The V. Hudon Cotton Co. v. The Canada Shipping Co.

VOL. Xfl.]

SUPREME COURT OP CANADA.

Church Congregation, they the Federal Bank not appearing in that transaction but contenting themselves with Adamson's promise to pay them out of the c monies he should receive on the sale, and the fi. fa.

having been paid off and satisfied by the vendees of O Adamson for the express purpose of discharging their vendor's land from the operation of the fi. fa. and to J. complete their title without the Bank of Commerce, so far as appears, having had any notice of the Federal

Bank having ever had, or that they claimed to have, any interest in the land, the money so paid to the sheriff was, in my opinion, money paid to the use of the Bank of Commerce and cannot be recovered by the

Federal Bank either from the Sheriff or the Bank of

Commerce.

The Federal Bank must bear the consequences of their own act in enabling Adamson to deal with the property as his own.

Per Strong J.-That the action by respondents (undisclosed principals) was maintainable.

Per Fournier and Henry JJ, that the action by respondents (undisclosed principals) was not maintainable and that the appellants were not precluded from setting up this defence by their plea of tender and payment into court.

At the trial it was proved that the defendants agreed to take the coal as per bill of lading without having it weighed. They, however, caused it to be weighed in their own yard, without notice to the vendors, and the cargo was found to contain only 755 tons, 580 lbs. About three weeks after having received the bill of lading, when called upon to pay, they claimed a reduc, tion for the deficiency.

1st. As to compatibility of pleas :

See C. P. C. art, 146. DeMontigny v. The Watertown Agricultural Ins. Co, not reported; Leclerc v. Girard (2); Middlemiss v. Procureur General of Quebec (3). 2nd. As to first plea :

(1) Authorities cited by Sir A. A. Dorion: Dorion's Q. B. B. 356.)

(2) Civil Code of Quebec, arts. 1023 and 1028; Pothier Obligation (4) ; Maynz (5),

Demolombe (6) also Civil Code, arts. 1206 and 1234.

Cujacius (7) ; Vinnius Institutes (8).

Molitor Obligations (9); Hunter's Roman law (10); Bell Commentaries

Domenget, Mandat (12); Sirey, code de. com. (13); Pardessus (14).

As to agency of broker; Civil Code art. 1735. Syme et al v. Howard (15) ; Wharton on agency (16); Browning Q.

Q.

See

(1)Vl.I6os18 ad38 v. The Provincial Insurance Co. (1).

3rd. On second plea.

Sir W J. Ritchie C.J.-Was of opinion that the appeal should be dismissed for the reasons given by Taschereau J.

J.-I am for affirming the judgment upon the following grounds : First, that the action is maintainable by the respondents.

Arts. 1716 and 1727 of the Civil Code, which make the principal liable to third persons, even although the agent may have contracted in his own name, and as a principal, thus assimilating the law of Quebec to the English law, must, I think, be considered by an extensive construction as also making third persons so contracting with the agent liable reciprocally to the principal, since it must proceed on the implication that in such a case a contractual obligation between the principal and the third person shall be considered to have been created by the contract of the agent. From the terms of the articles and from the report of the commissioners, it appears to have been intended to make this provision accord with the doctrine of Pothier, Mandat (5); see also Molitor, Droit Romain (6), and the corresponding rule of English commercial law which, as is well known, differs in this respect from the modern French law.

(1) L. 5 P. C.

(3) of English edition. (6) 2 Ed. 2Z VOL. Xm.] SUPREME COURT OF CANADA.

As to the right to compensation or recoupement in respect of shortage, I am clearly of opinion that all right to this was waived by the appellants when they received the coal without insisting on its beihg weighed at the ship's side. They thus got the chance of any advantage which might accrue to them from over- Strong J. weight, and it would be out of the question now to say that they should, after having declined a weighing according to the ordinary course of business, in the presence of the respondent, be entitled to claim an allowance for shortage which they allege they have found on an ex parte weighing made in their own yard, after having taken delivery in the manner before mentioned. The appeal should be dismissed with costs.

FOURNIER J.-Les faits qui ont donn6 lieu au pr6sent litige sont en r6sum6 comme suit: - Le 13 ao-ht 1879, J. S. Noad, courtier, de Montr6al, vendit i l'appelant pour le compte de Thompson,

Murray et Cie., marchands, une cargaison de charbon alors A bord du vaisseau des intim6s, appel6 le " Lake

Ontario," attendu d'un jour A l'autre A Montr6al. Cette vente fut faite A raison de $3.75 par tonne de 2,240 livres, et de plus aux conditions not6es comme suit sur le carnet du courtier:

net

Un m6moire de cette vente fut remis i Messrs.

Thompson, Murray & Co., et un autre A l'appelante.

1'arriv6e du "Lake Ontario," celle-ci au lieu de v. prendre livraison du chargement aprbs avoir fait peser de nouveau, accepta la quantit6 d6clar~c dans le connaissement.

Cependant comme la livraison se faisait aupris de sa Fournier J manufacture, lappelante fit peser la cargaison avec soin, et avec des balances v6rifi6es, mais sans avis aux intim6s.

Le r6sultat constata qu'il y avait cinquantecinq tonnes de moins que la quantit6 mentionn6e dans le connaissement.

Avis de ce d6ficit fat donn6 A Thompson, Murray & Co., avec offre du prix de la quantit6 de tonnes reques, et de plus le prix des dix autres tonnes.

Ces offres furent refus6es et les intims intentbrent leur action pour la quantit6 mentionnae dans le connaissement.

L'appelante r6pondit A cette action: lo qu'elle avait contract6 avec Thompson, Murray & Co., personnelle ment et que les intim6s n'avait aucun droit d'action contre elle. 2o que la cargaisonne contenait que 755 tonnes et 580 livros dont le prix se montant A $2,868.72 avait 6t6 offert A Thompson, Murray & Co, avec en outre le prix de dix tonnes de plus, en tout $2,890.72. Cette somme fut d6pos6e en cour, mais avec d6claration sp6ciale que c'6tait sans admettre aucune responsabilit6 envers les intim6s.

3o l'appelante invoquait 1'usage du commerce an sujet du d6ficit ou surplus dans les ventes faites d'aprbs la quantit6 port6e au connaissement comme suit:-- Enfin l'appelante plaidait fraude, en all6guant que 1'intim6 savait que le commandant du " Lake Ontario " 6tait dans l'habitude de signer des connaissements contenant de fausses d6clarations de quantit6s.

L'intim6 r6pondit sp~cialement que le connaissement V. avait et6 r6gulierement signe, les droits de douane pay~s suivant la quantit6 vendue, que a charge avait 6 accept~e par 1'appelante, qui n'avait jamais offert de la rendre.

A cette derniare allgation 1'appelante r6- Fournier pondit qu'elle n'avait pu faire la remise du charbon parce qn'il se trouvait m616 avec d'autre, et que d'ailleurs elle n'6tait pas oblig6e de le rendre.

Apr~s enqufte et audition au m6rite, 1'action fut renvoy6e par le jugement de la Cour sup~rieure.

Les questions soulev6es par les faits de cette cause sont 10 Le commettant peut-il porter une action sur un contrat fait personnellement par un agent qui n'a pas fait connaitre le nom de son commettant?

La deuxiame question ne devrait pas 6tre seulement de savoir si l'appelante est oblig6e de payer la quantit6 de charbon mentionu6e dans le connaissement, ou bien si elle adroit .4 une diminution de prix en proportion du deficit constat6 par le pesage qu'elle a fait faire. En vue du plaidoyer invoquant l'usage du commerce, ne devrait-on pas se demander, de plus, si une vente, faite dans les circonstances de celle dont il s'agit, ne se trouve pas tacitement sujette ! certaines conditions accept6es par l'usage g6ndral du commerce concernant le surplu§ ou d6ficit dans la quantit6 sp6cifi~e dans des ventes de cette nature ?

Quant A la premibre question la maniare dont s'est op6r6e la vente en question fait voir bien clairement que les parties au pr6sent 'prochs, n'ont jamais fait ensemble le contrat sur lequel l'action est fond6e. Ce contrat a 6t fait par l'interm6diaire de J. S. Noad, entre

Thompson, Murray & Co., d'une part, et l'appelante de

1'autre, ainsi qu'il est constat6 par les 6crits 6chang6s entre eux A ce sujet, exhibits 12 et 14.

Ces 6crits ne font aucunement voir que Thompson, Murray

Il r6sulte certainement de ces 6crits que le contrat a t6 fait entre Thompson, Murray & Co., et I'appelante, et non pas entre celle-ci et I'intim6.

I n'y a partant aucun lien de droit entre elles et cons6quemment pas de droit d'action de la part de 1'intim6 contre

1'appelante.

Indubitablement Thompson, Murray & Co., parties au contrat, avec l'appelante ont droit de r(olamer d'elle l'ex6cution do ce contrat, et aucune action n'aurait dft Otre intent6e sans les mettre en cause, afin d'6viter ! l'appelante les dangers d'une seconde action.

Maintenant les faits n'6tant pas douteux que la vento en question a 6t faite par Thompson, Murray & Co., sans divulguer leur qualith d'agents, la loi reconnait-elle A leur commettante (1'intime) le droit d'intenter une action sur un contrat auquel elle n'6tait pas partie ? A cette quesion, deux r~ponses contraditoires se pr6sentent.

L'une, d'aprbs le droit anglais,*est dans l'affirmative, 1'autre d'aprbs le droit frangais dans la n6gative.

Il est clair que ce n'est pas dans le droit anglais que l'on doit chercher la solution d'une telle question. Ce droit n'est pas en force dans la province de Qu6bec, en matibre de contrat.

Les ragles de la preuve en matibres commerciales seulement y out 6t6 admises.

Adopter en matibre de contrat un principe tir6 du droit anglais, diff~rant du droit frangais sur le meme sujet, ce ne serait plus une application de la loi, use interpr6tation, mais ce serait in acte 16gislatif, substituant un systbme de droit 4 celui qui est en force dans la province de Qukbec. v. Quelqu'avantageux que puisse 6tre sous certains rap- 0 . ports la solution offerte par le droit anglais, elle ne peut tre accept6e sans violer 1'esprit du code civil.

est donc tout A fait inutile d'aller chercher de ce c6t&1 desFounier J. autorit6s sur cette question. C'est uniquement dans le droit frangais que nous devons en trouver la solution.

Les autorites ne manquent pas sur le sujet.

Dans le droit romain le mandataire traitait toujours en son propre nom, et le mandant n'avait pas d'action contre les tiers, ni ceux ei contre le mandant. Plus tard, une action 6quitable fat accord6e par le priteur con tre le mandant, en faveur des tiers ; mais la r~ciprocit6 ne fut pas admise en faveur du mandant. Dans le droit frangais, tel qu'expos6 par Pothier, Mandat (1), cette rbciprocit6 n'a pas 6t0 admise non plus. Le droit d'action est reconnu en faveur du tiers contre le mandant dont le mandataire n'a pas divulgu6 le nom.

Mais il n'est pas accord6 au mandant dans le m~me cas.

Les codificateurs di Code Civil de la Province de Quebec ont adopt6 la doctrine du Pothier et l'ont consign6e dans les articles 1716 et 1727.

Mais ils n'ont pas t plus loin.

Ils n'ont pas jug6 Apropos d'accorder au mandant doiut le nom n'avait pas 6t r6v6l6 aux tiers une action contre ceux-ci.

eut peut-6tre

6t0 plus logique d'admettre le r6ciprocit6 du droit d'action en pareil cas,-mais puisqu'ils n'ont pas jug6

A propos d'en faire minme la suggestion A la 16gislature, les tribunaux peuvent-ils suppl~er A cette omission ?

Sans doute que non. Ce serait peut-6tre une am61ioration, mais nous n'avons pas le pouvoir de la d6cr6ter.

A l'origine il n'y avait aucun droit d'action parce que le mandataire traitait toujours en son propre nom, plus tard l'action fut accord6e aux tiers contre le mandant,

Il y a cinq articles dans cette section, le premier nnm6rot6 23, Fournier J. proclame la rAgle g~nbrale de la responsabilit6 du mandant et diff&re pen de Particle 1998 du code Napoleon.

rroplong cependant interprbte de manibre A ne pas Her le mandant lorsque le contrat est au nom du inandataire sans d6claration du noun da principal, except6 dans quelques cas particuliers. Cette interpytation est en harmonie avec la doctrine du droit romain; mais elle est en opposition directe avec celle de Pothier, qui est d'accord avec les lois anglaise, 6cossaise et ambricaine. L'article soumis est bas6 sur l'expos6 de ]a rbgle de Pothier et comprend tons les actes du mandataire soit qu'il sit agi en son propre nom on en celui du mandant.

Les seuls cas excepths sont ceux mentionnis dans larticle.

On voit que les codificateurs n'oat adopt6 que 1'opinion de Pothier qui reconnait le droit d'action des tiers contre le mandant et rien de plus. Les articles de notre code ne diffirent pas en principe de ceux du code frangais, on peut citer l'opinion des commentations sur ce dernier comme applicables A la solution de cette question.

Troplong, Du Mandat (2).

Vide atssi Nos. 523 & 535.

Le mandataire agissant en son propre nom s'oblige directement, avons-nous dit.

A cette proposition viennent se joindre deux ragles que je trouve constaties par les nonumants los plus importants de la jurisprudence.

Savoir: Que le silence gard6 sur I'existence du Nfandat, fait lo. Que le mandant n'a pas d'action contre les tiers; 2o. Que les tiers nont pas d'action contre le mandant.

Quando mandatarius, says Casaregis, simpliciter contrahil, non expressio mandato, adeo in redicatur contractus, ut mandanli amplius contra tertium nulla competere possit actio.

Et plus bas il ajoute ces paroles remarquables: Respeclt habito ad tertium, mandans consideratur ut persona extranea.

Ainsi point d'actions contre les tiers de la part du mandant. (1) Observations des codifica- Obligations envers les tiers(article teus; Mandat, Ch. Ill, Section II,

No. 522.

Laurent (1):

)883 Quels seront dans cette hypothse (dans le cas of le mandataire V. a trait, en son nom personnel avec les tiers, sans dire qu'il agit CorroN Co. comme mandataire) les rapports du mandant avec les tiers ? n'y C a aucun lien entre le mandant et les tiers, puisque les tiers n'ont pas trait6 avec le mandant: celui-ci 6tant 6tranger A la convention, it ne peut s'en pr6valoir contre les tiers, deI mIme que les tiers ne peuvent s'en pr~valoir contre lui.

Sebire

* Carteret (2) ; DeLamarre & Le Poitvin (3)

et aussi Duranton (4):

n'est pas douteux, quand le mandataire a trait6 au nom du mandant, que celui-ci peut agir directement contre le tiers avec lequel le mandataire a trait6, et, r~ciproquemement, que le tiers peut agir directement contre le mandant, mais il nen est pas de mime quand le mandataire a traitb en son propre nom, ainsi que cela avait constaument lieu chez les Romains, et comme on le voit parfois chez nous en matiare de mandat ordinaire, et presque toujours quand c'est un commissionnaire qui traite. Dans ce cas, le mandant a besoin, pour agir contre le tiers, de se faire ceder 1'action du mandataire contre le mandant, pour agir contre ce dernier; autrement, Pun et l'autre n'exercerait que Faction g6n&rale de l'art

1166, et au nom de leur d6biteur.

Je n'en rep6terai pas ici toutes les citations; je me contenterai de r6f6rer aux notes du Juge en Chef, Sir A. A.

Dorion-qui en contiennent une longue 6num6ration, ainsi qu'au factum de 1'appelante qui en contient plusieurs autres. Pour les raisons adopthes par 1'Honorable Juge en Chef et par 1'Honorable Juge Ramsay je suis d'opinion avec eux que 1'intim6e n'a pas droit d'action contre 1'appelan*te en vertu de la vente faite -i cette dernibre par Thompson, Murray & Co.

UIn des motifs du jugement de la majorit6 de la Cour du B. R., est que 1'appelante ayant offert $2,390.72, seul montant dci, d'apris le contrat, suivant elle, s'est par cette offre d6sist6 de son objection contre 1'existence du droit d'action.

Cette proposition serait juste, si

1'offre eft 6t6 faite sans reserve.

Mais comme au con- (1) Vol. 28 No. 62.

12, 82, 83, 121.

SUPREIfE COURT OF CANADA.

[VOL. XTII. traire elle n'a t6 faite qu'avec la d6claration formelle v. que c'6tait sans ancunement admettre qn'elle 6tait endett6e envers 1'intim6e, cette offre'ne peut avoir I'effet de priver I'appelante du b6n6fice de son autre moyen de d6fense. Dans 1'ordre des plaidoyers c'est la question Fournier J-de 1'existence da droit d'action qui doit tre d&cide la premibre.

Si elle est d6cid6e en faveur de 1'appelante, elle met fin A la contestation et 1'action doit tro renvoy6e.

Ce n'est que dans le cas oix la d6cision est contraire A l'appelante que le second plaidoyer doit tre examin6 et qu'il peut y avoir lieu de d6clarer si les offres sont suffisantes ou non.

Cette manibre de plaider est d'ailleurs conforme au Code P. 0. et A la pratique suivie dans ]a cour de province de Qubbec, et no peut pas Atre invoqu~e contre l'appelante comme une r~nonciation de sa part A son premier plaidoyer. Elle est aussi conforme h 'autorit6 de Carr et Chanveau. En traitant de 'ordre des plaidoyers il s'exprime ainsi (1):

peut A fit ncessairement Stre A dfenses Bioche Vo. Acquiescement (2):

ler et Acceptant l'opinion que le droit d'action n'existe pas il devient inutile A ce point de vue de s'occuper du.

second plaidoyer.

Cependant je crois devoir faire v. l'observation qu'il ne me parait pas avoir et6 pris en consid6ration dans son ensemble. On a perdu de vue, je crois, le fait que l'appelante pr6tend quo la vente dont it s'agit doit Atre consid6r6e comme ayant 6 faite Fournier J. conform6ment a l'usage du commerce.

D'aprbs cet usage le surplus ou d6ficit ne doit pas exc6der dix tonnes. Dans le cas contraire il donne lieu A une r6clamation pour paiement de l'exc6dant on pour diminution du d6ficit. L'usage invoqu6 a 6t6 prouv6 de la manibre la plus satisfaisante et l'appelaite, dans le cas oih le droit d'action existerait devrait en avoir le b~n6fice.

On a sembl6 mettre en question le droit de l'appelante de faire un semblable plaidoyer A une action fond&e sur un contrat et dire que tout au plus elle pourrait se porter demanderesse incidente.

Cela n'est pas n.cessaire d'aprbs notre manibre de plaider dans la province de Quebec.

Dans un cas comme celui-ci il y a lieu A 1'exception tout aussi bien qu'A l'action quanto minoris. La jurisprudence et la pratique sont d'accord de depuis longtemps (1) A 6viter la multiplicit6 des demandes incidentes, pour admettre la compensation plaid~e par exception, pourva que l'exception soit accompagn~e de conclusions sp6ciales.

La diminution du prix invoqu6 par l'appelante 6tait bien plaid6e.

En r6sum6 je suis d'avis, 10 que l'intim6e n'a pas droit d'action; 2o qu'en supposant que ce droit existAt, l'appelante avait droit d'invoquer les modifications A son contrat apport6es par l'usage du commerce.

Il y a en outre une all6gation de fraude, mais elle n'a pas t6 prouv6e.

Pour ces motifs je suis d'avis que l'appel devait etre accord6.

HENRY J.-This action is brought against the

(1) Voir Beaulieu v. 6 C. R. p.

[VOL. XIll. appellants in this case to recover the value of a cargo of coal shipped by the respondents in their own vessel on a bill of lading signed by their own captain. The appellants purchased, not from the respondents, but from Messrs. Thompson & Murray, and J. they purchased from them, not as agents of the respondents, but as being the owners of the property, goods or chattels so purchased by the appellants. The real owner of the goods at the time was not disclosed to the purchaser.

No doubt at one time, neither in France nor in Quebec could either of these parties bring an action, but the law of Quebec was changed to the extent that the party purchasing who deals with the agents of an undisclosed principal is entitled to bring an action against the principal. is laid down in the code, but it goes no further ; it does not say that the mandator shall have an action against the party who deals with his agents. But we are told that because there is an action allowed by the code against the mandator, therefore it works both ways.

We may fairly assume that if it was intended by the code that that should be the case it would have been provided in the code as well that the mandator should have the right of action as that the party contracting with his agent should have the right of action against him. I therefore take the ground that this action will not lie under the present legislation in the Province of Quebec.

Then there is another objection that is taken by the party here; it is this: He said, " You purchased on this bill of lading, and you had the choice of purchasing the quantity mentioned in the bill of lading, or had the option of having it weighed at the expense of the sellers, Thompson, Murray & Co."

Practically, they agreed to take it on the bill of lading, and, under ordinary circumstances, they might possibly be bound by it but for two reasons. In the first place it was proved on the trial and uncontradicted, that there was a universal V. practice in Montreal of purchasing cargoes on bill of lading, and it was only intended to cover a deficiency of four or five tons; it was never understood, and never intended by the parties that the shortage should go beyond that in such a contract.

If that was the case and the parties said they would go by the bill of lading, they would not be answerable for more than four or five tons, and not for such a deficiency as forty or fifty tons. Then, there is another question, which is an important one here. When these parties disclose themselves they must take the contract in all its relations, and imported into that contract is the fact that their captain signed the bill of lading, certifying that he had all this coal on board when he had not.

Then is it proved that he had not ? It is, for this reason, that every single load of that coal is weighed, and there is not the slightest suspicion of the correctness of such weighing, and it is clearly shown that the quantity short is fifty tons.

Then the owner of the coal says to the buyers, " You must pay us for that amount of coal!"

The others say, " No, we did not get that amount of coal." " But," says the owner, " If you did not get it, the sellers say you agreed to take it according to the bill of lading of Thompson, Murray & Co."

They reply that they did not buy the bill lading, but they bought a certain quantity coal as guaranteed by the bill of lading.

They did not become the endorsers of the bill of lading, but got their right to that property by purchase direct from Thompson, Murray & Co., who told them " we have got a bill of lading saying that the captain has received so many tons of coal on board."

But the owners come in afterwards, after the amount is in dispute, and say " you are bound to pay us because you agreed to take the quantily in the bill of ladin." "It is true, we did agree," the appellants say, " but "we agreed through the false representations made by "your servant, the captain, that he had that quantity on board, for which false representation you are answer- Henry J" able, and if there is liability upon us in one respect, "there is also liability on your part to counteract that." I am not sufficiently acquainted with the administration and procedure of the law in Quebec, but I believe I am justified in saying that under the pleadings and practice and administration of the law there, it is a good defence for those parties to come in and say, " we "did not get that coal, we bought it on the misrepresen- "tation of your servant, you never gave it to us." That being the case, and that being the law, I feel that this appeal ought to be allowed, and that these parties should be declared not liable to pay for coal which they never got. It is said, " you took the option at the time " and could have had it weighed in the presence of the "parties at the ship's side at the expense of the seller." I maintain that it is no matter where the coal is weighed if the evidence is sufficient to convince judge and jury that the quantity is as alleged, and that it is a correct weighing. The party was not obliged to get it weighed, and he was not obliged to give the other parties notice that he was going to weigh it.

All that is required is to prove satisfactorily that the quantity was not there, and if it was not there, the question arises: Have those parties who represented that it was, the right to be paid for what they did not supply?

I am of opinion that the appeal should be allowed.

J.-It is in evidence that Thompson Murray & Co. are the general agents at Montreal of the Canada Shipping Co., and well known to be such. Now, when the appellants bought coal from such a firm, publicly known as the agents of the respondents, can they be said to have dealt with an undisclosed v. principal

See also B6darride

Leaving this question aside however, I am of opinion with the Court of Queen's Bench that the Hudon Company, in tendering as they have done and depositing in Court with one of their pleas, the sum of $2,890.72. as part payment for the coal in question, have acknowledged the Canada Shipping Co. as their vendors, and have admitted the said Canada Shipping Co.'s locus standi in this case. The contention that they cannot be bound by the admission contained in that plea, because by another plea or in the same plea they denied the plaintiff's rights altogether, or any privity of contract with them seems to me untenable.

The conclusion of their said plea of tender and deposit is as follows:

It is true that a party is allowed to fyle incompatible pleas, but it is not the less true that the offer of a confession of judgment, even only for a part of the amount demanded, or a plea of tender and payment, in court, must be held to be an admission by the defendant of the plaintiffs title as his creditor. In the case of a confession of judgment, the plaintiff may accept it, and in the case of a tender and payment in court, he is entitled i883 to receive the monies paid in, without prejudicing his v. HUDON claim to the remainder. In Marc Aurele v. Durocher (1), though the defendant had offered, in one of his pleas, to confess judgment, he claimed that the action should S N be dismissed, Mr. Justice Johnson said:

TaschereauL

Still less importance attaches to the contention that this offer was made under reservation of all matters previously pleaded. It is intelligible that under the system of pleading that still exists in this country a defendant may plead everything he chooses, under reservation of everything else that he has already pleaded; that is to say, that he can go on contesting the action under as many new grounds as he pleases, reserving all that he has pleaded before tending to the same end, viz: the dismissal of the action; but I cannot understand how he can be allowed to reserve to himself the benefit of previous pretensions set up in order to get the action dismi sed, while he admits that judgment ought to be rendered against him. A defendant may ask for the dismissal of an action against him for as many good reasons as he is able to give; but he surely cannot be allowed to ask in nineteen consecutive pleas that the plaintiff be sent out of court; and reserve to himself the benefit of all these pretensions in a twentieth plea admitting that the same plaintift is entitled to judgment; or, in other words, asks to reserve means of defence which he expressly renounces.

What was said in that case by Mr. Justice Johnson about a confession of judgment applies with still greater force, it seems to me, to a plea of tender ana payment in court.

In Gorrie v. The Mayor of Montreal (1) the defendants had pleaded a tender of part of the sum claimed with also a defence as fonds en fait. The Superior Court had dismissed the action altogether. The presiding judge, adopting the same ground as taken in the present case by the appellants, had said:

The defendants admit the balance of X75, which is all the plain. tiff is entitled to claim, but if the aotion does not exist, I can take no notice of such tendcr, it amounts to nothing.

The case, however, was carried to appeal, and the judgment was reversed, and defendants condemned.

9 L. 0. R. 375, to re Boulanget v (1) 8 L C. R, 236, also in note

Thu Mayor.

Judgment in appeal not reported; I have a note of it through the kindness of the prothonotaries of the Superior Court, Montreal.

Also in Boulanget v. The Mayor of Montreal (1) though a tender had been pleaded and payment in court of the sum so tendered had been made, the Superior Court had dismissed the plaintiff's action altogether, but on appeal this judgment was reversed and it was held, Sir L. H. Lafontaine delivering the judgment of the court, that a plea in a case by which the defendant admits that a part of the sum claimed is due to the plaintiff, praying actd of the deposit of the sum so admitted, and also praying that the plaintiff's action for the surplus be dismissed, entitles the plaintiff to a judgment for the sum tendered and paid into court.

In the present case, it is true, the defendant's plea denied entirely the indebtedness, but how could he do so,-or what effect can this have, when he offered the plaintiff a part of the sum claimed.

The law is that if bne pays a debt voluntarily, knowing what objections he could oppose to the payment, he is presumed to renounce his right to avail himself of such objections. , And this even if he pays under protest and reserve.

Solon Nullit6s says (2) :

And Bedarride de la fraude

& aucunement

A

.

.

La reserve contraire au fait n'opre pas, lorsque 1'ex6curion est libre is a maxim equally applicable to procedure and to contracts and obligations, and the principles upon which it is based rule the pleas in a Taschereau case, as well as the acts of the parties out of the case. J.

If a party executes an act or performs an obligation under all the circumstances which would make such execution or performance a valid implied ratification of such act or obligation, the protest or reserve with which this execution or performance might be accompanied are of no avail and do not hinder the effect of the ratification.

Here, the defendants tendered as voluntarily as possible a part of the sum claimed; they did so with the full knowledge of their possible objections to the plaintiff's claim in toto: the protestations and reserves in their plea consequently fall to the ground.

Buchanan J. in Bertrand v. Hinerth (2), held that a ddfense au fonds en fait does not *affect or impair the strength and force of admissions contained in another plea.

In Monty v. Ruiter (3), Berthelot J. held : "That in an action for false imprisonment, the admission of defendant in one of his pleas is sufficient 'proof of his having caused the arrest of the plaintiff, although another of the pleas is the general issue, and that such an admission relieves the plaintiff from the necessity of making other proof of the fact."

In Viger v. Beliveau (4), a plea of tender had been fyled with a plea of general issue, and the Superior Court had dismissed the actoin. The case was carried to appeal, and it was then held by'Aylwin, Duval, Meredith and Monk JJ., that the defendant having ad- (1) Vo. acquiescement

L. C J.

(3) 5 L C. J.

mitted by one of his pleas the existence of a verbal

IS 3 lease, the admission of this plea should be taken v. HuioN against him, although he had also pleaded the general Co. issue, and that when there is a plea of tender for part of the sum claimed the action cannot be dismissed inSHIPPG Co. toto.

Taschereau J. In Bussidre v. Blais (1), Mr. Justice Meredith, for the court, referring to an admission in the defendant's plea, says:

"Here we have a very unequivocal recognition of the plaintiff's right of property; and according to a recent judgment of the Court of Appeals, the plaintiff has a right to the benefit of that admission, notwithstanding the ddfense en fait filed by the defendant."

Upon the question whether the defendants, present appellants, are entitled to claim a reduction for the alleged deficiency in the quantity of the coal, I concur fully in what the learned Chief Justice of the Court of

Queen's Bench said for the court, as follows:

Upon the second question, we are, I believe, all of opinion that the respondent having made his option to take the carg> of coal for the quantity mentioned in the bill of lading, instead of having it reweighed with the sellers, as he was entitled to, cannot claim a reduction in the price on account of deficiency in the quantity, except on the ground of fraud, and there is no fraud proved in this case.

It would be extremely dangerous to allow a purchaser who has chosen to receive delivery in bulk and without weighing, to assert, two or three weeks after such delivery, and after the coal has been mixed with other coal, so as to prevent any verification by the seller, that there was, according to his own calculation, a deficiency for which he was entitled to a reduction in the price of his contract. The respondents are, we consider, by the option which they have made to receive the coal in bulk, concluded against claiming a reduction of the price of the coal.

Moreover, their laches in not giving notice of their intention to weigh the coal and in mixing it with other coal, so as to prevent verification, before they informed the sellers of the preten led deficiency, would in any ordinary case, be sufficient to reject their claim for a reduction, and

This seems to me tuanswerable. The defendants, appellants here, having waived their right to have the quantity verified at the time of delivery, made the taschereau option to take the bill of lading as conclusive proof of the quantity They are estopped from now complaining of their own option.

There certainly was no fraud on the part of the vendors; there may have been an error in the shipment of the cargo, or a part of it may have been jettisoned.

Moreover, if the defendants, notwithstanding their option, thought that they had a claim for deficiency, they should have given notice to the plaintiffs of their intention to reweigh, and should certainly not have mixed the coal.

Their mixing the coal with other in their yard was another acceptance of it, as sold per bill of lading. The delay in ascertaining that deficiency and notifying the plaintiffs of it was also too long.

" Il suffit de remarquer que la verification doit 6tre provoqu6 et faite dans le plus bref d6lai," says Pardessus No. 285.

All the authorities are clear in the same sense.

I am of opinion that the appeal should be dismissed. It is unnecessary for me to consider the question decided affirmatively by the court appealed from, whether under our law, a principal can bring an action upon a contract made by his agent, when such agent contracted in his own name and without disclosing his principal. do not wish my silence on this point, however, to be construed as throwing a doubt on my part on the correctness of the decision given by the court below on that part of the case.

GWYNNE J.-This is an appeal by the defendants in an action brought against them in the Superior Court of the Province of Quebec by the plaintiffs upon a contract alleged to have been entered into between the VOL. XrI.] SUPREME COURT OF CANADA.

plaintiffs and defendants through the intervention of a broker by bought and sold notes. The plaintiffs in v. their declaration, in short substance, allege that on the 13th day of August, 1879, the plaintiffs acting by a firm of the name of Thompson, Murray & Co., doing business at Montreal and general agents of the plaintiffs for the J* Province of Quebec, through James S. Noad of Montreal, broker, sold to the defendants at their request a certain cargo of best South Wales black vein steam coal, then on board the plaintiffs' ship, called the Lake Ontario, at the rate of three dollars and seventy-five cents per ton of two thousand two hundred and forty pounds, customs duty paid ex ship. That said cargo according to to the bill of lading of said ship contained eight

-hundred and ten of said tons and five hundred weight;

that (among other things) it was stipulated as a condition of the said sale that the defendants should have the option of taking the said coal at the total weight appearing on the face of the bill of lading or of having said cargo reweighed at the expense of the seller and of paying for the exact number of tons so found to be con tained in said cargo, that thereupon the said Noad on the said 13th day of August delivered to the defendants a bought note signed by him, setting out the said sale and said terms and conditions thereto attached, and on the same day delivered to said Thompson, Murray &

Co. an identical note signed by him called a sold note, which last note is in the words and figures following (1).

That the ship arrived at Montreal on 3rd September;

that the defendants thereupon elected and agreed to accept the said cargo according to the weight given to it on the face of the bill of lading, being entitled to any surplus and accepting the risk of deficit that might exist over or below the said bill of lading weight and refused to-have the same re-weighed at the expense of the vendor; that the said cargo was duly delivered to the defendants, duty paid ex ship as per bill of lading, on the brd of September, 1879; that said bought and sold notes and the invoice which was rendered to Gwynne J. the defendants according to the usage and custom of trade in that behalf and the previous dealings- between said parties bear the name of Thompson, Murray & Co., .

but said coal was ever the property of the plaintiffs, and plaintiffs were the principals in said transiction, and the said ale was made in plaintiffs' interest and on their behalf alone, as the defendants well knew; the declaration then alleges non-payment of the price agreed upon or any part thereof by the defendants. The declaration also contains a count for goods sold and delivered.

To this declaration the defendants plead, 1st. A general deiial of all allegations in the declaration; that the defendants never had any dealings with the plaintiffs, but that in all transactions of which mention is made in the declaration, the defendants contracted only with the firm of Thompson, Murray & Co.

2nd plea. Admitting that the defendants, on the 13th August, 1879, bought from Thompson, Murray & Co., through Noad, a cargo of eight hundred and ten tons (of twenty-two hundred and forty pounds each ton) and five hundred weight of the best South Wales black vein steam coal, mentioned in the bill of lading thereof, as being on board the ship Lake Ontario, then on her voyage and expected to arrive within a few days at Montreal, at the price of $3.75 per ton admitting also the arrival and the delivery to the defendants of a quantity of coal which the defendants caused to be weighed on an approved scale, avers that instead of said coal weighing 810 tons, 5 cwt., as bought by defendants, and as mentioned in the bill of lading, it weighed only 755 tons and 580 lbs.; that by the custom and usage of mer- v. chants the vendor of a cargo of coal as per bill of lading is always understood to sell the quantity mentioned in the bill of lading without any large or important variance therefrom, the purchaser being at all J. events understood to pay only for the quantity delivered; that vessels of the class of the "Lake

Ontario," in transporting coal are well known to the mercantile community not to vary to an extent exceeding five or six tons, the surplus or deficiency being always less than ten tons, but that the deficiency of the cargo in question was 55 tons; that in purchasing said cargo and in making option to receive the same as per bill of lading instead of having said coal weighed at the expense of the vendor, the defendants never agreed or intended, and could never have been understood according to the custom and usage of trade to have agreed or intended, to assume the risk of a deficiency in said coal of more than ten tons; that the plaintiffs, at the time of the shipment of the coal on board said vessel and at the time of said contract and of the delivery of the coal, were and are now the owners of said vessel; that the captain of the said vessel as servants of the plaintiffs in signing the said bill of lading, represented that the quantity named therein was on board the said vessel ; and that it was on the faith of that representation and of similar representations made by said firm of Thompson,

Murray & Co., that the defendants agreed to take the said cargo as per bill of lading without asking the reweighing thereof; that the said plaintiffs were and are aware that the said master of said vessel has been in the habit of signing bills of lading for cargoes of coal without ascertaining the quantity thereof, and have allowed him to do so, assuming themselves the responsibility incurred in consequence; that, to the v. knowledge of the plaintiffs, the said ship was not loaded in the ordinary and regular way, and said cargo was not weighed at the time when it was put on 'board the said vessel; that neither the plaintiffs nor Thompson, Murray & Co. paid for any more than the quantity of 755 tons and 580 pounds, the quantity delivered to defendants, and that said plaintiffs and Thompson, Murray & Co. well knew that the said cargo was not of the quantity of 810 tons, 5 cwt., but only of the quantity delivered to defendants as aforesaid, and that said Thompson, Murray & Co. in offering said cargo to be accepted for a cargo of 810 tons, 5 cwt., practiced a fraud upon the defendants,

The plea then alleges a tender to Thompson, Murray & Co. of $2,890.72, being at the rate of $3.75 per ton for 755 tons and 580 lbs. delivered to the defendants, and ten tons added as the extreme limit of variance allowed according to the custom of the trade together with interest thereon from the 3d September, 1879, which sum Thompson, Murray & Co. refused, and thereupon the defendants bring it into court and plead it as a payment into court in this cause.

To the first of these pleas the plaintiffs reply denying all the defendants' allegations therein to be true and reaffirming the truth of the allegations in the declaration.

To the second plea they reply that they were and are wholly ignorant of any weighing of said coal as alleged in the plea, and that they never had any notice thereof, and that the defendants chose to buy as per bill of lading instead of actual weighing, in the hope of making a profit thereby as they would have been entitled to do even had the surplus amounted to 50 or 60 tons.

The plaintiffs further specially deny that any such custom and usage of merchants as alleged in said plea exists.

That cargoes vary considerably in their v. delivery weights, and that the defendants accepted all risk in connection with the actual output of the cargo in question.

That the said bill of lading was signed by the captain of the "Lake Ontario" in good faith, (aye J. after the customary weighing at the point of shipment, and in the belief that the said bill of lading represented the bond fide weight of said cargo.

Ontario ever to the knowledge of the plaintiffs acted in the manner falsely set forth in said plea, and they deny that the said ship was not loaded in the ordinary and regular way, and that the said cargo was not weighed at the time the coal was laden on board the vessel, as falsely alleged in said plea, and they aver that the defendants accepted said cargo according to said contract and their said option to take the same as per bill of lading, and for more than a month after said acceptance did not pretend or object that they were not liable because of any of the matters alleged in the said plea and they have never tendered back such cargo and the plaintiffs deny tha, they recognize the tender alleged in defendants' plea as made previous to the institution of the action, but insist upon its insufficiency.

And for second answer to said second plea the plaintiffs say that the allegations of said plea are false and that the allegations of plaintiffs' declaration are true.

The above pleadings contain all the material issues joined between the parties in this action.

As to the first part urged by and on behalf of the defendants, namely: that the contract was with Thompson, Murray & Co., who therefore should be the plainit is not open to the defendants to urge that contention in the present action, for after a plea of payment into court the defendant cannot nonsuit the plaintiff take any objection however valid to the sufficiency J. of the cause of action to which he has . so pleaded. Wright v. Goddard

The plea admits all material allegations in the declaration which the plaintiff might be compelled to prove in order to recover the amount paid in.

Dyer v. Ashton (2) ; Cooper v. Blick (3) Wright v. Goddard.

Then, as to the allegations in the defendants' second plea to the effect that the plaintiffs were aware that their servant, the captain of their vessel, was in the habit signing bills of lading for cargoes of coal without ascertaining the quantity thereof; and that to the knowledge of the plaintiffs their vessel was not loaded with the cargo in question in the ordinary and regular way, for that the cargo was not weighed at the time it was put on board the vessel; and that the plaintiffs paid for no more than the 75 tons and 580 lbs. delivered to the defendants; and that they knew the cargo, as delivered to the defendants, contained no more; all these allegations impose upon the defendants the burden of proving them and they have failed to do so. The case, therefore is made to rest upon the allegation of difference between the quantity as stated in the bill of lading and that delivered to the defendants, and the alleged usage of the trade in accepting delivery of a cargo as per bill of lading.

Upon this point, the contention of the plaintiffs is that when a purchaser of a cargo accepts, as the defendants did here, delivery of the cargo as per bill of lad-' ing, both vendor and purchaser assume the risk of any VOL XlIL]

SUPREME COURT OF CANADA variance, however great it may be, between the actual quantity delivered and that as stated in the bill of lad- v. ing, so that in this case, if in truth only 100 tons had been actually delivered, the defendants must nevertheless pay for 810 tons, and if 1200 tons had been delivered, in fact, they should still only have to pay only for the 810 tons; on the contrary, the contention of the defendants is that it is well understood in the trade that in a vessel of the class of the Lake Ontario the difference should not exceed ten tons, and for such a variance it is admitted by the defendants that the vendor and purchaser alike assume the risk. The contention of the plaintiffs, if it should prevail, would establish a condition of things much more favorable to a vendor than to a purchaser, as it is more likely to occur that a cargo on board of a vessel should be less than the capacity of the vessel than that it should be, to any considerable extent, greater than the vessel's capacity; but the plaintiffs contention seems so to shock e sense of justice that no such usage as they contend for ever could, in my judgment, be permitted to prevail in law, and indeed it is not suggested in the evidence that such a usage is supposed to exist, or that, in fact, such a case ever occurred. The evidence seems to me to establish that a clearly proved variance of 55 tons out of a cargo of

810 tons, as alleged here, would be so utterly exceptional and unreasonable that the law could not justify the plaintiff's recovery for 810 tons, if in truth only

755 tons had been delivered; and if the plaintiffs here had had notice given them of the intended weighing by the defendants, on their own scales, of the cargo as delivered so as to enable the plaintiffs to check the weights, and if then it had been established beyond doubt that the alleged deficiency in the cargoes existed, and if the defendants had promptly asserted their claim and ascertained the deficiency so as to enable the plaintiffs to assert their claim against their vendors to v. correct an error which, however it occurred, we must upon the evidence, take to have been an innocent mistake, I cannot doubt that the defendants would have Cbeen entitled to redress in this action.

It is, however, 1 suggested that although it is admitted that for such a deficiency as is alleged by the defendants if satisfactorily proved to have existed they are still entitled to redress, yet that they are not so entitled as a defence to the present action, and that to obtain redress they must bring an action upon the bill of lading.

I can see no foundation whatever for this positon. In fact the defendants had nothing to say to the bill of lading, in the sense of its having ever belonged to them as their property. They did not acquire their title to the cargo through any transfer to them of the bill of lading. It is not indeed suggested that it was assigned to them. They acquired their title by the contract contained in the bought and sold notes by which they might accept delivery either according to the statement of the qantity in the bill of lading or by weight over the ship's side, and they had no occasion even to look at the bill of lading, unless it might be to see whether the qantity stated in it was the same as was stated in their contract.

The bill of lading as an evidence of property discharged its functions when the plaintiffs, who were the consignees and owners of the cargo, received the cargo.

To admit that the defendants are entitled to redress and compensation for the alleged deficiency, if they bring their action upon a bill of lading which never was their property, seems to me to be a mockery of their complaint.

However, inasmuch as the defendants gave no notice to the plaintiffs of their intended weighing of the coal upon the defendants' own scales, and so the plaintiffs had no opportunity to check the weights, and as the defend-