Fitzgerald v Leonard

• Jurisdiction: Ireland
• Judgment Date: 01 July 1893
• Docket Number: (1893. No. 3479.)
• Date: 01 July 1893
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before HARRISON, JOHNSON, HOLMES, and MADDEN, JJ.

(1893. No. 3479.)

FITZGERALD

and

LEONARD

Boyd v. FittUNK 14 Ir. C. L. R. 43.

Smith v. Greene 1 C. P. Div. 93.

Blair v. KinchUNK 10 L. R. Ir. 234.

Hammond v. BusseyELR 20 Q. B. Div. 79.

Radcliffe v. EvansELR [1892] 2 Q. B. 524.

Boyd v. Fitt 1 C. P. Div. 92.

Hadley v. BaxendaleENR 9 Exch. 341.

Hamilton v. MagillUNK 12 L. R. Ir. 202.

Measure of damages — Breach of warranty on sale of butter — General loss of trade — Evidence —, 1887 (50 & 51 Vict. c. 29), s. 7. — Mens rea.

VoL. XXXII.] Q. B. & EX. DIVISIONS. 675 of a penny in the pound, and it is practically impossible that the Appeal. money in hands can prove insufficient to pay the small sum 1892. THE QUEEN required. But, if necessary, the warrants must be recalled and v. amended, or supplemental warrants must be issued. The Grand Co. Dunn; Jury cannot be heard to allege that by refusing to obey the Act of GRAND JURY. Parliament they have rendered obedience impossible. BARRY, L.J., concurred. Solicitors for the appellants : Casey 4 Clay. Solicitor for the respondents : J. Shannon. G. Y, D. FITZ GERALD v. LEONARD (1). (1893. No. 3479.) Measure of damages-Breach of warranty on sale of butter-General loss of trade-Evidence-Prosecution under Margarine Act, 1887 (50 43. 51 Viet. c. 29), s. 7-Mena rea. The defendant sold to the plaintiff adulterated butter, with a warranty that the substance was butter. The plaintiff retailed same to customers, and, being prosecuted under the Margarine Act, 1887, was fined D. In an action for breach of warranty : Held, that the plaintiff could not recover damages for general loss of trade profits, whether consequent on such conviction or on the re-sales to customers of the adulterated substance, nor could recover as damages the amount of the fine imposed. The Margarine Act, 1887, section 7, does not make the sale of margarine as butter penal, irrespective of the defendant's state of mind, but throws on the defendant the burden of disproving intent and knowledge. NEW TRIAL MOTION of action tried before Mr. Justice Gibson, and a special jury of the city of Dublin, at Trinity Sittings, on the 5th June, 1893. The cause of action, as originally stated in the writ and statement of claim (paragraph 1), was for damages, (1) Before HARRISON, JOHNSON, HOLMES, and MADDEN, H. 676 LAW REPORTS (IRELAND), [L. R. I. Q. B. Div. laid at £300, for fraudulent misrepresentation on the sale of ]893. butter. The statement of claim was by leave subsequently FITZGERA.LD v. amended by the addition of a second paragraph, averring a sale LEONARD. by defendant to plaintiff of a certain substance which the defendant warranted to be butter, and that " yet the said subÂstance was not butter, but was in fact another substance commonly known as margarine, whereby the plaintiff was subjected to a prosecution under the Margarine Act, 1887, and was convicted and fined, and lost thereby a considerable sum of money, and had been seriously injured in her trade as butter merchant." The original cause of action was abandoned at the trial. As to the claim for breach of warranty, the defendant, after traversing plaintiff's averments, pleaded that it was not by reason of any act or default on the part of the defendant that the plaintiff was so convicted. The evidence given at the trial was somewhat obscure and conÂflicting. The general result appears sufficiently upon the findings of the jury given below, to which it is only necessary for the purpose of this report to add thus much. Evidence was received as to the sale to the inspector, by whom the prosecution under the Margarine Act, 1887, was instituted, and as to the amount of the penalty inflicted, £3,-(through inadvertence, as it would appear, the defendant, when selling the substance in question had omitted to give an invoice properly filled up, so as to satisfy the requirement of sect. 7 of the Margarine Act, 1887),-counsel for defendant objecting to this evidence, on the ground that no damages in respect of the prosecution could be...