Browne v Phillips

• Jurisdiction: Ireland
• Judgment Date: 13 May 1882
• Date: 13 May 1882
• Court: Exchequer Division (Ireland)

Ex. Div.

BROWNE

and

PHILLIPS.

Magee v. LavellELR L. R. 9 C. P. 107.

Sainter v. FergusonENR 7 C. B. 716.

Davies v. PentonENR 6 B. & C. 216

Betts v. BurchENR 4 H.& N. 506.

Green v. PriceENR 13 M.& W. 695; 16 M. & W.

Kemble v. FarrenENR 6 Bing. 141.

Atkyns v. KinnierENR 4 Exch. 776, 783.

Galsworthy v. StruttENR 1 Exch. 659.

Astley v. WeldonENR 2 Bos. & P. 346.

Sparrow v. ParisENR 7 H.& N.594.

Mercer v. Irvine Ell. Bl. & Ell. 563.

Betts v. BurchENR 4 H. & N. 506.

Magee v. LavellELR L. R. 9.C. P. 107.

Kemble v. FarrenENR 6 Bing. 148.

Ex parte Capper 4 Ch. Div. 724.

Betts v. BurchENR 4 H. & N.506.

Contract in writing Breach of Liquidated damages or penalty

LAW REPORTS (IRELAND). [L. R. I. in point in his favour as to the taking of the goods, as there the furniture in respect of which damages were given were the plaintiff's. Edwick v. Scathes (1) does not apply, as there Mr. Justice Fry decided that the plaintiff's estate had not been determined. Having, however, referred to these two cases, the one of which decided and the other assumed that Newton v. Harland (2) was still law, I desire to say that I hold myself free to consider that quesÂÂtion in any case which may hereafter demand its determination. FITZGERALD and DOWSE, BB., concurred. Solicitor for the Plaintiff : Wm. R. Fenton. Solicitor for the Defendant : A. L. Barlee. Ex. Div. 1882. Contract in writing-Breach of-Liquidated damages or penalty-Common April 18. Law Procedure Act, 1853, ss. 145, 146. May 13. A foreman tailor, in consideration of his employment at a certain salary, entered into a written agreement with his employer to the following effect :- " In consideration, &c., I agree and hereby bind myself, under a penalty of 300, not to violate any of the following undertakings : not to go into business in the tailoring trade, nor enter into the employment of another in said trade within twenty miles of Dublin, for one year after leaving or being discharged from your employment ; and at no time to use the name of Macdona & Browne' in any form in connexion with the tailoring trade, out of your actual employÂÂment." He was afterwards dismissed, and, within a month of the dismissal, opened a tailoring establishment in Dublin, and described himself as " from Macdona's," and as having been "foreman cutter in Macdona's." In an action for breach of the contract, no special damage was proved, and a verdict was found for the Plaintiff, with nominal damages. On, motion by the Plaintiff to increase the damages to 300, pursuant to leave reserved at the trial : Held, that the sum of 300, mentioned in the agreement, was a penalty and not liquidated damages. (1) 18 Ch. Div. 199. (2) 1 Sc. N. R. 474. VoL. X.] Q. B., C. P., & EX. DIVN.Q,N8. In such cases, ss. 145, 146 of the Common Law Procedure Act, 1853, apply, and the Plaintiff cannot recover more than the actual damage shown to have been sustained. The principle of Magee v. Lavell (L. R. 9 C. P. 107) applied. Bonsall v. Byrne (I. R. 1 C. L. 573) observed upon. ACTION by the Plaintiff James Browne...