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Siu Ling v. Wong Sum-fai

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1. In the event we are concerned with the assessment of damages against the 2nd Defendant for breach of warranty of authority. The agreement into which he entered was for the sale of a shop at a price of $1,470,000. It is contended on his behalf that the Plaintiff became aware almost immediately that the owner denied the 2nd Defendant's authority to sell and that, accordingly, he ought to have taken steps to mitigate his damage by purchasing elsewhere. Indeed, it is said that there was evidence

Case No.
Court
Date—
Judge—
Case Document
100%Judiciary

CACV000070A/1981

IN THE COURT OF APPEAL 1981, No. 70
(Civil)

BETWEEN
SIU LING Appellant
(1st Defendant)
and

WONG SUM-FAI Respondent
(Plaintiff)
BETWEEN WONG SUM-FAI Cross Appellant
(Plaintiff)
and

SIU LING Cross 1st Respondent
(1st Defendant)
SIU WAI Cross 2nd Respondent
(2nd Defendant)

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Coram: Sir Alan Huggins, V.-P., Zimmern and Barker, JJ.A.

Date of Judgment: 2nd October 1981

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. In the event we are concerned with the assessment of damages against the 2nd Defendant for breach of warranty of authority. The agreement into which he entered was for the sale of a shop at a price of $1,470,000. It is contended on his behalf that the Plaintiff became aware almost immediately that the owner denied the 2nd Defendant's authority to sell and that, accordingly, he ought to have taken steps to mitigate his damage by purchasing elsewhere. Indeed, it is said that there was evidence of the availability of another shop next door to that which was the subject matter of the agreement. Counsel for the Plaintiff, on the other hand, submits that his client was under no duty to accept the assertion that the 2nd Defendant had no authority to sell, was justified in taking that matter to trial and could, therefore, properly claim the difference between the contract price ($1,470,000) and the value of the property at the date of judgment ($2,978,750), namely $1,508,750.

2. The measure of damages for breach of warranty of authority was stated by Lord Esher in Firbank's Executors v Humphreys (1886) 18 Q.B.D. 54, 60 as follows :

"The damages, under the general rule, are arrived at by considering the difference in the position he would have been in had the representation been true, and the position he is actually in, in consequence of its being untrue."

That is a specific application of the general principle stated in Johnson v Agnew 1979 2 W.L.R. 487, 499E where Lord Wilberforce said :

"The general principle for the assessment of damages is compensatory, i.e. that the innocent party is to be placed, so far as money can do so, in the same position as if the contract had been performed."

He went on :

"Where the contract is one of sale, this principle normally leads to assessment of damages as at the date of the breach - a principle recognised and embodied in section 51 of the Sale of Goods Act 1893. But this is not an absolute rule : if to follow it would give rise to injustice, the court has power to fix such other date as may be appropriate in the circumstances.
          In cases where a breach of a contract for sale has occurred, and the innocent party reasonably continues to try to have the contract completed, it would to me appear more logical and just rather than tie him to the date of the original breach, to assess damages as at the date when (otherwise than by his default) the contract is lost."

Had the representation in this case been true the Plaintiff would have acquired the shop at a price of $1,470,000, but the position at the date of the trial was that he would have had to pay $2,978,750 for a similar property. As it seems to me the only question is whether it was reasonable for the Plaintiff to institute proceedings rather than to accept that the agreement had been made without authority and to go into the market for alternative accommodation without delay. The Plaintiff wanted the contract premises: I do not think it matters that the pleader initially did not ask for specific performance. It is true that the 1st Defendant told him on her return from abroad that the agreement had been made without her authority, but I do not see why he should be obliged to believe her assertion: as in Godwin v Francis (1870) L.R.5 C.P. 295 there was ground for suspecting that the defendants might be in collusion. In that case interrogatories were delivered and both the alleged principal and the alleged agent denied the agency on oath. Here the alleged principal would probably have denied the agency if interrogated, but the alleged agent was denying that he had held himself out as the 1st Defendant's agent and his denial has led to the Plaintiff's continuing the action and suffering additional loss, a loss which he should reasonably have contemplated.

3. Another way of looking at the matter is to be found in Bowstead (14th Edition) 386 Article 122(2):

"Where a contract is repudiated by the person on whose behalf it was made on the ground that it was made without his authority, such loss is prima facie the amount of damages that could have been recovered from him in an action if he had duly authorised and subsequently refused to perform the contract, together with the costs and expenses (if any) incurred in respect of any legal proceedings reasonably taken against him on the contract."

Support for that proposition is to be found in Godwin v Francis (supra) at p.306. Suppose, therefore, that the 1st Defendant had authorised the 2nd Defendant to contract on her behalf and that she had refused to convey the shop. An action would have lain against her for specific performance or for damages in lieu. On the authority of Wroth v Tyler 1974 1 Ch. 30 and Malhotra v Choudhury 1978 3 W.L.R. 825 the value of the property could properly have been assessed as at the date of judgment. In the present case there was no suggestion that the Plaintiff was guilty of any delay in pursuing his claim.

4. I conclude that the Plaintiff is entitled to damages against the 2nd Defendant in the sum of $1,508,750 and would enter judgment accordingly.

Zimmern, J.A. :

5. Mrs. Siu Ling the 1st defendant and appellant returned to Hong Kong from America after a short visit there with her husband on the night of 28th June 1979 and was met there by Mr. Siu Wai the 2nd defendant said to be a relative in that he was the husband of the 1st defendant's "sworn sister". In any event he was a good friend of the 1st defendant's husband. He told her that he had that day entered into a provisional agreement in writing signed by himself as attorney to sell her property being Shop A on Ground floor of Yue Wah Building No. 15 Cheung Sha Wan Road Kowloon to the plaintiff Wong Sum Fai for $1.47 million and handed her the agreement.

6. It came about this way. The plaintiff respondent was in the shoe business and was then minded to purchase a shop space in Cheung Sha Wan Road area for that business. A few weeks before the agreement he noticed a sign board outside No. 15 reading "FOR LET or SALE" and underneath a telephone number. He dialled that number and met up with a Mr. CHAN Wai a decorator. He told the plaintiff that the price was $1.5 million. The plaintiff inspected the premises and there was some bargaining between them. Somehow CHAN Wai mentioned the name of the 2nd defendant to the plaintiff as a relative of the owner. It turned out the plaintiff's brother was an old acquaintance of his. A meeting was arranged and no doubt after further meetings the 2nd defendant signed the provisional agreement I have mentioned.

7. The plaintiff was told the next day that the 1st defendant was not selling the property. There was a meeting of those involved a few days later, no agreement was reached and on 9th November, 1979 the plaintiff issued his writ against the 1st and 2nd defendants with the Statement of Claim endorsed thereon. He claimed as against both damages for breach of the agreement in writing signed by the 2nd defendant on behalf of the 1st defendant. There is mention in the Statement of Claim of a deposit of $50,000 paid by the plaintiff pursuant to agreement by way of a cheque made payable to the 1st defendant. Apparently the 2nd defendant that night handed the cheque to the 1st defendant who refused to accept it and that cheque was never presented for payment.

8. It is important to note the defences served and filed by the 1st and 2nd defendants. The 1st defendant was bold. She admitted that the 2nd defendant signed the agreement but denied that she had given the 2nd defendant any authority, express or implied to sell that property or any property on her behalf and that she had ever held out that he was such an agent. The 2nd defendant denied that he had warranted or held himself out to be the 1st defendant's agent.

9. The plaintiff on 26th February 1981 i.e. some 15 months after issue of the writ obtained leave to amend his Statement of Claim by adding a claim for specific performance and in the alternative damages against the 1st defendant. I set out in full a new paragraph 11 :

"The defendants now allege that the 2nd defendant was not authorised by the 1st defendant to enter into the said memorandum (which allegation is denied) and if so the 2nd defendant is liable to the plaintiff in damages for breach of warranty of authority."

10. The matter was tried before Power, J. in March 1981 and on the 4th May 1981 he delivered his judgment and ordered specific performance and certain consequential relief against the 1st defendant and costs against the 1st and 2nd defendants.

11. The learned judge found that:

(1) there was no evidence which would allow him to infer that the 2nd defendant was the authorised agent of the 1st defendant
(2) but that a certain CHAN Wai was such an authorised agent and he had by his conduct adopted the agreement signed by the 2nd defendant hence the 1st defendant was bound.

12. The 1st defendant appealed and the plaintiff cross appealed on the grounds that 1) on the evidence the judge ought to have found that the 2nd defendant was the 1st defendant's agent for the sale of the property and 2) in the event the plaintiff was not entitled to succeed against the 1st defendant, the 2nd defendant should be held liable for damages for breach of warranty of authority.

13. Before us, we allowed first the appeal of the 1st defendant and secondly the cross appeal of the plaintiff on the liability of the 2nd defendant and reserved the matter of damages.

14. Mr. Swaine for the plaintiff on the cross appeal submitted that by his breach of warranty of authority the 2nd defendant steps into the shoes of the 1st defendant therefore the measure of damage should be the difference in the marked price of the property at the date of judgment and the contract price plus consequential relief. That difference on the evidence and as set out on the grounds of appeal would be $2,978,750 less $1,470,000, i.e. $1,508,750.

15. For the first proposition he relied on Article 122(1) and (2) of 14th Edition of Bowstead On Agency. This reads :

"(1) The measure of damages for breach of warranty of authority is the loss which the parties should reasonably have contemplated as liable to result from the breach of warranty.
(2) Where a contract is repudiated by the person on whose behalf it was made on the ground that it was made without his authority, such loss is prima facie the amount of damages that could have been recovered from him in an action if he had duly authorised and subsequently refused to perform the contract, together with the costs and expenses (if any) incurred in respect of any legal proceedings reasonably taken against him on the contract."

16. He referred us to Godwin v. Francis (1870) 5 LR. CP.295 wherein at pages 306 and 307 Bovill C.J. said

"The case seems to me to turn on whether these damages could have been recovered from the vendors if the defendant had had authority from them, and they had refused to fulfil their contract, and we must assume that they would have been able to make a good title if they had chosen to do so. I am not aware of any decision in which it has been held, that where a man having a good title refuses to convey according to contract, he is not liable to compensate the other party for the loss of his bargain as well as for any expenses he may have actually incurred; the contrary is laid down in Engell v. Fitch (1), and I do not see that Sikes v. Wild (2) is inconsistent with it, for in that case there was a failure of title. I think, therefore, that the defendant is liable for the difference between the contract price and the market value of the estate, and that the price at which it was re-sold is prima facie evidence of its market value."

17. I shall return to this case later.

18. He then referred us to three other cases, namely:

Wroth v. Tyler (1974) 1 Ch. 30
Malhotra v. Choudhury (1978) 3 WLR 825
Johnson v. Agnew (1979) 2 WLR 487

19. Wroth v. Tyler concerns a purchaser's claim for specific performance of a sale and purchase agreement covering a Norfolk bungalow. The vendor's wife had entered on the Land Register a notice of her rights of occupation under a Matrimonial Act. Megarry, J. held it would be unreasonable to order specific performance and awarded damages in lieu. He summed up the matter thus at page 57.

"In the present case, if the contract had been performed, the plaintiffs would at the date fixed for completion have had the house, then worth £7,500, in return for the contractual price of £6,000. If in lieu of the house they had been paid £1,500 damages at that date, they could, with the addition of the £6,000 that they commanded, have forthwith bought an equivalent house. I am satisfied on the evidence that the plaintiffs had no financial resources of any substance beyond the £6,000 that they could have put together for the purchase of the defendant's bungalow, and that the defendant knew this when the contract was made. The plaintiffs were therefore, to the defendant's knowledge, unable at the time of the breach to raise a further £1,500 in order to purchase an equivalent house forthwith, and so, as events have turned out, mitigate their loss. Today, to purchase an equivalent house they need £5,500 in addition to their £6,000. How, then it may be asked, would the award today of £1,500 damages place them in the same situation as if the contract had been performed? The result that would have been produced by paying £1,500 damages at the date of the breach can today be produced only by paying £5,500 damages, with in each case the return of the deposit. On facts such as these, the general rule of assessing damages as at the date of the breach seems to defeat the general principle, rather than carry it out. In the ordinary case of a buyer of goods which the seller fails to deliver, the buyer can at once spend his money in purchasing equivalent goods from another, as was pointed out in Gainsford v. Carroll (1824) 2 B. & C. 624, and so the rule works well enough; but that is a very different case. It therefore seems to me that on the facts of this case there are strong reasons for applying the principle rather than the rule."

20. He decided on authority under Lord Cairn's Act that he had power to assess damage on the value of the house at the date of judgment.

21. Malhotra v. Choudhury was another case concerning assessment of damages in lieu of specific performance of sale and purchase of a house.

22. The Court of Appeal in that case applied the reasoning of Megarry, J. in Wroth v. Tyler and at p. 846 D. Cumming-Bruce L.J. said

"I cannot accept that these criticisms are valid. I would be content to adopt with respect the reasoning and conclusions of Megarry J. in Wroth v. Tyler (1974) Ch. 30. The equitable remedy of specific performance has features markedly different from damages at common law for breach of contract. But there is an analogy at common law to the equitable remedy of specific performance. This is to be found in the action in detinue. The remedies in that action available are well summarised in the note in The Supreme Court Practice (1976), to R.S.C., Ord. 13 r. 3 and are explained by Diplock L.J. in General and Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd. (1963) 1 W.L.R. 644, 648, 649.
As Diplock L.J. explained, the action in detinue partakes of the nature of an action in rem in which the plaintiff seeks specific restitution of his chattel. In this action where an order for a writ of specific delivery can be made, the plaintiff has always been entitled instead to claim its value in money assessed at date of judgment.
That distinguishes the remedy of damages in detinue from damages for conversion and the dictum to the contrary in the judgment of Lord Goddard C.J. in Sachs v. Miklos (1948) 2 K.B. 23, 38 is unnecessary, is too wide, and is based on the headnote in Rosenthal v. Alderton & Sons Ltd. (1946) K.B. 374, which is not in accordance with the last paragraph of the judgment in that case.
Thus where the common law is concerned with the remedy of specific restitution of a chattel, it does seek to restore the plaintiff as completely as money can to the position he would have been in if he had the chattel delivered up on the date of judgment. To this end the value of the chattel is assessed at the date of the judgment and not at the date of breach."
and at p.848
"So I come to the third issue in dispute which is the question of delay. Counsel have agreed that they would prefer this court to determine whether the plaintiff's delay in bringing these proceedings to a conclusion should be taken into account by way of reducing the damages to which he is entitled on the ground that during the time the plaintiff has been dragging his heels through the law courts, if he has been dragging them, the price level of real property has been steadily moving upwards; and so if, for example, 12 months passed by, which could have been avoided by greater exertion on the part of the plaintiff or his legal advisers, the damages have been enhanced by that very delay.
I do not think at this juncture it is necessary for me - I certainly would be very reluctant to do it - to begin a careful examination of every step in the proceedings stating the dates of every affidavit or summons and exhibiting expressly the intervals of time that have passed before the next step in the action. Suffice it to say, the plaintiff undoubtedly was engulfed in tactical and legal problems of substantial difficulty, as is evidenced by the fact that the unfortunate plaintiff is now having the privilege of paying for a second appearance of his legal advisers in the Court of Appeal.

Nonetheless, when all is said and done, it is unfair to the defendant that the deliberation with which the plaintiff moved from the middle of 1975 until he issued the present proceedings in January 1977 should be allowed to enhance the damage which the defendant has to pay the plaintiff if the price level of real property has risen during that period. For my part I would think that justice is done between them by holding that the plaintiff did not sufficiently mitigate his damage by proceeding with greater celerity in the various and difficult legal convolutions that he has been forced to undergo. The right order is that, for purposes of valuation of Novar and the loss sustained by the plaintiff by the failure of the defendant to honour the contract for sale, the terminal date by reason of delay should be moved back from October 20, 1977, to October 21, 1976. Therefore the task of the assessment of damages is to arrive at the value on June 4, 1974, and the value on October 21, 1976, and to award the plaintiff as one of the items in his damages the difference between those two sums."

23. In the House of Lord case of Johnson v. Agnew Lord Wilberforce reviewed both the above mentioned cases and at pages 499 and 500 15 so said

"In Wroth v. Tyler, however, Megarry J., relying on the words "in lieu of specific performance" reached the view that damages under the Act should be assessed as on the date when specific performance could have been ordered, in that case as at the date of the judgment of the court. This case was followed in Grant v. Dawkins (1973) 1 W.L.R. 1406. If this establishes a different basis from that applicable at common law, I could not agree with it, but in Horsler v. Zorro (1975) Ch. 302, 316, Megarry J. went so far as to indicate his view that there is no inflexible rule that common law damages must be assessed as at the date of the breach. Furthermore, in Malhotra v. Choudhury (1978) 3 W.L.R. 825 the Court of Appeal expressly decided that, in a case where damages are given in substitution for an order for specific performance, both equity and the common law would award damages on the same basis - in that case as on the date of judgment. On the balance of these authorities and also on principle, I find in the Act no warrant for the court awarding damages differently from common law damages, but the question is left open on what date such damages, however awarded, ought to be assessed.
(2) The general principle for the assessment of damages is compensatory, i.e. that the innocent party is to be placed, so far as money can do so, in the same position as if the contract had been performed. Where the contract is one of sale, this principle normally leads to assessment of damages as at the date of the breach - a principle recognised and embodied in section 51 of the Sale of Goods Act 1893. But this is not an absolute rule : if to follow it would give rise to injustice, the court has power to fix such other date as may be appropriate in the circumstances.
In cases where a breach of a contract for sale has occurred, and the innocent party reasonably continues to try to have the contract completed, it would to me appear more logical and just rather than tie him to the date of the original breach, to assess damages as at the date when (otherwise than by his default) the contract is lost. Support for this approach is to be found in the cases. In Ogle v. Earl Vane (1867) L.R. 2 Q.B. 275; L.R. 3 Q.B. 272 the date was fixed by reference to the time when the innocent party, acting reasonably, went into the market; in Hickman v. Haynes (1875) L.R. 10 C.P. 598 at a reasonable time after the last request of the defendants (buyers) to withhold delivery. In Radford v. de Froberville (1977) 1 W.L.R. 1262, where the defendant had covenanted to build a wall, damages were held measurable as at the date of the hearing rather than at the date of the defendant's breach, unless the plaintiff ought reasonably to have mitigated the breach at an earlier date.
In the present case if it is accepted, as I would accept, that the vendors acted reasonably in pursuing the remedy of specific performance, the date on which that remedy became aborted (not by the vendors' fault) should logically be fixed as the date on which damages should be assessed."

24. The trial judge having ordered specific performance did not deal with the matter of damages and that task now falls upon us. For myself I can gather little from the judgment to assist me in this matter.

25. In my view it is important to decide firstly whether the plaintiff's action against the 1st defendant was reasonable and if yes whether he ought to have discontinued at any stage. On the Statement of Claim both as issued and after amendment it is clear that the burden was squarely on the plaintiff to prove as against the 1st defendant that the memorandum in writing relied on by the plaintiff was signed by her authorised agent. No act of part performance was pleaded in the case.

26. Paragraph 4 of the Claim reads :

"On signing of the said memorandum, the 2nd defendant held himself out as the authorised agent or attorney of the 1st defendant for the sale of the said premises. Alternatively, the 2nd defendant warranted to the plaintiff that he was authorised by the 1st defendant to sell the said premises and to enter into the agreement for sale and purchase on her behalf."

27. I have referred to the separate defences served by the defendants. The 1st defendant denied the agency and did not even bother to plead that the "agreement" sued on was merely a provisional agreement and therefore unenforceable. The 2nd defendant made the provisional aspect of the agreement the main issue in his defence and denied that he was the 1st defendant's agent or ever warranted that he was such an agent. His case was that the agreement was only provisional subject to adoption by the 1st defendant. At the close of the pleadings and remembering at this stage that the claim was in damages only, it much have struck the plaintiff and his advisers that the 2nd defendant had virtually admitted his lack of authority when signing in his capacity as "vendor's attorney" thereby ensuring his own liability in damages should the agreement be found enforceable. Would anyone in his sound mind thus plead if in fact he had the authority to so sign. The 2nd defendant pleaded the plaintiff's duty to mitigate his damage and I set out paragraph 8 of his defence :

"In the premises the said 'Provisional Agreement' never came into effect. In the alternative if (which is denied) it did come into effect it was repudiated the next day, the said sum of $100,000.00 fixed by the said 'Provisional Agreement' was a penalty and the plaintiff suffered no true loss. Further the plaintiff suffered no loss of use of his deposit and/or the balance of the purchase price. Further or in the alternative the plaintiff should have mitigated his damages by accepting back the said cheque and by making use of the deposit moneys and the balance of the purchase price."

Regardless, the plaintiff some 15 months later obtained leave to include a claim for specific performance against the 1st defendant. No doubt he knew that the property market had gone up substantially, but the real question is was he then in any better position to prove that agency. In my view the answer was no because he failed to so prove at the trial and the Judge found that there was no evidence on which he could have so found. I find that after the close of the pleadings the plaintiff's further ventures against the 1st defendant was such a piece of opportunism and speculation that it would be unjust to make the 2nd defendant accountable for the plaintiff's failure.

28. A similar point arose in Godwin v. Francis. The plaintiff there as buyer sued 4 joint owners of an estate which the defendant as agent contracted to sell on their behalf as agents. He failed in that suit then sued the defendant for misrepresentation of authority. In assessing damages which included a claim for the expenses of the first suit Bovill C.J. said at page 306 :

"It would be for the jury to say what costs have been so reasonably incurred : Hughes v. Grasme(1); and we have now to decide this upon the evidence in their place, and I am clearly of opinion, as I have said, that the action was reasonably and properly commenced. The plaintiff was entitled, at least, to the distinct denial by the defendant himself of his authority before he gave up his claim to the estate, and I find no such denial either in the defendant's letter of the 28th of November or elsewhere.
The question, then, is whether the action ought to have been continued after certain interrogatories had been answered; it seems to me, that after the plaintiff had obtained distinct denials on oath from all the vendors, including the defendant, that the latter had authority to make the contract, he ought to have discontinued his proceedings; instead of that, he determined to go on with them, relying on another ground, viz., the advertisements which had been issued with the vendor's authority. He failed in his subsequent proceedings, because he acted on a wrong view of the law, and not because he was mistaken in respect of the authority in fact given by the vendors to the defendant. I think, therefore, that the plaintiff is not entitled to recover any costs incurred after the interrogatories had been answered and the answers had been considered by the plaintiff's legal advisers."

29. The next question in doing justice in all the circumstances of the case is Which is the proper date to fix the damage? There could be no order for specific performance against the 2nd defendant. His liability is purely compensatory in money. Even as against an agent for breach of warranty of authority given the right set of facts a case could be made out to fix the date as at the date of judgment such as in a Wroth v. Tyler situation where at the date of breach the market having risen and the plaintiff not having the wherewithal or facility to enter the market and pay the contract price plus the rise for equivalent premises and there and then mitigate his damages. He would then have to wait till the award of damages. Is this such a case? The answer in my view is no. The agreement was repudiated the very next day. The plaintiff was in a position to buy an equivalent property and I quote from his evidence under cross examination :-

Q. Did you have the necessary finance?
A. Yes.
Q. Could you have afforded $2 million have finance a purchase of that amount?
A. If the market value was $2 million I believe the bank would help me.
Q. What if it is $3 million?
A. I don't know - bank would have to answer."

In applying Johnson v. Agnew to the facts of this case I cannot and do not accept that the plaintiff acted reasonably in amending his pleadings and changing course for the remedy of specific performance at such a late stage. By leaving his claim in damages only for over a year he must have been assumed to have accepted the defendant's repudiation of the contract and I have described the amendment to include specific performance as it were reviving the contract as a bit of opportunism.

30. The principles laid down by Lord Wilberforce in Johnson v. Agnew at pages 491 and 492 are in point :

"First, in a contract for the sale of land, after time has been made, or has become, of the essence of the contract, if the purchaser fails to complete, the vendor can either treat the purchaser as having repudiated the contract, accept the repudiation, and proceed to claim damages for breach of the contract, both parties being discharged from further performance of the contract; or he may seek from the court an order for specific performance with damages for any loss arising from delay in performance. (Similar remedies are of course available to purchasers against vendors.) This is simply the ordinary law of contract applied to contracts capable of specific performance.
Secondly, the vendor may proceed by action for the above remedies (viz. specific performance or damages) in the alternative. At the trial he will however have to elect which remedy to pursue.
Thirdly, if the vendor treats the purchaser as having repudiated the contract and accepts the repudiation, he cannot thereafter seek specific performance. This follows from the fact that, the purchaser having repudiated the contract and his repudiation having been accepted, both parties are discharged from further performance."

31. It seems to me that the contract was aborted within a matter of days from its execution if not the very next day and at the latest at the close of pleadings. He had a duty to mitigate his damages and he was in a position to so mitigate having the finance. In Malhotra v. Choudhury the rule of mitigation of damages was also applied by reason of the plaintiff's delay in bringing his action.

32. If the case had gone to trial without a claim for specific performance against the 1st defendant I venture to think that the proper measure of damage against either defendants would be the then true value of the property, i.e. $1.5 million less his bargain of $1.47 million. He lost the value of that bargain and I would award $30,000 damages against the 2nd defendant.

Barker, J.A. :

33. I agree with the Vice-President and would award damages in the sum of $1,508,750.

2nd October 1981

Representation:

(1) Law Rep. 3 Q.B. 314; in error, Law Rep. 4 Q.B. 659.

(2) 4 B. & S. 421; 32 L.J. (Q.B.) 375.

(1) 33 L.J. (Q.B.) 335.