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I respectfully dissent from any suggestion of anomaly in the judgment of Bramwell, B., in Chinery v Viall (1860) 5 H & N 288. I understand the measure of damages in contract and tort to be so much as is necessary to put the plaintiff in the same position (so far as money can) as that where he would have been if he had not been injured by the defendant. I believe it to be this measure which his Lordship expressed at 295, when he asserted that a party "may maintain an action; but only for the real damage sustained ... [so that] a man cannot by merely changing the form of action entitle himself to recover damages greater than the amount to which he is in law entitled, according to the true facts of the case and the real nature of the transaction". (Conversely, does not the common law's adoption of this measure explain why the damages, awarded for the conversion of a bill of exchange, are generally equal to the face value of the bill, rather than the intrinsic value of the dull paper, ink and words which it comprises and why this form of action is generally no less advantageous than the common count of money had and received?)

In my respectful opinion, further justification of the judgment is to be found in the "fundamental principle that one may not at the same time approbate and reprobate" (Howard v. Howard [1965] P. 45 at 73B per Simon, P.). Since the sheep had not been delivered to the plaintiff, he could prove his property in, and consequent right to possess, them only by reliance on (approbation of) the contract between him and the defendant by which they were sold to him. Therefore he could not simultaneously disown his obligation under (reprobate) the contract by refusing to acknowledge that he would have had to pay for the sheep, if they had been delivered to him. In other words, "qui sentit commodum, sentire debet et onus" (2 Inst. 489).

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From: Andrew Tettenborn
To: Gerard McMeel; Gordon Goldberg
Cc: restitution@maillist.ox.ac.uk
Subject: Re: RDG: Retention of Title in Contracts of Sale of Goods
Date: 22 February 1999 15:40

This is a problem that's arisen before, albeit in a slightly different context. In the notorious case of Chinery v Viall (1860) 5 H & N 288 A sells goods to B, causing property to pass to B even tho' B has neither taken delivery of the goods nor paid for them. A then sells & delivers the same goods to C, passing title to C. B sues A for conversion, claiming the full value of the goods and declining to give any credit for the price he hasn't paid (and now won't have to pay since A can't come up with the goods). This is nice work if you can get it: but how do you stop B in his tracks? The court then hummed and hahed before saying "Oh well, there must be an anomalous exception to the general rule of conversion damages". No doubt these days it would do things differently.

AT