Joseph Knight Boswell, - Appellant; Charles Alexander Kilborn and Ozra Morrill, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 07 February 1862 |
| Date | 07 February 1862 |
| Court | Privy Council |
English Reports Citation: 15 E.R. 511
ON APPEAL FROM THE COURT OF QUEEN'S BENCH OF LOWER CANADA.
Mews' Dig. tit. Colony, II. Particular Colonies, 4. British North America; III. Appeals to Privy Council, 6. Practice, o. Other matters; tit. Sale of Goods, F. 6. a. ii., B. ii. S.C. 8 Jur. (N.S.) 443; 6 L.T. 79; 10 W.R. 517. See Sale of Goods Act, 1893 (56 and 57 Vict., c. 71), s. 18, rules 2 and 5 (1); Young v. Matthews, 1866, L.R. 2 C.P. 127; Anderson, v. Morice, 1874, L.R. 10 C.P. 58; 1 A.C. 713; Seath v. Moore, 1886, 11 A.C. 370; Heilbutt v. Hickson, 1872, L.R. 7 C.P. 449.
[309] ON APPEAL FROM THE COURT OF QUEEN'S BENCH OF LOWER CANADA. JOSEPH KNIGHT BOSWELL,-Appellant; CHARLES ALEXANDER KILBORN and OZRA MORRILL,-Respondents * [Feb. 3, 6, and 7, 1862]. By the English law, if there is a contract for sale by weight or measure, and acts are to be done in order to identify the thing to be delivered before it is in a fit state for delivery; no action for goods bargained and sold can be maintained to recover the price. The only remedy open to the vendor (if the circumstances of the case give him a right to complain of a breach of contract) is by an action for non-acceptance [15 Moo. P.C. 322]. There is no material difference between the old French law prevailing in Lower Canada and the English law in this respect [15 Moo. P.C. 323]. * Present: The Right Hon. Lord Chelmsford, the Right Hon. the Lord Justice Turner, the Right Hon. Sir Edward Ryan, and the Right Hon. Sir John Taylor Coleridge. 511 XV MOORE, 310 BOSWELL V. KILBORN [1862] K. and Co., by an agreement in writing, contracted to sell and deliver to B. five tons weight of hops for the years 1855, 1856, and 1857, the hops to be good and merchantable, and of the growth of each respective year, to be paid for on delivery, at a rate specified; the hops to be delivered free in Quebec. In 1856, K. and Co. sent to B. a quantity of hops, consisting of eighty-two bales, of the growth of 1856, in weight far exceeding five tons. B. inspected the hops, and after a tender by K. and Co. of the bulk, but without any specific tender of the specific quantity of five tons, B. refused to accept any of the hops, when K. and Co. took them away, and deposited them in a storehouse at Quebec. K. and Co. then brought an action against B. for breach of contract in not accepting the hops, and the Court of Queen's Bench of Lower Canada, reversing the decision of the Superior Court, held that K. and Co. had done all that they were bound to do, and that as it was B.'s own fault that the specific five tons were not set apart and distinguished from the bulk, they were entitled to the full contract price of the hops with interest and costs. Such judgment reversed by the Judicial Committee, on the ground that as the five tons of hops had never been separated from the bulk, and there was no complete delivery, K. and Co. could not sue for the price, but only to recover damages for the non-acceptance of the hops. Held, further, that the measure of such damages would be the difference of the contract price and the market price at the time when the contract was broken [15 Moo. P.C. 322]. Although the Judges in Lower Canada under the old French law have power to reject or modify the conclusions in the pleadings, yet even, if the Court is enabled to change the nature of the action, and administer relief entirely different from that which the action sought, such power cannot be exercised with propriety in the case where a Plaintiff, having a choice between two remedies, has exercised his election by the form in which the action is brought [15 Moo. P.C. 326, 327]. In this case the action was brought in the Superior Court of Lower Canada, by the Respondents, who were Hop merchants, against the Appellant, a Brewer, for a breach of contract in not accepting and paying for, [310] in the year 1856, a parcel of five tons of hops, according to the following agreement. "Quebec, 6th March, 1855. Messrs. Kilborn and Morrill sell, and Joseph K. Boswell contracts for delivery with them for the following three years, namely, 1855, 1856, and 1857, five tons weight of hops for every of the said years, the hops to be good and merchantable and of the growth of each respective year, to be paid for at the rate of one shilling Halifax currency, per pound, on delivery. Hops to be delivered free in Quebec. (Signed) Joseph K. Boswell. Kilborn and Morrill. The declaration, after setting out the above contract and the amount due under it for the hops deliverable in 1856, proceeded to'aver, that in November, 1856, the Respondents were ready and willing, and had tendered and offered the hops, namely, five tons weight of good and merchantable hops of the year 1856, in accordance with the contract, and had requested the Defendant to accept and pay for them; [311] but that the Appellant, in violation of his contract, refused to take the hops and to pay for them, whereby the Respondents not only lost the benefit of the sale, but were put to certain expenses in carting away and warehousing the hops, and in other respects; and the Respondents claimed the full contract price of the hops, with interest. The Appellant pleaded, that the hops tendered were unmerchantable and worthless, and by another plea, as " defense au fond en fait," put in issue all the material averments in the declaration. Issues were joined upon these pleadings. The contract was proved, and it was also proved that the Respondents sent to the Appellant's brewery a large quantity, consisting of eighty-two bales of hops, being a quantity far exceeding five tons, and that the Plaintiffs tendered for the Appellant's acceptance five tons of this quantity, and requested the Appellant to accept 512 BOSWELL V. KILBORN [1862] XV MOOBE, 312 and pay for them, offering to take them away if the Appellant did not approve of them, and that the Appellant, having inspected them, refused to take them; that the whole eighty-two bales were then removed by the Respondents, and stored by them in bulk, and that no particular five tons were separated or set apart from the rest, as belonging to the Appellant, although he might at any time, if he had chosen to do so, have taken away any five tons. These facts were not disputed, and no contest arose respecting them. Evidence was also given by the Respondents that the hops tendered were equal to contract, and good and merchantable. The Appellant contended, that the hops were unmerchantable, and, not fit fix brewing, and that, by the contract, which was to be executed at Quebec, the hops ought to have been good and [312] merchantable according to the Quebec standard, and he adduced the evidence of brewers of note in Quebec, who stated that the hops were unmerchantable in Quebec, and not fit for brewing. All the Respondents' witnesses but one came from various parts of the country other than Quebec. It appeared from the evidence that great diversity of opinion prevailed among the witnesses respecting the quality of hops, and that there was a distinction between the standard of hops in different places. The Superior Court (Mr. Justice Chabot presiding) gave judgment on th ; 8th of March, 1858, against the Respondents, and dismissed the action, with costs, upon the ground that, as the declaration did riot contain a proper allegation of tender of...
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