Maple(1). Although a difference in the cause of action or in the procedure will not prevent an estoppel, the facts must have been actually inquired into and decided upon: Reed v. Jackson (2); Routledge v. Hislop(3). Although the question of reduction of price was raised in the Magistrate's Court, it was not in fact adjudicated upon. The Magistrate held, first, that the defendant had no right to reject, and, secondly, that there was no right, in the action suing for the price, to give evidence of bad quality in reduction of the price. He held, practically, as a matter of procedure, that he was not entitled to go into the question. The nonsuit on the counterclaim shows that he did not intend to adjudicate on the question in the original action; he left it open to be dealt with in a cross-action.

[STOUT, C.J.--Then the defence ought to have been withdrawn.]

There is no pleading in the Magistrate's Court.

[STOUT, C.J.-No, but still the defence might have been withdrawn.]

The only way to read the judgment, in regard to the quality, is that the claim for a reduction on that ground was dismissed without prejudice. In Seymour v. Nosworthy(4) a bill dismissed in equity without prejudice was held to be no bar either at law or in equity. An estoppel must be certain; it must be specially pleaded by the defendant, and the burden of proof is on him: the difficulty in construing the judgment of the Magistrate, therefore, makes against the appellant. As to the damages, even if the question of a reduction for general damages was res judicata, the judgment must stand as regards special damages other than what could have been claimed by way of reduction of price.

[STOUT, C.J.—The agreement as to damages makes a difficulty. What do you suggest can be allowed as special damages?]

The damages for loss of time and legal expenses, for which £4 was claimed.

[STOUT, C.J.-But, if there was a final decision that there

(1) 18 C.B. N.S. 255, 270.

(2) 1 East, 355.

(3) 2 E. & E. 549; 29 L.J. M.C. 90. (4) 1 Ch. Ca. 155.

was no breach of warranty, then that takes away the foundation for special damage as well as that for general damage or reduction of price.]

That must be so, no doubt. As to the general measure of damage, and the distinction of what is special: Mayne on Damages(1); Bullen and Leake's Precedents of Pleadings(2); Drummond v. Van Ingen(3); Mackie v. Bannister(4). Here, on the particulars, there was something which was special. On the agreement to enter up judgment for the whole amount, it is not open to say that there was no evidence of special damage.

Skerrett, in reply:

The respondent is precluded as to the £4: first, because he is estopped by the finding of the Magistrate that there was no warranty and no breach of warranty; secondly, because loss of time and legal expenses cannot possibly be recovered as special damage; and, thirdly, because there is no evidence of special damage.

STOUT, C.J.:—

I do not think it is necessary to reserve my decision in this case.

I do not know that, in allowing the appeal, justice will be done to the parties. I think it very probable that the respondent may suffer an injustice. That is, perhaps, however, the fault of himself or of his solicitor, or it may be the fault of the Magistrate. That must depend upon how the case was shaped before the Magistrate. I cannot therefore say who is to blame, but it seems probable that an injustice will be done.

I have first to deal with the reasons given by his Honour the District Judge. It is admitted by Mr. Gully that the reasons given by him cannot be supported. They were evidently given under a misapprehension as to the meaning of subsection 4 of section 54 of "The Sale of Goods Act, 1895." That subsection merely crystallizes into the form of

71

S.C.

1899.

CREAVEN

v.

MILLER.

S.C.

1899.

CREAVEN

v.

MILLER.

statute law what has been the law for fifty-eight years-that
is to say, since the decision in Mondel v. Steel(1). If there is
a sale with a warranty, and a breach of the warranty, the
buyer has two remedies: he may pay the price, and after-
wards bring an action against the seller claiming both general
and special damages; or, if he does not choose to pay the
price, he can set up the breach of warranty in an action
against him for the price, and obtain a diminution of the price
by the difference in value between what he contracted for and
what he got, and by counterclaim or in a separate action he
can claim as further damages any special damage which he
may have suffered. The District Judge has assumed the
meaning of the subsection to be that, if the buyer has been
sued and has set up the breach of warranty and claimed a
diminution of price, and had a decision against him on the
question of breach of warranty, that then the subsection allows
him nevertheless to bring a new action upon the same alleged
breach of warranty, and that there will be no estoppel. In
that he was wrong.
If there has been a decision that there
was no warranty, that is a decision on the point of warranty
or no warranty, and a decision once for all. The case of
Flitters v. Allfrey(2) shows how a fact once litigated between
the parties and decided is binding on them, and that there
is an estoppel even though the second case be in a differ-
ent Court and in a different form of action. The District
Judge has therefore misapprehended the meaning of section 54
of the Act.

The sole question, therefore, which I have to decide is what is the effect of the Magistrate's judgment. The Magistrate seems to have misapprehended the question to be decided, and to have come to an erroneous decision upon the point before him. His decision, however, whatever it was, is final and conclusive. There was an appeal, but it was struck out on a technical point. The decision,. therefore, stands. The only question, therefore, is, what did the Magistrate decide? If I find that he did decide either that there was no warranty or that there was no breach of warranty, then (1) 8 M. & W. 858; 10 L.J. Ex. 426. (2) L.R. 10 C.P. 29.

66

that disposes of the case, both as to the general damages and as to the special damage, because the special damage, just as much as the general damages, depends upon whether the respondent is entitled to set up a breach of warranty. What, then, did the Magistrate decide? With regard," he says, "to the condition of the onions, there is not sufficient proof "that they were not in fair condition when bagged for the "defendant, and the absence of that proof is due to the fact that the defendant sent them to Wellington before making any examination as to their condition on delivery. "I must therefore give judgment for the plaintiff for the "amount claimed." That is to say, he gave judgment for the plaintiff for the full amount claimed because he held that there was no proof before him of any breach of warranty. That, in my opinion, was a decision that there had been no breach of warranty. If it was for want of evidence which might have been given, that is unfortunate; but it amounts nevertheless to a decision that there had been no breach of warranty. It is not a case of refusing to decide a point, and leaving it to be litigated in another proceeding. The Magistrate was called upon to decide whether there had been a breach of warranty, and he held that there had not. It appeared afterwards that he was wrong, but I cannot help that his decision was final and conclusive.

In my opinion, therefore, the District Judge was wrong in supposing that section 54 of the Sale of Goods Act gave a new right of litigating the same matter over again; and, the Magistrate having given a decision on the question of breach of warranty, there is an estoppel.

I must therefore allow the appeal.

As I have already said, if there was no breach of warranty, then not only can there be no general damages, but there can be no special damage.

It seems clear that an injustice has been done, though I am not saying who is to blame-whether it is the Magistrate, or the counsel, or the party. But I am not sitting here to redress all grievances, but only to decide points of law.

S.C.

1899.

CREAVEN

v.

MILLER.

S.C.

1899.

CREAVEN

V.

MILLER.

As the respondent has probably suffered an injustice, I shall only allow £7 7s. costs.

Appeal allowed.

Solicitor for the appellant: J. H. Hankins (Palmerston North).

Solicitor for the respondent: A. S. Baker (Palmerston North).

S.C.

IN BANCO.

WALL v. THE COMMISSIONER OF STAMPS.

WELLINGTON. Revenue--Stamp Duty-Fine-Time for Presentation-Computation-Last Day falling on Sunday-" The Stamp Act 1882 Amendment Act, 1885," Section 4" The Interpretation Act, 1888," Section 24, Subsection 1.

1899. August 16.

STOUT, C.J.

Subsection 2 of section 4 of "The Stamp Act 1882 Amendment Act, 1885," provides that, when an instrument is presented to be stamped more than one month and less than three months after execution, it may be stamped on payment of a fine of twenty-five per centum, and that, if it is presented more than three months after execution, it may be stamped on payment of a fine of one hundred per centum, on the amount of the duty payable. Subsection 1 of section 24 of The Interpretation Act, 1888," provides that, if the time limited by any Act for any proceeding or the doing of anything under its provisions expires or falls upon a holiday, the time so limited shall be extended to, and such thing may be done on, the day next following which is not a holiday. An instrument was executed on the 5th of November, 1898. The 5th of February, 1899, was a Sunday. The instrument was presented for stamping on the 6th of February.

Held, That the fine of one hundred per centum was not payable.

APPEAL from the Commissioner of Stamps under section 55 of "The Stamp Act, 1882."

A memorandum of transfer, dated the 5th of November, 1898, from Matenga te Hiko and others to the appellant, Reginald Wall, was presented to the Deputy Commissioner of Stamps, at Wellington, for stamping, on the 6th of February, 1899. The Deputy Commissioner assessed the duty payable at £38 5s. (namely, £2 5s. stamp duty, and £36 Native land duty), together with fines of one hundred per centum on each amount. The appellant claimed that he was only liable to pay a fine of twenty-five per centum,