Dear Dave,

I see your principal point exactly. It did strike me when I first read the
description of Smith v Landstar that, if the contract were simply to the
effect that A offered to lend money at interest in exchange for B offering
to repay the loan with interest, and both parties had performed those
duties, then there would seem to be no room for A to complain simply because
she didn't get a security to undergird the repayment obligation. If those
had been the facts of the case, I would certainly have taken the view (like
you) that A should have had no remedy at all, given that there would have
been no breach of contract. However, when I came to read the judgment I
realised that the failure to provide the security was held a breach of
contract (the defendant admitted as much at trial), so my comments were made
on that basis. It would have been useful to have seen the exact wording of
the contract in the judgment.

I had not recalled the point you raise about City of New Orleans v Firemen's
Charitable Association, i.e. that the ancillary obligations were not
identified in the contract. But looking again at the report of the case on
Lexis, I see that McEnery J in delivering the judgment of the Supreme Court
states that "The complaint is to the deficiencies in the minor parts of the
contract, relating to the employment of a certain number of men, and the use
of equipments" - does that not suggest that the judge's view at least was
that the failure of the defendant to provide enough men, etc., *was* a
breach (albeit a minor one) of the contract? (I accept that he states that
the 'main purpose' of the contract was performed) Or am I mis-interpreting
what he means here? I've also just noticed from the very curt report of the
judgment that the plaintiff's action in the case is described by McEnery J
as one of 'Repetition', which he states is one 'by which a person demands
and seeks to recover what he has paid by mistake or delivered on a condition
which has not been performed' (I am immediately struck by the similarities
to the Scottish remedy of 'repetition'). I'm not sure whether what is meant
by McEnery J is a claim under Article 2301 of the Louisiana Code of 1870
("He who receives what is not due to him, whether he receives it through
error or knowingly, obliges himself to restore it to him from whom he has
unduly received it"), this being a 'quasi-contract' claim, or one under
Article 2133 of the 1870 Code ("Every payment presupposes a debt; what has
been paid without having been due is subject to be reclaimed"), that being a
contract claim. But, either way, such a claim seems to be for the return of
what had been paid, not for damages, so, like you, I take the view that the
case ought not to be used by those arguing for damages in a measure
reflecting a contract breaker's skimped performance. On my reading of the
judgment, the claim of repetition seems to fail because of the free
acceptance, without demur, of the skimped performance ("During the execution
of the contract the City accepted the fire department tendered by the
association, with the alleged deficiencies. The City, therefore, has no just
cause of complaint..."). Only after disposing of that repetition claim does
McEnery J go on "... unless it can show some damage from the failure of the
association to carry out its contract by reason of the alleged deficiencies"
- this I take it be a veiled reference to an alternative claim for damages,
one that would have rested on a need to show 'damage', though so far as I
can see no such alternative damages claim was pled by the City. This at
least is how I read the case - I would be very interested to your further
views on it, if they are different to mine.

Martin


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