Majority
interfered with by the defendant Kirkland in a matter in which he does not appear to have had any concern JoENsoN and wholly unauthorised in law.
KIVK. J.-The appellants are lumber dealers doing business at Windsor, in the County of Essei, and the respondents are lumber dealers doing business in Detroit, Michigan.
Judgment of the Court
Early in May, 1891, the appellants sold, and the respondents purchased, a certain quantity of pine lumber at various prices according to the grade, and delivery at Windsor within a specified time. The contract was wholly by correspondence.
The letter of the appellants of the May, 1897, completed the bargain between the parties, and contained the following clause:
and the only question in this case is as to whether the inspection thus provided for was in fact made by a person agreed upon between the parties.
The action was tried before Mr. Justice Ferguson without a jury, and judgment was rendered for the appellants. Upon appeal to the Divisional Court the judgment was set aside and a new trial granted, which judgment was confirmed by the Court of Appeal, Mr. Justice Maclennan dissenting. The case now comes to this court in appeal from that decision.
A majority of the judges of the appellate courts below seem to have considered that the inspector referred to in the letter, a part of which I have just set out, should have been agreed upon before he began to inspect at all. If they are correct in that view the appeal must be dismissed.
We are of opinion, however, that that is not the correct view, and the question is whether or not both parties, at any time before the inspection was completed, agreed upon Jubinville, who actually did inspect the lumber, and gave a certificate to that effect to the buyers. The learned trial judge, who heard the witnesses, found as a matter of fact that he was agreed upon by the parties as an inspector, while the lumber was being landed at Windsor.
It is not necessary to review the evidence, but in my view it fully justifies the finding of the learned trial judge.
Mr. Justice Maclennan, in his dissenting judgment, has discussed the evidence and in a way which meets with my entire concurrence, and with him I am of opinion that the appeal should be allowed with costs and that the judgment of the trial judge should be restored, the appellants having their costs in all the courts below.
Appeal allowed with costs.