Great West Saddlery Co v. Davidson

Per Duff J.-The written contract is explicit, and its terms are not susceptible of modification by evidence of contemporary or antecedent negotiations.

Per Anglin J.-The agreement contained no warranty that the engine would run on kerosene, breach of which would support a claim for damages.

Schofield v. Emerson (57 Can. S.C.R. 203), distinguished.

Per Brodeur J.-By paying their promissory note without protest and; per Brodeur and Mignault JJ. by not returning the engine to the appellant, the respondents waived any right they might have to rescission.

Judgment of the Court of Appeal ([1919] 1 W.W.R. 101), reversed, Idington J. dissenting.

*PRESENT:-Idington, Duff, Anglin, Brodeur and Mignault JJ. for Saskatchewan affirming the judgment of Taylor J. at the trial (2), and maintaining the plaintiff's action, and 'less certain deductions, without costs. The material facts of the case and the questions in issue are fully stated in the above head-note and in the judgments now reported.

J. (dissenting)-I agree so fully with the reasoning upon which the judgments of the learned trial judge and that of Mr. Justice Lamont on behalf of the majority of the Court of Appeal proceed, that I must dissent from the judgment herein allowing entirely this appeal.

I may be permitted to add that the generic term "gas engine" is in the circumstances ambiguous and fails to describe accurately what beyond doubt all concerned had in mind; and regard must be had to the conduct of the parties and collateral inscription on the machine in order to make clear what kind of gas engine was meant.

I have an impression in view of the 'state of the pleading that possibly a new trial limited to the determination of what would have been the proper sum to allow for the engine might well have been directed, but in view of the decided opinions of my colleagues I have not seen any good purpose to be served by fully examining that aspect of the case.

J.-The written contract declares in explicit words that the terms of the agreement between the parties are to be found in the writing and in the writing exclusively.

In face of this provision it is not, in my o opinion, competent for a court of law to resort to contemporary conversations or prior conversations or oneprrprr even to the legend on the article for the purpose of a contract differing in its terms from that expressed in the unambiguous language of the instrument.

J.-After some hesitation I concur in the allowance of this appeal. This case is distinguishable from Schofield v. Emerson Brantingham Implement Co. inasmuch as the evidence here establishes acceptance by the defendants of the engine supplied to them as that which they had agreed to purchase from the plaintiff.

Their letters of the 20th and 26th of October, 1916, afford practically conclusive proof of that fact. Moreover, there is no warranty that the engine contracted for would run on kerosene, such as I thought existed in the Schofield Case (1), in regard to the rated horse power, breach of which would support a claim for damages.

The defendants may have relied on some promises made to them by employees of the plaintiff that the engine would be made satisfactory to them but their contract precludes effect being given to such promises. The provisions of a formal written contract executed without fraud, mistake or surprise, cannot be entirely ignored.

J.-This is an action by the appellant company to recover from the respondents the amount due by virtue of promissory notes which defendants have signed for the price of some agricultural machinery.

In 1915, the defendants, who are farmers and dealers, bought a separator and a 40 horse-power engine with different attachments for the price of $4,410. Those different articles were all delivered by the plaintiff company to the defendants on the 21st May, The defendants then gave a second-hand engine in part payment and made in favour of the plaintiffs three notes amounting to $3,660, falling due on the first of November, 1915, 1916 and 1917 respectively. On the 1st November, 1915, a note became due and it was duly paid without any protest on the part of the purchaser.

In 1916, a few days before the payntent became due, the defendants wrote a letter to the plaintiffs stating that they did not intend to make their payment this year until they were given their commission certificates on their machinery and, namely, on this gas engine and separator which they had received on the 21st May, 1915.

That letter remained unanswered.

The appellant company did not feel disposed to pay any commission or 'to issue these commission certificates and the defendants failed to pay the notes which became due on the 1st November.

An action was then taken by the plaintiffs a short time after, for the payment of the balance of the purchase price of the machinery, viz., $2,928.

The defendants pleaded fraud and misrepresentations, claiming that it had been represented to them that the engine was a kerosene burning engine and that they had not received delivery of the machinery purchased.

They counterclaimed also, repeating the allegation of fraud.

The trial judge found that there was no fraud or misrepresentation but gave the defendant a set-off in damages for $1,885 on the implied condition that the engine was to be a kerosene burning engine. This judgment was confirmed by the Court of Appeal (1), Mr. Justice Newlands dissenting.

seems to me that this defence of the respondents is the result of an afterthought.

The machinery which was sold and delivered was a gas engine.

The gas could be formed either by kerosene or by gasoline; in fact, there were two tanks on which the words kerosene and gasoline were painted. There seems to be no doubt that it did not work properly with kerosene (at least the evidence is conflicting on that point) but it worked very well with the use of gasoline. If the defendants were not satisfied with the machine as it was, why did they not return it in due time? Or why did they not then take proceedings to that effect? But they kept the machine for a year and made during that year enough profit to pay the cost of the whole machine.

They paid their note which became due during that year, without any protest; and then, a year after, they would have paid the notes which then became due if the company had been willing to pay them some commission for which, I suppose, they had a claim more or less legitimate.

They seem to have waived in that way the rights which they might have if the machine did not run properly with kerosene; and in that respect they are too late now to claim what they virtually abandoned. I am then, with deference, obliged to differ from the opinion expressed in the courts below.

The appeal should be allowed with costs of this court and of the courts below.

J.-The appellant claims from the respondents the price of certain farming machinery sold to them, among which was a gas traction engine, and the respondents have refused to pay because this engine, which apparently was designed to work with gasoline and kerosene as a fuel, would not run on Co. kerosene.

The respondents signed an order for the machinery on May 21st, 1915, while the appellant's engine was loaded on the cars, and it was immediately Mignault J. after delivered to them. This order' or contract contains very strict conditions to which the respondents submitted by signing it, among others the following:- 4. Said goods are warranted to be made of good material, and durable with good care, and to be capable of doing more and better work than any other machine made of equal size and proportions, working under the same conditions on the same job, if properly operated by competent persons, with sufficient power, and the printed rules and directions of the manufacturers intelligently followed.

Nothing done by either party shall operate as a waiver of any of the provisions of this agreement unless the same is evidenced by writing signed by the party to be charged with such waiver.

There are no representations, warranties or conditions, expressed or implied, other than those herein contained, nor shall any agreement collateral hereto be binding upon the vendor unless it is in writing hereupon or attached hereto and duly signed on behalf of the vendor at its said home office. The undersigned hereby acknowledge to have received a full, true and correct copy of this order, and that no promises, representations or agreements have been made to or with me not herein contained. J.

J. The learned trial judge, who decided in favour of the respondents, and whose judgment was affirmed by the Court of Appeal of Saskatchewan, Mr. Justice Newlands dissenting, has found that there was no misrepresentation on the part of the appellants, but that the respondents had previously purchased from the latter a gas engine which, when delivered, admit- J. tedly proved unsatisfactory in that it would not pull the learned trial judge finds, agreed to take back this engine and credit the respondents with $750.00 on the purchase of another gas engine, the one in question, which, it was distinctly understood between the parties, was to be a kerosene burning engine. A casual examination of the engine, he adds, would lead to the belief that it was of a type specially designed to operate with kerosene, for it had two tanks, the larger one labelled "kerosene,"

and the smaller one for gasoline which was to be used only for starting the engine. He also finds that the appellant's agent Given had previously represented to and assured the respondents that the engine would operate on kerosene, and that he had seen engines of this type operating on kerosene, using gallons of kerosene to plow an acre of land. When it was attempted to run the engine on kerosene, it stopped, and the appellant, the learned trial judge finds, promised the respondents to send experts to make it work on kerosene, and did so, but to no avail.

Under these circumstances the learned trial judge held that the action of the respondents in relying on the undertaking of the appellant to make the engine work on kerosene, was entirely reasonable.

He adds that he is satisfied that the respondents agreed to purchase one kind of engine, that that kind was never delivered to them, and that the engine actually delivered was worth at least $1,885.00 less than the engine they should have received.

And in answer to the contention of the appellant that this engine answers the description in the order "one case 40 Horse Power Case Gas Engine," he finds that this description is ambiguous, applicable to any type of gas engine, warranting the admission of evidence to shew which type of engine was intended.

The whole question is whether on these findings of fact, the appellant is entitled to recover from the respondents.

The position of the latter is weakened not only by the terms of their contract, but also by the letters which they wrote to the appellant, which, up to that of the 11th November, 1916, do not mention the grievance that the engine would not run on kerosene, but merely complain that certain commission certificates which they claimed from the appellant had not been sent to them.

The learned trial judge has found that there were no misrepresentations on the part of the appellant and therefore the contract stands.

It is no doubt a very rigorous one, but persons who sign such a contract cannot expect a court of law to relieve them from its obligations because its terms seem harsh.

The respondents strenuously argued that the engine they contracted for was not delivered to them. If this means that the appellant did not deliver the engine mentioned in the order, the contrary is proved and even admitted by the respondents.

If it means that the engine delivered was defective and did not come within the description and warranties of the contract, the respondents have not returned the engine as required by paragraph 8 of their contract. Although the respondents allege in their plea that the engine was returned to the appellant, o.

such is not the fact, and the respondents in their factum admit that they are liable to pay what the engine is worth. The appellant did not specifically deny this averment of the respondents (see Rule 153 of the Saskatchewan Rules of Court), but when the objection founded on paragraph 8 of the contract was argued before this court, the respondents did not suggest that the engine was returned, and they could not do so in view of the evidence and the judgment of the trial court which shew that the engine was never returned, but has been dealt with by the learned trial judge as having been sufficiently paid for. Under these circumstances, Rule 153 does not relieve me from my duty to deal with this case according to the state of facts which appear by the record.

APPELLANTS; Mar. (DEFENDANTS)....................

May 6. AND

WILMA

PEARL

HERDMAN,

ADMINISTRATRIX

OF

-RESPONDENT. ESTATE OF WILLIAM WALKER

HERDMAN (PLAINTIFF)..........

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Negligence-Railway Company-Trespasser-Licencee-Penalty for trespass-Nova Scotia Railway Act (R.S.N.S. [19001 c. 99, s. 264). By see. 264 of the "Nova Scotia Railway Act" (R.S.N.S., [19001 ch. 99), every person not connected with the railway who walks upon a railway track is liable to a penalty.

H. was killed while walking along a track on a stormy night in winter and on the trial of an action by his widow the jury found the railway company negligent in not having lights and having a defective whistle and that the public had, to the knowledge of the company, habitually travelled on the track at the place in question. They refused to find that running the engine without lights and without sounding the whistle at this place was a reckless disregard of human life but considered it careless.

, that H. was a trespasser on the right of way; that the only duty owed him by the company was not to run him down knowingly and recklessly which was not done and the jury so found; and that the company was, therefore, not liable.

.

Deceased was a licencee being on the track by permission and consent of the company which owed him the duty of not increasing the ordinary and normal risks which he would incur as such licencee and the negligence of the company added to those risks made it liable. APPEAL from a decision of the Supreme Court of Nova Scotia (1), affirming the verdict at the trial in favour of the plaintiff.

*PRESENT.-Sir Louis Davies C.J. and Idington; Anglin, Brodeur and Mignault JJ.

The facts are sufficiently stated in the above headnoe note.

Jenks K.C. and A.

Deceased was a trespasser and the company owed him no duty but that of' not wilfully injuring him: Grand Trunk Railway Co. v. Barnett, Frequent user of the track by the public does not necessarily imply licence to use it: Grand Trunk Railway Co. v. Anderson

The action is one brought under the " Fatal Injuries Act" of Nova Scotia by the administratrix of the estate of the late Dr. Herdman for the benefit of herself as widow of the deceased and his infant daughter Helen, for damages caused by the negligence of the defendant company and its employees in the operation of one of its trains over the company's railway between River Hebert and Strathcona, two villages along the line of railway about three-quarters of a mile apart, on the 10th of February, 1917, whereby the said Dr. Herdman was killed.

The evidence shewed that the public generally in that neighbourhood had, for a period of from twenty to twenty-five years before the accident, habitually walked along the railway track between the said two villages and that this use of the railway by the public was well known to the defendant company's officials and employees.

The company never took any steps to interfere with such public user of the road and no prosecution was ever brought against any one for such user under the provisions of the Nova Scotia Railway Act" which, in its 264th section, provided as follows:- This provision of the Act was virtually a dead letter so far as this section of this railway was concerned.

The undisputed facts as I gather them were that the deceased was killed on the evening of the 10th day of February, 1917.

An engine and tender had left Joggins Mines during the afternoon helping a heavily loaded train out beyond Strathcona. engine and tender took a side track to permit the loaded train to go by and then backed to Joggins Mines. The whistle was out of order on the return trip and could not be used.

Darkness had set in. There were no lights on either the engine or tender.

Snow was falling fast and the wind. was high and blowing in the direction from Joggins Mines to Strathcona. fireman gave evidence that the frost on the window prevented him seeing; that he didn't see anything; that he could not see out. The driver gave evidence that he could not see and again that he could not see much, sometimes he could see the tender and sometimes he could not. The snow was resting on the ground unevenly so that in some places the rails were covered and in other places they were bare.

It was on this return trip from Strathcona back to Joggins Mines that the deceased was overtaken by the defendant's engine and tender, and killed.

The accident occurred between Strathcona and River Hebert.

The deceased was a physician residing in the village of River Hebert. On the afternoon in question he had gone out to Strathcona on the loaded train before referred to, to make a professional call, and after making this call he was seen to return to the railroad and start towards River Hebert.

He was not seen again alive.

The plaintiff contends that she is entitled to recover because of the habitual and unchecked use by the public of the railroad to the knowledge of the company's servants and employees, and of the facts that the engine which ran down the deceased was not at the time of the accident equipped with either a whistle or with lights, and was running backwards, making it difficult, if not impossible, for the men in the engine cab to observe a man on the track owing to the obstruction caused by the tender and that owing to its defective whistle it had not given the usual signal at the railway crossing a short distance from the place of the accident to warn persons on the track.

In my opinion, the evidence in the case amply warranted the several findings of the jury.

The chief defence relied upon by the company was that the deceased in walking on the track as and when he did was, under the section of the statute quoted above, a trespasser to whom they did not owe any duty beyond that of not wilfully injuring him.

Apart altogether from the statute I do not entertain any doubt whatever of the liability of the company. The findings of the jury supported, in my opinion, by ample evidence substantially were that the absence of lights and the defective whistle were the proximate cause of the accident which the deceased,. though careless, could not have avoided; that the public habitually travelled along the defendant's railway at the place in question, of which fact the company had notice but never interfered to stop or prevent; that the deceased had no reason to believe an engine would overtake him without blowing a whistle at Pugsley's crossing, and without carrying lights, and that the absence of the whistle and the lights prevented deceased from knowing the engine was coming along; that such an engine without lights and not sounding a whistle at Pugsley's crossing was more likely to kill a foot passenger at the point where the deceased was killed than an engine with lights which sounded a whistle at Pugsley's crossing, and that the running of such an engine under the circumstances was a careless but not a reckless disregard of human life.

Under these findings upon which I think the case must be determined it seems to me clear that the deceased was not a mere trespasser on the track, but that he was, at the time he was killed, there by the tacit permission and consent of the company and at the lowest was a bare licencee to whom, however, they owed a duty not, indeed, of the same character as that which they owed to a passenger on their train but still a duty clear and defined, namely, not to increase the normal'or ordinary risks which the licensee would incur when exercising the permission or licence granted to.him. In the case of Gallagher v. Humphrey Cockburn C.J. in delivering the judgment of a very strong court, stated the law to be as follows:

does not turn upon the question whether permission was or was not given to the plaintiff to pass along the way.

But I should be sorry to decide this case upon that narrow ground.

I quite agree that a person who merely gives permission to pass and repass along his close not bound to do niore than allow the enjoyment of such permissive right under the circumstances in which the way exists; that he is not bound, Co.

for instance, if the way passes along the side a dangerous ditch along the edge of a precipice to fence off the ditch or precipice. grantee must use the permission as the thing exists.

It a different The Chief question, however, where negligence on the part the person granting Justice.

the permission is superadded.

It cannot be that, having granted permission to use a way subject to existing dangers, he is to be allowed to do any further act to endanger the safety the person using the way.

The plaintiff took the permission to use the way subject to a certain amount risk and danger, but the case assumes a different aspect when the negligence of the defendant-for the negligence his servants is his-is added to that risk and danger.

I have not found any case where this statement of the law is either challenged or impugned.

In a later case of Thatcher v. The Great Western Rly. Co. (1), Lord Esher M.R. said that if a person was on the premises of another with that other's consent, the latter had a duty to take reasonable care not to act in such a way as to cause personal injury to the former.

It was the business a railway company to carry as passengers persons who came to their stations for the purpose of travelling to various destinations. It was a matter of every day occurrence that, when persons intending to passengers came to railway stations, their friends came with them to see them off. The company knew that it was the practice passengers' friends so to come to their stations, and they permitted them to come. They knew that whenever two persons came to the station it might well be that one them was not intending to travel, but merely came to see the other off.

What duty had the railway company to those persons? No doubt in strict logic they had not the same amount duty to them as they had to persons who paid them money in consideration being carried as passengers.

But, so far as regarded the taking means providing for personal safety, it was impossible to measure the difference between their duty to the one class persons and their duty to the other. In short, it was their duty to take reasonable care with regard to both.

The defendants, therefore, owed the plaintiff the duty to take reasonable care not to do anything to endanger his personal safety. Such duty had been recognized in Holmes v. North-Eastern Railway Co. (2), and Watkins v. Great Western Railway Co. (3).

L.R. 4 Ex. 254. 46 L.J.Q.B. 817.