Fraser v. Fraser

A

*Oct.

(PLAINTIFF)...

..............

.

PPELLANT; AND

*Feb. 7.

B.

(DEFENDANT)..

......

RESPONDENT. ON APPEAL

FROM THE SUPREME

NEW BRUNS- WICK, APPEAL DIVISION

By contract dated September 3, 1927, respondent agreed to sell and appellant to buy 20 carloads of white potatoes, Cobblers or Green Mountains, Canada Grade A, at 90 cents per 90 pounds, bulk, delivered at rate of 5 cars per week, payment to be made in cash against documents.

All cars were to be Government inspected and certificate of grading was to accompany the draft for each car as shipped. The contract did not specify time of shipment, but no Government certificate as to grade could be obtained before October 1 (Root Vegetables Act, R.S:C., 1927, c. s. 19).

On September 17 the broker who had arranged the contract wired respondent: " Thompson and Alix (appellant) would like you ship one car this coming Monday against their contract can you do so if not kindly wire immediately present price and conditions," to which respondent replied: " Will ship one car Thompson and Alix 90 per bag bulk to-morrow or Tuesday best can do."

A car was shipped on September and was followed by another. Appellant refused to accept and pay for these, claiming they were of inferior quality, whereupon respondent refused to make further shipments. Appellant sued for damages. The jury found that the two cars were shipped under the contract, that the potatoes therein were grade A, that respondent did not commit a breach of the contract, that respondent, by appellant's statements and conduct, was justified in repudiating the contract and relieved from making further delivery under it; but the trial judge held that, on interpretation of the documents, the two cars were not shipped under the contract, and, notwithstanding the jury's findings, ordered judgment for appellant. The Supreme Court of New Brunswick, Appeal Division (4 M.P.R. 245), set aside the judgment and ordered a new trial.

Appellant appealed, and respondent cross-appealed, to this Court, each asking for judgment in its or his favour and (there having been already two trials) for a final decision that would avoid further trials.

Held (Lamont J. dissenting): Appellant had not repudiated the contract, and was entitled to damages for non-delivery by rcspondent. Per Smith J.: Assuming the first car of potatoes was shipped on account of the contract (requirement of crtificate of grading being waived as to it), and was of the required quality, appellant's rejection of it *PRESENT:-Rinfret, Lamont, Smith, Cannon and Crocket JJ.