of of part-Right JJ.
it at the judgment JJ. that the APPEAL from the decision of the Court of Appeal for Ontario (1), affirming the judgment of the Common Pleas Division (2) in favor of the plaintiff.
The material facts of the case are as follows:
The defendant, Thomson, was a dealer in lumber at Hamilton, Ont., and previous to the year 1884, he had purchased lumber from the plaintiff. In January, 1384, he received a letter from the plaintiff containing the fol lowing offer: " I am informed you want 200,000 feet 2 " inch plank, 18 feet; I will furnish it for same price " and terms as last summer."
On January 28th, 1884, he answered said letter as follows:
" I will take 200,- " 000 feet 2 inches, 18 feet, 6 inches up to 12 inches, "good, sound, square edge, fit for car flooring, at $10, "a months."
On February 2nd, 1884, the defendant received the following:
"I could not furnish the "200,000 feet 2 inch plank, 18 feet, for less than $10.50 "per thousand,"
On February 20th, he wrote as follows: " I will take 290,000 feet cut as follows, 2 x 6, " 2 x 8, 2 x 9, 2 x 10, 2 x 12, 18 feet, at $ 10.25, 3 "months.
It must be good, sound, square-edged stuff, " red and white pine."
On February 23rd, he received the following answer:
"I will accept your offer for "the 200,000 feet of 18 feet plank, from 6 to 12 wide, "quality same as I supplied you last year, your accept- "ance at three months from date of shipments." On the strength of this correspondence the plaintiff began in June, 1884, to ship the lumber from his mills on the line of the Hamilton & North-Western Railway to the defendant at Hamilton, who accepted a number of car loads, but refused to accept others on the ground that a portion of the lumber in them was not up to the standard of his letter of February 20th. All the lumber had been sent to Hamilton except one car load which, by defendant's orders, was sent to London.
The plaintiff sued for the whole amount shipped, and defendant in his statement of defence offered to pay for the portion which was of the proper size and quality.
The plaintiff recovered a verdict at the trial for the full amount, and both the Common Pleas Division and the Court of Appeal refused to disturb it. Both these courts held that the defendant had no right to reject the lumber, his only remedy being to proceed against the plaintiff for damages for non-delivery according to contract. From the decision of the Court of Appeal the defendant appealed to the Supreme Court of Canada. Bain Q.C. and Cappelle for the appellant, as to right of inspection and rejection, and when and where it must be exercised, in addition to cases cited in the court below, Sir W. J. C.J.-After a careful consideration of this case I have arrived at the conclusion, on the facts presented, that by the shipments on the railway of lumber which answered generally the kind of lumber contracted for there was a substantial compliance with the contract, and the vendee had no right to reject any number of carloads because of the inferiority in quality of a very small portion in each carload, but that his redress was a claim for reduction in the price, or for damages which would appear, in this case, to have been, comparatively, of a very trifling amount and for which he has been allowed an abatement in the price. Of course, if the article shipped was of an entirely different character the case would be very different, but here the I8 description was substantially satisfied, which resolves the dispute into one of quality; and the verdict establishing that the deficiency in quality only amounted to $90, or about 41 per cent., an amount insufficient to justify the rejection of the lumber, which, in other respects, answered the terms of the contract, and defendant having been allowed that amount, substantial justice has, in my opinion, been done, and I cannot see any object to be gained by disturbing this verdict, though I must say I cannot very well understand why the evidence as to quality should have been rejected in the first instance as applicable either to the question whether the article supplied accorded with the contract, or as matter in reduction of the price; but I think we must take the verdict as establishing, after defendant was permitted to go into the evidence of the quality and character of the lumber, exactly how defective it was, and therefore there can be no possible object gained by sending* the case to another trial by reason of the rejection of the evidence in the first instance. J.--Le contrat fait entre les parties r6sulte de leur correspondance A ce sujet. L'intim6 s'obligeait A livrer A 1'appelant pour le prix convenu 200,000 pieds de bois de la qualit6 et des dimensions mentionn6es dans la correspondance.
Le bois s'6tant trouv6 de dimensions plus petites que celles convenues et de mauvaise qualit6,-14 charges de chars furent refus6es A leur arriv6e A Hamilton, parce que les madriers n'avaient pas 18 pieds de longueur, 2 pouces d' paisseur, et de 6 A 12 pouces de largeur,- Aprbs une correspondance entre les parties A ce sujet, 1'appelant offrit la somme pour la qualit6 de bois qui s'6tait trouv6e conforme au contrat. Dyment fit suirre le refus de cette offre d'une action. Au prochs, et aprs l'enquite du demandeur close, M. Lount, conseil du d6fendeur, fit entendre celui-ci pour prouver Fournier J. que le bois rejet6 a Hamilton n'6tait pas conforme au contrat.
avait 8 autres t6moins pour prouver ce fait. Le conseil du d6fendeur objecta A cette preuve, pr6tendant que l'appelant aurait di inspecter le bois abord des chars, aux moulins du demandeur, que ne l'ayant pas fait, il ne pouvait plus l'inspecter et le rejeter A Hamilton; qu'il ne pouvait plus alors exercer que son action en dommages ou prouver l'inf~riorit6 de la qualit6 en d6duction du prix du contrat. Cette objection fut maintenue par 1'hon. juge qui d6clara que la preuve offerte 6tait inadmissible comme d6fense A 1'action et ne pouvait servir qu'A 6tablir une reclamation de dommages ou en r6duction du prix du contrat.
En cons6quence de la d6cision de i'hon. juge, aucun des huit autres temoins prts A 6tablir le fait que le bois n'6tait pas conforme au contrat ne fut entendu, et il s'ensuivit entre les conseils un arrangement par lequel on convint de suspendre le procks et de laisser entrer un jugement pour $1,325 et les frais, sans prejudice aux droits du d~fendeur de faire motion pour faire mettre de cbt6 la decision du juge. Par cet arrangement, tout ce qui aurait en lieu apris cette decision devait tre consid6r6 comme non avenu, si la decision 6tait annulke. Le montant de la reduction mentionn6e alors ne repr6sentait pas la valeur de la diff6rence entre le bois mentionn6 au contrat et celui qui avait 6t6 livr6 puisque la preuve en avait 6t6 interdite.
La principale question que soul1ve cet appel est de savoir si la decision de 1'hon. juge d6clarant que I'appelant n'avait aucun droit d'inspecter et de rejeter le bois A Hamilton est fond6e en loi.
Cette question doit tre examinee et d6cid6e sans 6gard A la reduction de $90 consentie par 1'appelant. est 6vident que ce montant n'a t6 admis que parce que l'appelant avait confliance de faire casser la decision de l'hon. juge, et avait aussi la conviction que s'il - Fournier J. r6ussissait A faire entendre ses t6moins il 6tablirait la suffisance de ses offres.
Pent-on maintenant s'appuyer sur cet arrangement pour en conclure comme 'a fait la Cour d'Appel que l'insignifiance de la r6duction $90, est une preuve que le contrat a 4t6 rempli ? O'est oublier que cette admission n'a k6 donn6e que pour un but particulier, et c'est violer la convention des parties que de s'en servir pour empcher l'examen de la question que cette admission avait pour but unique do soumettre A la revision d'un autre tribunal.
Ces arrangements entre les parties, en face de la cour lorsqu'elle y donne son approbation, ont la force d'un contrat judiciaire qui est aussi obligatoire que la chose jug6e. La partie qui y a donn6 son consentement ne peut plus le r~tracter. (1).
Le contrat de vente dont il s'agit n'a rien dtermin6 an sujet du lieu de L'inspection. L'intim& devait fournir du bois venant de trois tablissements diff6rents. II 'a exp6di6 en diff6rents temps et sans en donner avis A l'appelant qui n'a jamais eu L'occasion d'en faire 1'inspection ailleurs qu'A Hamilton.
La pr6tention de I'intim6, qu'il devait le linrer A bord des chars est contredite et par lui-mAme et par la correspondance et par le fait qu'A l'exception d'une seule charge de char tout le bois a t livr6 A H. milton. Dans le silence des parties A cet 6gard, il faut en conclure que l'appelant avait droit d'inspecter et de rejeter le bois A Hamilton.
Ind6pendamment de cela, la vente d'articles non encore en existence, lors mime que la propri6t6 est pass6e A l'acheteur, ne lai enl6ve pas le droit de les inspecter et de les rejeter, dans un d6lai raisonnable. La loi A cet 6gard est clairement expos6e dans la cause de Pope vs Allis (1):
J latter tract, * Cette d6cision doit avoir d'autant plus d'application & la pr6sente cause qu'elle est fonde sur les pr& cdents anglais qui y sont cites, et que les circonstances de la cause sont parfaitement analogues A celles mentionn6es dans cette d6cision. Les jugements contraires de la Cour d'Appel ne saurait pr6valoir contre cette autorit6 ni contre celle de Grimoldby v. Wells (2) od Brett J. s'exprime ainsi au suiet du droit d'inspection:
it it to La doctrine 6nonc6e dans cette autorit6 par l'hon. juge est sans doute celle qui devait r6gler l'effet du contrat en question dans cette cause.
Pour cela il faudrait permettre la preuve qui a 6t6 refuse6, car ce n'est que par ce moyen que l'appelant pouvait 6tablir si le bois livr6 A Hamilton 6tait des description et qualit6 d6finies par le contrat. Je suis d'opinion qu'elle aurait da tre permise. Je dois ajouter que je concours entierement dans l'opinion exprimbe par 1'hon. juge Henry dans les notes qu'il a en l'obligeance de me communiquer. L'appel devrait tre allou6 et un nouveau procks ordonn6.
J.-By means of a correspondence entered into between the parties to this suit, the respondent, in 1884, agreed to sell to the appellant certain dimension lumber to be shipped to Hamilton, where the appellant resided.
The defence set up is that certain shipments, in whole or in part, were inferior in quality and not according to the contract, and that the appellant declined to receive the same.
Some shipments were accepted.
When at the trial the counsel of the appellant was proceeding to adduce evidence to sustain the defence, the counsel of the respondent objected to any evidence to sustain it, but agreed that evidence in reduction of damages should be received, and his contention was sustained by the presiding judge. The contention of the respondent's counsel was that the appellant had no right of inspection at Hamilton but that it should have been made when the lumber was put on board the cars.
It is shown that the lumber was shipped from three different mills of the respondent and from time to time.
No notice was given the appellant of any of those shipments. How then could it be assumed that the appellant could have by any possibility made any inspection ? It may be gathered from the correspondence and otherwise that the appellant was to pay the railway charges, but that, in my opinions does not affect the contract otherwise. Such payment only affects the price.
Suppose the respondent had agreed to deliver the lumber free of all expense at Hamilton, would not the right of inspection there be at once admitted, and when we consider that if the cost of transit was agreed to be paid by the appellant the respondent sold to that extent at a lower rate.
The respondent agreed to put free on board the cars consigned to the appellant a particular quality and description of lumber, and the substantial question is: 1id he do so ? How can he claim that the appellant accepted the lumber shipped when he knew that the latter not only had H .
not accepted the inferior lumber but was not given an opportunity of doing so?
It is shown that the appellant required and contracted for a particularly described article and the respondent agreed to supply that to him. Suppose a builder having a oontract for the erection of a house is required to use dimension material and another agrees to supply the same and to put it free on board the cars of a railway; he ships it but without any notice to the party purchasing it, and when it reaches the place of delivery, and is found wholly unsuitable, would it not be monstrous to decide that the builder was bound to receive it and pay for an article he neither wanted or contracted for? proposition would be monstrous, illegal and inequitable, and what have we here but substantially that same proposition ?
I will put another case.
A merchant in Halifax undertakes to ship to another at Montreal a quantity, say one hundred barrels, of herrings, sound and of good quality, and agrees to put them free on board the cars at the price agreed upon.
The number of barrels of herrings are shipped, but on reaching Montreal are found to have been unsound when shipped and of inferior quality. Is the consignee in such a case obliged to accept the consignment ? Is he required to take what he did not want or purchase?
Who can be found to contend that he would, and yet it is contended the appellant is bound here.
Would not the merchant in Montreal be entitled to refuse acceptance of the fish? And could he not claim to be reimbursed for the freight if he paid it and such damages for the breach of contract as he could prove? So in this case the appellant, in my opinion, is entitled to claim, in respect of any of the shipments that on inspection in Hamilton turned out different from the contract, reinbursement of the freight paid by him and special damage if proved.
The contract in this case was, in effect, that the respondent would ship on board the cars the lumber according to the contract, and his right to recover was based on showing that the lumber so shipped was so. He did not attempt on the trial to prove it, but objected to the appellant showing the opposite by evidence that when the lumber reached Hamilton it was not according to the contract.
I am of the opinion that such evidence was improperly rejected.
We need not speculate on the question of the right of the appellant to claim the property so shipped. It was, no doubt, his, but subject to his right to reject it. He had no doubt an insurable interest in it when shipped, but considerations of such questions do not affect the issues raised in this case.
On the part of the appellant it is shown, and uncontradicted, that on the learned judge deciding at the trial that the appellant could not inspect and refuse to accept the lumber alleged to be not according to the contract at Hamilton the right to have that judgment reviewed on appeal was agreed to, but that evidence should be received in reduction of the price agreed upon, or by cross action in case the decision of the learned judge upon that point should be affirmed.
That after some evidence was given as to the value of the lumber independently of the question of its being according to the contract, it was agreed that $90 should, in that event, but only in that event, be considered as the sum to be deducted. That agreement does not in any way affect the consideration of the other and more important question.
Our judgment is, therefore, required upon the latter subject. It is alleged too in the appellants factum, and tacitly admitted, that he had several witnesses to prove that the lumber was not according to the contract, but that the learned judge having refused to admit evidence on the point they were not examined. We must, therefore, not fail to mark the distinction between Henry J. evidence of the value of an article and evidence as to an article being according to contract. A man is bound to accept only what he specifically bargains for, although the article offered is worth in the market even more than that contracted for. The factum of the respondent put the case fairly thus :- The contract was to deliver 200,000 feet of plank two inches thick, from six to 12 in width and eighteen feet long, to be good, sound, square edged stuff, red and white pine fit for car flooring.
The appellant alleges in his statement of defence, that the lumber refused by him was " neither good, sound square edge stuff" of the size agreed for, nor of the proper quality. Issue was taken thereon and that is the only one legitimately before us. It is no question like that of a purchaser accepting an inferior article and refusing to pay the full contract price. In such a case the supplying party has failed to supply the proper article, and the purchaser may either demand a reduction in price or counter claim for damages.
We must not confound the two positions. Where a party refuses to accept an article different from that contracted for, I can find neither any law or equity to force him.
On the trial the appellant was prevented by the learned judge from showing that the lumber was not according to the contract.
It cannot be denied that if the goods shipped or tendered are not the kind of goods agreed for, or where the description of the goods is not answered by the goods offered, that the right of rejection is still with the buyer, notwithstanding shipment and delivery, as in that case there is a total want of fulfilment of the contract or a breach of a condition precedent on the part of the vendor. See Chanter v. Hopkins (1) ; Bowes v. Shand (2); Benjamin on Sales
The appellant was not allowed to prove such a legal defence as every principle of justice requires and the law permits him to do. He is therefore, in my deliberate judg. ment, entitled to a new trial. I think therefore, the appeal should be allowed and a new trial granted with costs in all the courts.
J.-I am of opinion that this appeal should be dismissed upon two grounds.
1st, Because, under the circumstances as disclosed by the evidence, the property in the goods passed to the vendee at the time of shipment; 2nd, on the ground that the appellant having received, paid for and accepted a substantial part of the goods his right of rejection was gone. GWYNNE J.-I find it difficult to understand how the misunderstanding in this case, which occasioned this appeal, has arisen.
The defendant pleaded a right to reject lumber forwarded to him by the plaintiff under a con tract of purchase upon the ground that the lumber so rejected was not sound, good, square edge stuff, fit for car flooring, which, as he said, was the lumber contracted for. When defendant's counsel, having called the defendant as a witness on his own behalf, was proceeding to examine him upon the quality of the lumber, counsel for the plaintiff objected to any such evidence being given for the purpose of establishing the defence set up in the statement of defence, insisting that to entitle the defendant to reject the lumber he should have inspected at the mills before the lumber was forwarded. learned judge concurred in this view, but said he would Jreceive the evidence subject to the objection, and he ruled that the defendant should have leave to file a counter claim.
The counsel for the defendant disputed this point of law, insisting that the contract, which, as he contended, appeared in a letter which he relied upon, did not make the lumber deliverable on the cars, but to the defendant at Hamilton. The court then adjourned.
When the coiurt met again next morning, the defendant's counsel stated that he had decided not to enter a counter claim, and to offer no evidence as to quality, but to go to the jury for the, sole purpose of determining what the contract was. Plaintiff's counsel then stated that he was quite willing that the defendant should give evidence that the lumber was not according to contract, and also as to quality with a view to reduction of the price.
Defendant's counsel then stated that he would go on to give evidence as to a reduction in the price and to dispose of the whole case, and accordingly he called the defendant and went largely into evidence as to what the contract was, and as to reduction in the price by reason of defect in quality. Now, I do not see why the plaintiff's counsel in the first instance objected to the evidence as to defect in quality being gone into, for it was given in the result largely, although not, as is now said, to the extent it could have been gone into, as defendant had as he said, many witnesses in court who could have spoken to that point.
The evidcnce of defect in quality offered to reduce the price might have proved sufficient to show that the quality was so utterly defective, and so unsuitable for the purpose for which the lumber was purchased, that it could not be said to have supplied the contract, in which latter case, as was admitted by the plaintiff's counsel, the defendant might have rejected the lumber as he did.
And it was also admitted , that it was open to the detendant, if the evidence supported the contention, to have it put to the jury to determine whether the lumber was so defective in quality that it could not be said to supply the contract.
So that in reality there appears to have been no reason why the defendant should not have offered all the evidence he had for the purpose of establishing the lumber to have been so defective in quality. But what took place was that after examining the defendant himself and two or three other witnesses called by the defendant, and after reading certain letters which had passed between the parties, the learned judge expressed the opinion that the contract was not as the defendant contended, but as the plaintiff contended that it was.
Counsel for the defendant accepted this opinion which, plainly, materially affected the defendant's contention as to his right of rejection of the lumber, which he rested chiefly upon the contention that the lumber was purchased for a- special purpose, namely, for car flooring, and for which, as was contended, it was wholly unsuitable, but which purpose was not expressed in the contract as it was found to be in the opinion of the learned judge, and the purpose for which, as the defendant contended, the lumber had been purchased not being in the contract might have rendered useless the evidence of the other witnesses which the defendant had in attendance. Under these circumstances defendant's counsel, not disputing the correctness of the learned judge's opinion as to the terms of the contract nor asking that the question should be submitted to the jury, agreed with the plaintiff's counsel that if the defendant was not entitled to reject the lumber as he did a verdict should be rendered for the plaintiff for the amount claimed by him, less the sum of $90.00, as the difference between the value of the lumber delivered and that contracted for, and it Jwas agreed that the defendant's consenting to such verdict was not to prevent his moving in term against the ruling of the learned judge as to the defendant's right to reject the lumber. But the verdict must be taken to * have been a fair settlement of the difference in value between the lumber delivered and that contracted for, and the plaintiff's contention as to the terms of the contract, as to which there is now no dispute, must, under the circumstances stated above, be taken to be correct, so that the verdict cannot but have a very material effect upon the question involved in such action for if the reduction in value was no more than $90.00, which amounted to 4- per cent., such a difference never would have justified a rejection of the lumber, assuming Hamilton to have been the place where it should have been inspected.
I think, therefore, that this appeal should be dismissed with costs for substantial justice appears to have been done by the deduction of $90.00 from the amount demanded, which sum must be taken to be the true amount of the difference in value between the lumber delivered and that contracted for, so that no useful purpose could be obtained by throwing open the case before another jury whether the lumber should or not have been inspected by the defendant before it was loaded on the cars at the mills, to be forwarded to him at Hamilton.
The defendant must be taken to have accepted the opinion of the learned judge as to the terms of the contract, establishing it to be as the plaintiff contended, and not as the defendant contended it to be, and upon the terms of the contract being as the defendant claimed them to be, the whole