James Connolly, - Appellant; James Maclaren and John Maclaren, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 05 June 1872 |
| Date | 05 June 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 414
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR THE PROVINCE OF QUEBEC, CANADA (APPEAL SIDE).
Mews' Dig. tit. Colony, II. Particular Colonies, 4. British North America.-Sale-Seizure of Subject Afterwards. S.C. L.R. 4 P.C. 262; 21 W.R. 8.
REPORTS OF CASES heard and determined by the Judicial Committee and the Lords of the Privy Council, 1872-73. By edmund F. mooee, Barrister-at-Law. Vol. IX. N.S. ON APPEAL FROM THE COURT OF QUEEN'S BENCH'FOR THE PROVINCE OF QUEBEC, CANADA (APPEAL SIDE). JAMES MACLAREN and JOHN MACLAREN,-Appellants; ARTHUR H. MURPHY and JEREMIAH C. MURPHY,-Respondents. JAMES CONNOLLY,-Appellant; JAMES MACLAREN and JOHN MACLAREN,- Respondents * [June 4, 5, 1872]. Action for damages for non-performance of a contract for the sale of certain Spars and Timber, " to be delivered free of charge to-morrow, or as soon as they can be got out of the hands of the Guardian; but the Purchasers not bound to take them if not delivered in one week unless they like." No delivery having been made within the time specified, by reason of the Guardian in possession of the Spars insisting on retaining them in consequence of a writ of saisie-arret issued in an action instituted against the ostensible Owner of the Spars and Timber, whose mark they bore, having been served on him, notwithstanding that he was released by subsequent proceedings, and might have legally given them up :-Held, that not having done so, the parties contracting for the sale of the Spars and. Timber were relieved from the damages awarded by the Court below for the non-delivery thereof, on the ground that the reasonable construction of the words getting " out of the hands of the Guardian," was the actual, and not constructive or legal title to the possession, which could alone insure the delivery [9 Moo. P.C. (N.S.) 19] : - Held, also, that an action en garantie, founded on the former right of action against the Guardian as garant, by the original Contractors for damages for wrongful detention of the Spars and Timber, could not, under the circumstances, be sustained; and the judgment made in such an action, awarding damages, reversed [9 Moo. P.C. (N.S.) 20, 21]. These appeals were brought from judgments of the Court of Queen's Bench in Lower Canada, reversing [2] the judgments of the Superior Court in favour of the Appellants, and condemning the Appellants in the sum of 4210 piastres, with interest and costs. In the first appeal the action was brought by the Respondents, the Murphys, against the Appellants, the Maclarens, to recover damage's from them for breach of a contract to deliver certain Spars and Timber. The declaration stated, in effect, that the Plaintiffs and Defendants, on the 1st * Present: Sir James William Colvile, Sir Montague Edward Smith, and Sir Robert Porrett Collier. 414 MACLAREN V. MURPHY-CONNOLLY V. MACLAREN [1872] IX MOORE N.S., 3 of July, 1864, entered into an agreement in writing for the sale by the Defendants to the Plaintiffs of certain Spars and Timber, to be delivered the following day, or as soon as they could be relieved from a seizure under mesne process, in virtue of which they had been attached, and were in the hands of a Guardian. That the Defendants subsequently informed the Plaintiffs that the Spars and Timber were released from the seizure. That the Plaintiffs, relying on the Defendants' statement, went to large expense in preparing to remove the Spars and Timber, and made contracts for their resale, from which the Plaintiffs would have derived large [3] profits, but that the Defendants had not delivered to the Plaintiffs the Spars or Timber. The Defendants pleaded the general issue, and an exception peremptoire en droit, alleging that they made every effort to deliver the Spars and Timber, but that the Appellant, Connolly, claimed them as Garnishee, and the Defendants were unable to obtain main-levee, and that this amounted to a force ma-jeure, for which the Defendants were not responsible. The Plaintiffs joined issue on the Defendants' plea. In the meantime the Defendants brought an action en ga/rantie against Connolly, which was the subject of the second appeal. Evidence was taken in both actions at enguete, and the whole was included in the same record, and the appeals were heard together. The facts, of which there was no dispute, were as follows: - In June, 1864, a quantity of Spars and Timber arrived at Quebec which were supposed to belong to one Meech, the Spars being marked with his initials. Meech was in difficulties, and Messrs. Koche and Co., who were Creditors, on the 21st of June issued a Writ of arret simple on mesne process, and seized the Spars and Timber, of which John Rafferty was appointed Guardian in accordance with the Canadian law. Rafferty, on the 23rd of June, placed the Spars in the boom of James Connolly, who gave him a written acknowledgment that he held it to his order as Guardian. The Maclarens, however, intervened in the action against Meech, claiming the Spars as being really theirs, and on the 27th of June, having given security for them, obtained an Order from Mr. Justice Taschereau that they should be delivered [4] to them upon their paying the costs that had been incurred. Some delay took place in the taxation of these costs, and the Spars meanwhile remained in Connolly's boom, and on the 1st of July a second writ of saisie-arret simple was issued at the suit of Messrs. Burstall and Co., who were also Creditors of Meech; and Messrs. Burstall and Co., also, at the same time, issued a Writ of saisie-arret en main tierce against Connolly. In execution of the writ of arret the Bailiff seized the same Spars, and he appointed Connolly Guardian under this seizure, who accepted the appointment, as appeared by his signature to the Inventory made by the Bailiff. At the same time the Bailiff served upon Connolly the Writ of saisie-arret en main tierce. On the same day, the 1st July, 1864, the Maclarens entered into a written contract for the sale of the Spars to Messrs. Murphy in the following terms : - " Quebec, 1st July, 1864. " J. Maclaren and Co. sells and Arthur Murphy and Co. buys- " 478 Red pine Spars, at $35. " 11 White pine Masts, for $520. " And 1 Crib white pine, etc., at 15 cents per foot. '' Terms-J cash. " | 60 days. " | 90 days. " M. J. Wilson, Esquire. " Paper indorsed by A. H. M. and Co. " Spars, etc., to be delivered outside of Mr. Connolly's booms, free of charges, tomorrow, or as soon [5] as they can be got out of the hands of the Guardian, but Purchasers not bound to take them if not delivered in one week unless they like." " (Signed) J. Maclaren and Co. " ( ) Arthur H. Murphy and Co." 415 IX MOORE N.S., 6 MACLAREN V. MURPHY-CONNOLLY V. MACLAREN [1872] It was for breach of this contract that...
To continue reading
Request your trial