Bourke against Bulow.
The court yin trial”on smaiiriesí Üof orderSt<>5 give ot5¿lamef. ñn‘ of getting jury are the proper judges 0f the quan-ca™s soimd-™|^in sum ¡s fixed by the parties themselves.
UPON a motion for a new trial. It appeared that the plaintiff had recovered a verdict in this case, against defendant, for 230/. sterling, for a breach of contract entered into in the year 1780, for delivery of flour and tobacco. The writing was dated 17th of August, 1780, and was in the nature of a note or memorandum, signed by the defendant, for 47,410/. old currency, to be paid in the follow- . . , , . , ,,. mg manner, viz. 23,7051. to be paid m flour, at 500/. tur-renGy, per cwt. and 23,70Si. in tobacco, at 200/. per cwt. This note or memorandum was given or signed, in order to settle the balance of a bond which the defendant had given to the plaintiff, m February, 1730, for the balance of ac-1 , . , , , , . . , , . . counts which had subsisted between the parties, prior to *50that time. The bond was cancelled on the defendant’s sign* ingthe note.
The jury, in estimating the damages, gave the value of the 47,410/. old currency, at the time the contract was entered into, agreeable to the scale of depreciation, and in» terest thereon. This verdict, it was alleged, was not equal to the value of the flour and tobacco, had it been delivered; and, therefore, the present motion for new trial was made, because the jury, it was said, had given less damages than the plaintiff was entitled to.
Rutledge and Pringle, in support of the motion,
argued, that this was an action in nature of a breach of covenant, on a written agreement. That the contract was a specific one •, that is, for the delivery of a certain quantity of pro» duce at a given time. That the defendant had failed in the delivery, and ought to pay the value of those articles, agreeable to the contract, or market price at the time they were to have been delivered. Many cases, they said, had been determined upon this principle, that where a specific: thing was agreed to be delivered at a fixed time, and no price mentioned, and there was a failure; that in every such case, the value of the thing at the time mentioned for delivery, was the measure of damages for the jury. That in this case, however, the price was ascertained and settled, by the parties themselves, to wit, 500/. for every hundred weight of flour, and 200/. for the same quantity of tobacco ; so that the jury could not give more or less than the price stipulated for in the agreement. Calculating the flour and tobacco, then, at these rates, they would have been worth, on the day of delivery, the sum of 494/. sterling, which, with interest from that day down to the finding of the jury, would have amounted to 736/. sterling. That this was evidently the sum to which the plaintiff was legally entitled, and the jury ought not to have given less. This-sum might appear large, and much beyond the value of the 47,410/. at the date of the contract; but it should be remembered, that the contract on the part of the defendant, was a vsliaitary one, and being so, he was bound by it. Even in *51equity, the inequality of a contract freely enter into, is no ground to set it aside. That in all cases where the sum is uncertain, jury may fix damages ; but where the precise sum is fixed and agreed upon by the parties, that very sum, and no other, is the ascertained damages, and the jury are confined to it. 4 Burr. 2228, 9. They compared it to a contract for transferring stock at a day certain, where defendant was bound, though stock had considerably risen. S Bac. 248.
Calhoun and Bay, contra.
This is a motion for a new trial, on account of the smallness of damages given by the jury. There are many cases in the books, for new trials on account of excessive damages, where they have been granted; but few or none, on account of the smallness of damages. It is said, that this is in nature of an action of covenant, for a specific performance, where the sum is fixed and ascertained, and the jury cannot give less. This, however, is not the case. The action is assumpsit for the recovery of 47,410/. old currency, on a note given 17th of August, 1780, for that sum, and which appears to have been the balance of a bond entered into by the defendant in February, 1780 ; and which was on that day taken up and cancelled. If, indeed, it had been an absolute and independent covenant, unconnected with any prior transaction, and not given for the purpose of settling an old debt, the doctrine contended for, arfd the cases cited, might well apply ; but considering the case as it really is, they are totally' inapplicable. What did the defendant owe the plaintiff on the 17th of August, 1780 1 Why, 47,410/. the balance due on the bond. What was this new note taken for ? To secure payment of it. If then, Bourke is paid the sum, with interest, will he not be fully paid off and satisfied? Surely he will: he cannot in justice or conscience demand more, and this the jury have given him. It is admitted, that this was the sum due on the 17th of August, 1780 ; yet, say they, here was a new bargain. This sum was not only to be paid, but it was to be paid in a certain way — .not in money, but in flour and tobacco ; which, if they had beciv *52delivered, the plaintiff would not only have been paid, but he would have had 4944 besides, as a clear profit. This is what the law calls a catching bargain ; which neither a court of law, or equity, will countenance. 1 Fern. 467. 2 Fern. 402. 1 At.k. 351, 2. The jury, therefore, have exercised ' a very proper discretion, in giving a verdict for what was really due, with interest upon it. And to have given more, would have been an act of injustice. It is clear law, that in an action of assumpsit, sounding in damages, (supposing this to be one of that kind,) the jury have a right to give what they think just, in proportion to the loss the party sustains, by violation of the contract. 2 Bac. 4. In the present case, there is no real loss ; for the jury have given the value of the 4?',4104 agrdeable to’ the depreciation scale, which was worth 1604 11s. sterling, and interest to the day of the verdict, making together 2304 sterling. And if no loss was sustained, then surely the plaintiff was not entitled to any other damages, after being made whole. Again, it is laid down, that in all actions sounding in damages, the jury have a discretionary power to give what they think proper. • And though in contracts, the very specified, sum agreed on is usually given, yet, if there appears any circumstances of hardship, fraud, deceit, or the like, jury may proportion and mitigate the damages accordingly. 2 Bac. 4. Many late authorities confirm this doctrine. Say. Law of Dam. 44, 45, 46 and 47. 2 Str. 1140. 2 Barn. 129. Law of Dam. 19f, 8, 9. 205. The case of Pledger v. Wade, (ante) was also relied on, as in point. Upon the whole, they concluded, that full justice had been done to the plaintiff in the action, and that the court would not, they hoped, set afloat this verdict, to give the plaintiff another chance of getting higher damages. That to set an example of this kind, would be inviting, in fact, every man who did not get as high damages as he wished, to apply for another trial.