The Erie County Natural Gas and Fuel Company Limited and Others v Samuel S Carroll and Another: PC 14 Dec 1910

(Ontario) The defendant was found to have breached its obligations to supply natural gas to the plaintiff. The plaintiff spent money on works to procure its own supply, and subsequently sold those works at a profit.
Held: Their Lordships stated as follows: ‘It may well be that if several reasonable but abortive attempts had been made to procure this gas the cost of these would have been properly treated as part of the cost of ultimately obtaining it, but that question does not arise in the case. The works having admittedly been sold, something must have been obtained for them. It is clear that if the defendants are to pay for the cost of making those works and of thereby supplying the plaintiffs with the gas the works produced they must get credit for the sum for which these works, after having supplied the gas, were sold, otherwise the plaintiffs would make by the defendants’ breach of contract a profit equal to the price obtained on sale. It was therefore the business of the plaintiffs to shew how much that something was. The prima facie inference to be drawn from a document printed in the record is that $75,000 was the amount of it. That inference, unless rebutted, should in justice to the defendants be acted upon. The burden of rebutting it lay upon the plaintiffs. They have, in their Lordships’ opinion, failed to discharge that burden, and should not be permitted, by leaving the matters in obscurity, to recover more than they have lost. The plaintiffs have not sued for the loss of their contract. They have only sued for the damages caused to them by the temporary deprivation of the gas. They have got the substituted article, identical in description and quality, have used it, and have failed to shew that it has not in the result been obtained by them free of cost. They are therefore, according to the principles established by the authorities already cited, only entitled to nominal damages.’
Lord Atkinson
[1911] AC 105, [1910] UKPC 57
Cited by:
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CitedFulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .

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Updated: 23 February 2021; Ref: scu.467338