Judgement Appeal from a judgment and decree of the Chief Court of Lower Burma (July 24, 1913) affirming the judgment of Ormond J. of that Court. By six contracts made between April and August, 1911, the respondents bought and the appellant sold, at various prices, 23,500 shares in the British Burma Petroleum Company, Limited, to be delivered and paid for on or before December 30, 1911. The con tracts contained a clause providing that in default of payment the seller should have the option to resell the shares. The shares were tendered on December 30, 1911, but the respondents declined to take delivery or pay for them. At the market price for sales upon that day, namely 4s. 3d. a share, the 23,500 shares would have realized Rs. 109,218 less than their price under the contracts. The appellant gave the respondents written notice of his intention to sell the shares against them. No sale, however, was made until February 28, 1912 ; all the shares were sold at various times between that date and August, 1912. By these sales the appellant realized more than if he had sold upon December 30, 1911, namely, a sum only Rs. 79,862 less than the price under the contracts. Law. Rep. 43 Ind. App. 6 ( 1915- 1916) A. K. A. S. Jamal V. Moolla Dawood 109 The facts are more fully stated in the judgment of their Lordships. In March, 1912, the appellant sued the respondents in the Chief Court for damages for breach of contract, claiming Rs. 109,218. The respondents contended that the appellant was only entitled to recover Rs. 79,862. The suit was tried by Ormond J., who gave judgment for the appellant for Rs. 79,862 only on the ground that the appellant having elected to exercise the right of resale given under the contracts was bound to give the respondents the benefit of the prices obtained. The Chief Court in its appellate jurisdiction (Hartnoll, acting Chief Judge, and Young J.), while differing from the above view of Ormond J., affirmed his decision upon the ground that the respondents were entitled to the benefit of the prices actually obtained in mitigation of damages. 1915. Oct. 22. Sir Erle Richards, K.C., and F. J. Coltman, for the appellant. The case is governed by s. 73 of the Indian Contract Act (IX. 1915. Oct. 22. Sir Erle Richards, K.C., and F. J. Coltman, for the appellant. The case is governed by s. 73 of the Indian Contract Act (IX. of 1872), which, however, is merely declaratory of the English common law as to damages for breach of contract. The measure of damages is the difference in the market price of the shares at the date of the breach under the contract; the respondents are not entitled to the benefit of the higher prices obtained when the sales actually took place. Any increase or decrease in the price after the breach was a matter which only concerned the appellant. The decisions relied on by the Chief Court, such as Brace v. Colder ([ 1895] 2 Q. B. 253.), were cases with regard to contracts of a continuing character and are distinguishable. Pott v. Flather (( 1847) 16 L. J. (Q. B.) 366.), which was referred to, is in the appellants favour. The clause in the contracts giving the appellant an option to sell did not affect the appellants right to damages, but merely provided a summary method of ascertaining the loss at the date of the breach. The sales were not in fact made in accordance with the clause. [Williams Brothers v. Agius ([ 1914] A. C. 510, at p. 520.) was also referred to.] F. Dodd, for the respondents. A decision against the respondents would infringe the cardinal rule as to damages for breach of contract, namely, that the plaintiff is entitled to the damages which he has suffered by reason of the breach Wertheim v. Chicoutimi Pulp Co. ([ 1911] A. C. 301, at p. 307.) It was the duty of the appellant to mitigate the damages, and having by holding the shares obtained higher prices he cannot obtain damages on the basis of the price at the date of the breach. Further, the appellant had an option under the contracts to sell and elected to do so. The time at which the sales took place was suspended owing to negotiations, but they in fact were made under the appellants notice and he is bound by them. The Indian Contract Act, 1872, does not refer expressly to the market price at the date of breach as the Sale of Goods Act, 1893, does. Nov. 3. The judgment of their Lordships was delivered by LORD WRENBURY. The Indian Contract Act, 1872, does not refer expressly to the market price at the date of breach as the Sale of Goods Act, 1893, does. Nov. 3. The judgment of their Lordships was delivered by LORD WRENBURY. Under six contracts made at various dates between April and August, 1911, the plaintiff (the appellant) was seller to the defendants of certain 23,500 shares at prices amounting in the aggregate to Rs. 184,1210. The date for delivery was December 30, 1911. The contract notes contained a term providing that in the event of the buyer not making payment on the settlement day the seller should have the option of reselling the shares by auction, and any loss arising should be recoverable from the buyer. In some cases the words ran, "by auction at the Exchange at the next meeting." By December 30 the shares had fallen largely in value. On that day the vendor tendered the shares and asked payment of the price, adding, "Failing compliance with this request by to-day our client will be forced to sell the said shares by public auction on or about the 2nd proximo, responsible for all Law. Rep. 43 Ind. App. 6 ( 1915- 1916) A. K. A. S. Jamal V. Moolla Dawood 110 losses sustained thereby." The purchasers did not pay the sum demanded. They set up a contention that the seller was indebted to them on another transaction, and they sent cheques for the differential sum of Rs. 75,925.10, and called for a transfer of the shares. On January 2, 1912, the seller repudiated the claim to a set-off, and repeated, "We have now to give you notice that our client intends to resell these shares and to institute a suit against you for the recovery of any loss which may result from that course." The purchasers stopped payment of the cheques, and nothing turns upon the fact that they were given. Negotiations ensued between the parties which extended to February 26, 1912. On that day the seller, by his agents, wrote to the purchasers a letter as follows "We are instructed by Mr. Negotiations ensued between the parties which extended to February 26, 1912. On that day the seller, by his agents, wrote to the purchasers a letter as follows "We are instructed by Mr. A. K. A. S. Jamal that he has not hitherto taken any steps to enforce his claim against you for failing to pay for and take delivery of 23,500 shares in the British Burma Petroleum Company, Limited, at your request, in order that his claim might, if possible, be settled. It now appears that no active steps are being taken to settle the matter but that much time is being lost. Our client will therefore now proceed to enforce his rights by suit unless the sum of Rs. 1,09,219.6 is paid to him by way of compensation before the end of this week. The amount claimed is arrived at by deducting Rs. 74,906.4, the value of 23,500 shares at 4s. 3d., from Rs. 1,84,125.10, the agreed price of the shares." The 4s. 3d. a share there mentioned was the market price of the shares on December 30. On March 22 the seller commenced a suit to recover Rs. 1,09,218.12 as damages for breach measured by the difference between the contract price of the shares and their market price (4s. 3d. a share) on the date of the breach, December 30, 1911. This is (with a trifling variance) the same sum and arrived at in the same way as the Rs. 1,09,219.6 mentioned in the letter. Immediately after the letter of February 26, 1912, namely, on February 28, the seller commenced to make sale of the shares. He sold them all at various dates from February 28 onwards. In one case the sale was at less than 4s. 3d. (namely, at 4s.). In one case it was at 4s. 3d. In every other case it was at a higher price. The decision under appeal is one which gives the purchaser the benefit of the increased prices which the shares realized, by giving him credit in reduction of the damages for the increased prices in fact realized over the market price at December 30, the date of the breach. The appellant contends that this is wrong. Their Lordships will first deal with the contractual term as to resale. Upon breach by the purchaser his contractual right to the shares fell to the ground. The appellant contends that this is wrong. Their Lordships will first deal with the contractual term as to resale. Upon breach by the purchaser his contractual right to the shares fell to the ground. There arose a right to damages, and the stipulation in question was in their Lordships opinion only a stipulation that the seller might, if he thought fit, liquidate the damages by ascertaining the value of the shares at the date of the breach by an auction sale as specified. If the seller availed himself of that option he was not selling the purchasers shares with a consequential obligation to account to him for the price, but was selling shares belonging to the seller which the purchaser ought to, but failed to, take up and pay for in order to ascertain what was the loss arising by reason of the purchaser not completing at the contract price. Their Lordships are unable to agree with the original judge that the plaintiffs letters of December 30 and January 2 amounted to an election to take a measure of damages to be arrived at by a resale. Moreover, there never was »any sale by auction under the option. Nothing turns upon this provision as to resale. The question therefore is the general question and may be stated thus In a contract for sale of negotiable securities, is the measure of damages for breach the difference between the contract price and the market price at the date of the breach—with an obligation on the part of the seller to mitigate Law. Rep. 43 Ind. App. 6 ( 1915- 1916) A. K. A. S. Jamal V. Moolla Dawood 111 the damages by getting the best price he can at the date of the breach—or is the seller bound to reduce the damages, if he can, by subsequent sales at better prices ? If he is, and if the purchaser is entitled to the benefit of subsequent sales, it must also be true that he must bear the burden of subsequent losses. The latter proposition is in their Lordships opinion impossible, and the former is equally unsound. If he is, and if the purchaser is entitled to the benefit of subsequent sales, it must also be true that he must bear the burden of subsequent losses. The latter proposition is in their Lordships opinion impossible, and the former is equally unsound. If the seller retains the shares after the breach, the speculation as to the way the market will subsequently go is the speculation of the seller, not of the buyer ; the seller cannot recover from the buyer the loss below the market price at the date of the breach if the market falls, nor is he liable to the purchaser for the profit if the market rises. It is undoubted law that a plaintiff who sues for damages owes the duty of taking all reasonable steps to mitigate the loss consequent upon the breach and cannot c aim as damages any sum which is due to his own neglect. But the loss to be ascertained is the loss at the date of the breach. If at that date "the plaintiff could do something or did something which mitigated the damage, the defendant is entitled to the benefit of it. Staniforth v. Lyall ((1830) 7 Bing. 169.) is an illustration of this. But the fact that by reason of the loss of the contract which the defendant has failed to perform the plaintiff obtains the benefit of another contract which is of value to him does not entitle the defendant to the benefit of the latter contract Yates v. Whyte (( 1838) 4 Bing. N. C. 272.) ; Bradburn v. Great Western Railway (( 1874) L. R. 10 Ex. 1.); Jebsen v. East and West India Dock Co. (( 1875) L. R. 10 C. P. 300.) The decision in Rodocanachi v. Milburn (( 1886) 18 Q. B. D. 67.), that market value at the date of the breach is the decisive element, was upheld in the House of Lords in Williams Brothers v. Agius. ([ 1914] A. C. 510.) The breach in Rodocanachi v. Milburn (( 1886) 18 Q. B. D. 67.) was a breach by the seller to deliver, but in their Lordships opinion the proposition is equally true where the breach is committed by the buyer. The respondents further contend that ss. 73 and 107 of the Indian Contract Act, or one of them, are in their favour. The respondents further contend that ss. 73 and 107 of the Indian Contract Act, or one of them, are in their favour. As regards s. 107 their Lordships are unable to see that it has any application in the present case. It deals with cases in which a seller has a lien on goods or has stopped them in transitu. The section follows upon sections dealing with those subject-matters. The present case is not one which falls under either of those heads. The seller was and remained the legal holder of the shares. As regards s. 73 it is but declaratory of the right to damages which has been discussed in the course of this judgment. Their Lordships find that upon the appeal the officiating Chief Judge rested his judgment on a finding that the seller reduced his loss by selling the shares at a higher price than obtained at the date of the breach. This begs the question by assuming that loss means loss generally, not loss at the date of the breach. The sellers loss at the date of the breach was and remained the difference between contract price and market price at that date. When the buyer committed this breach the seller remained entitled to the shares, and became entitled to damages such as the law allows. The first of these two properties, namely, the shares, he kept for a time and subsequently sold them in a rising market. His pocket received benefit, but his loss at the date of the breach remained unaffected. Their Lordships will humbly advise His Majesty that this appeal ought to be allowed, and the orders in the original Court and in the Appeal Court discharged, and judgment entered for the plaintiff according to his plaint, and that the respondents ought to pay the costs in the Courts below and of this appeal.