Majority
ARMAND GAGNON and LLOYD H. PAUL
(Mis-en-Cause).
ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Judgment of the Court
ABBOTr J.:-In August 1963, appellant contracted to purchase a substantial quantity of canned vegetables from Conserverie St-Denis Lt6e, (against which a Winding-Up Order was subsequently made and which is hereinafter referred to as the Insolvent). The contract was of a nature known in the trade, apparently, as G.I.N.D., "goods invoiced and not delivered". The merchandise was paid for in advance, but not delivered. Some of it was not in existence at the time the contract was made.
In subsequent weeks, some of the merchandise was delivered but, as at October 26, 1963, some 9,541 cases of assorted vegetables remained to be shipped.
1 Que. Q.B.
R.C.S.
Shortly thereafter a fire occurred at the premises of the insolvent and, on November 8, 1963, the latter wrote appellant, confirming the undelivered quantities and informing appellant that its merchandise had been destroyed.
On December 23, 1963, solicitors for appellant wrote the insolvent stating that, in view of the nature of the sale, et al. title had not passed to appellant and, accordingly, any loss suffered as a result of the fire was to be borne by the insolvent. This letter contained the following statement:
In February 1964, appellant instituted an action against the insolvent before the Superior Court, asking for judgment ordering the latter to deliver the balance of the merchandise purchased, or, in the event of the insolvent's failure so to do, condemning it in the sum of $28,707.98.
The action was accompanied by a conservatory attachment in virtue of which, assorted merchandise found by the bailiff at the premises of the insolvent, was placed under seizure, but the goods in issue here were not at that time identified by the bailiff.
The insolvent pleaded to the action, but subsequently confessed judgment and, on June 1, 1964, judgment was rendered declaring the conservatory attachment good and valid, ordering the insolvent to deliver the merchandise
<<jusqu'h concurrence des quantit6s et qualit6s d6crites dans le in default of which, the insolvent was condemned to pay to appellant the sum of $28,707.98, with interest and costs.
However, no further deliveries were made to appellant, and on August 20, 1964, a winding-up order was issued against the insolvent. By judgment of the Superior
Court, the mis-en-cause were subsequently appointed joint liquidators.
On or about September 14, 1964, appellant filed with the liquidators proof of claim, as an unsecured creditor, in the amount of $28,707.98 plus interest, in accordance with the vterms of the judgment of June 1, 1964 above referred to. Subsequently, the liquidators invited tenders for the purchase of all the stock in trade of the insolvent, and the tender of the respondent, for a total price of $226,000, was accepted, subject to the following condition:
Delivery of this stock in trade was made from time to time to respondent by the liquidators following an inventory completed on December 8, 1964.
On February 5, 1965, appellant filed a petition, which initiated the present litigation, asking that it be declared owner of the specified quantity of canned vegetables above referred to. The liquidators did not contest the petition, but submitted to justice. The respondent intervened and claimed ownership of the merchandise in question under its contract with the liquidators. Appellant's petition was granted by the learned trial judge, but that judgment was unanimously reversed by the Court of Queen's Bench'. The facts which I have recited are set out somewhat more fully, in the reasons of Taschereau J., who delivered the unanimous judgment in the Court below. They are not now really in dispute.
The issue here, as in the Court of Queen's Bench, was stated concisely by Taschereau J. as follows:
A After discussing the authorities, and referring to certain evidence as to identification of the goods, he said: A