley, he would have sold another one to him. Mr. Charter did say that delivery of Hillman Minx was not easy at this time but he was only a storeman employed by the Plaintiff and the delivery position of cars was not within his knowledge - he accepted what Mr. Winter had said that he could have ordered one from stock and obtained it in a week to 10 days."

[32]It will be seen that this note of the Judgment contains no reference to Mr. Winter's statement "Can sell all Hillman Minx we can get."

[33]Mr. Aldous submitted that if the Plaintiff's solicitor's note signed by the Judge was to do duty as the Judge's note, we must deal with the case exclusively on the findings stated in that note, and that on those findings there was evidence on which the Judge could properly hold that the Plaintiff had suffered damage in the shape of his loss of the profit ha would have made on the car which he could have obtained from the manufacturers and sold to Wigley if the Plaintiff had duly taken the car he agreed to buy but which owing to his default was sold to Wigley. But as I have already said I think we must treat as part of the evidence before the ' learned Judge, and accepted by him as true, Mr. Winter's statement "Can sell all Hillman Minx we can get". It is clear that the Judge accepted Mr* Winter's evidence as a whole, and ha said nothing to suggest that he rejected this part of it. As appcars from what I have said above, I think the meaning of Mr* Winter's statement is plain. It is the evidence of the Plaintiff's own Sales Manager as to the state of the trade, and if accepted as accurate, as I think it should be accepted, it seems to me completely destructive of the Plaintiff's case on damages.

[34]The materials before the Court leave a good deal to be desired* The parties were no doubt preoccupied with the issue of contract or no contract, and the argument in regard to damages based on Thompson (W.L.) Ltd's. case was perhaps something of an afterthought, as is suggested by the belated (and as I think unnecessary) amendment of the Points of Claim by substituting "a second motor ear" for "the said motor ear" in the first item of damage claimed.

[35]But it was for the Plaintiff to prove that ho did in fact sustain the loss of profit claimed, and this to my mind he wholly failed to do. The mere assertion by Mr. Winter "We have lost sale of a car" is clearly not enough, particularly when read in conjunction with his "can sell all Hillman Minx we can get". Accordingly there was in my view no evidence on which the learned Judge could property hold that the Plaintiff had suffered the damage claimed, and I would allow this appeal.

LORD JUSTICE HODSON : I agree that the appeal should be allowed and with the order proposed on the ground that the Plaintiff, Respondent to this appeal, has failed to prove a loss beyond that which has been recouped by the resale of the motor car in question.

LORD JUSTICE SELLERS : The judgment from which the Defendant, the buyer, appeals found and established that on or about the 29th or 30th June, 1956 the Defendant agreed to buy from the Plaintiff a now Hillman Minx Saloon Motor Car and that on the 5th July, 1956, when the car was licensed and ready for delivery as arranged, the Defendant repudiated the agreement and refused to take delivery because he had found that he could get a better bargain elsewhere for his Commer Van which was to be taken in part payment of the price.

[38]The only question on the appeal is as to the damages the Plaintiff la entitled to receive for the non-acceptance of the car by the Defendant. The Plaintiff claimed the loss of profit on the sale. The Defendant denied that there had been in the circumstances any profit lost and alleged that nominal damages only were recoverable.

[39]The car rejected by the Defendant was put back into the Plaintiff's Showroom and was sold within a week or ten days to another customer at the same fixed retail price. This effective sale resulted in the normal profit to the Plaintiff but he claims that he has nevertheless lost a profit for he would have sold and delivered, but for the Defendant's default, two cars instead of one and would have made two profits instead of one.

[40]Having regard to the nature of this claim singularly little evidence was directed to the issue.

[41]The Plaintiff was the area Dealer for the Rootes Group who manufacture the Hillman Minx cars and was required to sell them at not less than their fixed price for a retail sale. He had only one Hillman Minx in stock but if the Defendant had taken delivery he would have ordered another one and would have expected a replacement within a week or ten days. The Sales Manager said he was certain he would have sold the new purchaser another Hillman Minx if the one in question had not bean available (by reason of the Defendant's default).

[42]A Seller's loss of profit on a sale may clearly directly and naturally result in the ordinary course of events front a buyer's wrongful neglect or refusal to accept and pay for the goods bought. But it may be that the Seller is so circumstanced that he could sell the goods elsewhere either at the same price as the contract price or at some lesser price which would either extinguish or minimise the loss to the Seller and therefore the damages which the defaulting buyer will have to pay.

[43]Learned Counsel for the Defendant placed great reliance on Section 50(3) of the Sale of Goods Act 1893 and submitted that there was an available market for the car at the one fixed or current price, which was also the contract price, and therefore there could be no loss of profit recoverable as that sub-section established the measure of damages.

[44]No evidence was given as to anything the Plaintiff might have done to bring about a resale of the rejected car except that which he did, namely place it in his showroom and await a new buyer. Having regard to his success within ten days the submissions on the meaning of 'available market' seem to me to be somewhat theoretical and academic.

[45]The Act does not attempt to define a market and it may be conceded that one can exist in a variety of circumstances and apart, of necessity, from a defined place but since its trading has to serve as a factor in measuring the damages it must at least be a market in which the Seller could, if ha wished, sell the goods left on his hands. At the time of the Defendant's refusal to accept, the 6th June, 1956, it has not been shown that there was any real market where the rejected oar could have been offered for sale and sold. There was no available market. No doubt the current retail price was known and ascertained but there was no immediate buyer.

[46]The Plaintiff had the duty to act reasonably and mitigate the damages as far as he reasonably could. What ha did resulted in a resale at the contract price but the question is whether that resale mitigated his loss and the same question would arise if a gala could have been made in an 'available market'. The Plaintiff's case is that by reason of the Defendant's non-acceptance of the car ha had bought the Plaintiff has lost the profit ha would have earned and that the resale of the car to another customer did not and could not in the circumstances give him a substituted profit.

[47]He claims that he could have sold a Hillman Minx to the Defendants and another to the new purchaser and made two profits, whereas he has made only one and lost irreplaceably the profit on the Defendant's transaction (or at leant on one of the two transactions).

[48]If a Seller can prove that a profit has beam irretrievably lost on a sale of goods by the buyer's default it would in my opinion be recoverable as damages in accordance with Section 50(2), But where there has in fact been a resale of the goods the Seller has the burden of proving a loss of profit beyond that which on the face of it has been recouped in whole or in part by the resale.

[49]In my view the Plaintiff has failed to give adequate proof of such a loss in this case. The Sales Manager for the Plaintiff said that he had lost the gala of a car but he also said that ha could sell all the Hillman Minx Cars he could get.

[50]It was argued that the statement that ha could sell all the cars he could get ought not to be taken literally but should be qualified in some way. Even if that la so which I see, on the evidence, no reason to concede, it does not establish affirmative evidence that the Plaintiff could get all the Hillman Minx cars he could sell.

[51]If it could be proved that there were in effect unlimited -supplies of Hillman Minx cars and a limited number of buyers in the circumstances in which a dealer was trading then it would appear that the dealer could establish a loss of profit which could not be mitigated. On the other hand moat dealers in cars (and in many other commodities), it might be visualised, either have a quota fixed by their supplier or a supply fixed by their own trading limits governed by their scope of trading. In such a case if in a given trading period all the goods the dealer had available for sale had been sold, or would in all probability be sold, then the fact that one or more purchasers had defaulted and had been or would be replaced by others would not reduce the dealer's maximum profits.

[52]The matter cannot of course be worked out ad infinitum but would be decided on the probabilities of the case and having regard to the nature, extent and circumstances of the dealer's trading. If a dealer has twenty cars available for sale and twenty-five potential buyers he still would make his full profit if he sold the twenty cars notwithstanding that two or three purchasers defaulted.

[53]In Thompson (W.L.) Ltd. v. Robinson (Gunmakers) Ltd . 1955 1 Chancery, page 177, Mr. Justice Upjohn gave damages for loss of profit to dealers who had sold a Vanguard motor car to the Defendants who refused to take delivery. The dealers had returned the vehicle to their Suppliers but the learned Judge decided the case on the basis that the dealers had lest their bargain, that they had sold one car less than they otherwise would have done, which is the Plaintiff's contention here.

[54]It is important to note in that case, page 178: "that in the East Riding of Yorkshire (the transaction actually took place in Hull) at the time of the Contract of Sale there was no shortage of 'Vanguard' models to meet all immediate demands in the locality".

[55]On those facts the learned Judge in my view was right in saying that the Plaintiffs had lost a customer and thereby a profit. There was no point in their keeping the car and awaiting a resale as they could acquire a Vanguard car to meet each purchaser as he presented himself. They could not, in other words, avoid their loss. The reasoning of Lord Justice Hamilton and Lord Justice Buckley in In re Vic Mill Ltd. 1913 1 Chancery, page 465 quoted by the Judge is singularly apt and adaptable to this case. On page 187 Mr. Justice Upjohn states the possible extreme situations* One, where in the case of rejection "if any purchaser fell out there were many waiting to take his place". The other, "But on the assumed facts circumstances had changed in relation to 'Vanguard' motor cars and in March of this year there was not a demand in the East Riding which could readily absorb all the 'Vanguard' motor cars available for sale".

[56]Whether the Plaintiff could have proved a similar situation with regard to the Hillman Minx cars in his area I do not know but I cannot find that it was either admitted or proved. It is for this reason that I would allow this appeal. There are two items in the damage claimed. loss of profit on a car heater and on wheel discs both of which were ordered for the Hillman Minx and for which £7.12s.6d. in all is claimed. These items might stand on a different footing from the loss of profit of £90.2s.6d. claimed for the lose of the sale of the car but no such distinction was made either at the trial or on the Appeal and I would therefore find the Plaintiff entitled to 40s. nominal damages only.

[57]The result is that only nominal damages are recoverable, and I take it the appropriate order would be to vary the order made below by substituting 40s. as the amount of the damages.

[58]MR COLLARD: Yes, ay Lord.

LORD JUSTICE JENKINS : Then, subject to anything that can be said to the contrary, it looks as though the successful Appellant should have the costs here and below.

LORD JUSTICE SELLERS : You cannot resist that, can you Mr. Waldman?

[61]MR WALDMAN: No, my Lord.