Logan and Logan v Le Mesurier and Others
| Jurisdiction | UK Non-devolved |
| Judgment Date | 07 December 1847 |
| Date | 07 December 1847 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 628
ON APPEAL FROM THE PROVINCIAL COURT OF APPEALS FOR THE PROVINCE OF LOWER CANADA.
Mews' Dig. tit. Colony, II. Particular Colonies, 4. British North America; tit. Sale of Goods, C. When Property Passes, 7. Ascertaining quantity of quality. S. C. 11 Jur. 1091. See East India Co. v. Oditchurn Paul, 1849, 7 Moo. P. C. 103; Acraman v. Morrice, 1849, 8 C. B. 449; Boswell v. Kilburn, 1862, 15 Moo. P. C. 309; Seath v. Moore, 1886, 11 A. C. 370; Sale of Goods Act 1893 (56 and 57 Vict., c. 71), s. 18, rule 3.
[116] ON APPEAL FROM THE PROVINCIAL COURT OF APPEALS FOR THE PROVINCE OF LOWER CANADA. JAMES LOGAN and HART LOGAN-Appellants; HENRY LE MESURIER, HAVILAND LE MESURIER, ROUTE, and WILLIAM HENRY TILSTONE,- Respondents * [Dec. 6 and 7, 1847]. Messrs. H. L. and Co., of Montreal, entered into a written contract with Messrs. L. and Co., for the sale of a quantity of red pine timber, then lying above the Rapids, Ottawa River, stated to consist of 1391 pieces, measuring 50,000 feet, more or less, to be deliverable at a certain boom at Quebec, on or before the 15th of June, then next, and to be paid for by the purchasers' promissory notes of ninety days from that date, at the rate of 9-gd. per foot, measured off: if the quantity turned out more than above stated, the surplus was to be paid for by the purchasers at 9Jd. per foot, on delivery; and if it fell short, the difference was to be refunded by the sellers. The price of the 50,000 feet at the agreed rate, was paid by Messrs. L. and Co., according to the terms of the contract. The timber was not delivered on the day prescribed in the contract of sale, and when it arrived at Quebec, and before it was measured and delivered, the raft was broken up by a storm, whereby the greater part of the timber was dispersed and lost. Messrs. L. and Co., after the storm, collected such of the timber as could be saved, paid salvage for it, and applied the timber saved to their own use. In an action brought by Messrs. L. and Co. against Messrs, H. L. and Co., to recover the amount paid on their promissory notes, and for a breach of the contract, and for the difference between the contract price of 9jd. per foot and lOJd. per foot, the market price when the timber was to have been delivered: - Held by the Judicial Committee, affirming the judgment of the Court of Appeals in Lower Canada,- I. That the action was maintainable. II. That, by the terms of the contract, until the measurement and delivery of the timber was made, the sale was not complete; and that the transfer of the property was postponed until the measurement at the delivery; and that the risk remained with the sellers. III. That the taking possession of a part of the timber by Messrs. L. and Co., * Present: Lord Brougham, Lord Langdale, Lord Campbell, the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh. 628 LOGAN V. LE MESURIER [1847] VI MOORE, 117 after the day mentioned for the delivery thereof, in the contract, and not at the place, could not be considered as an acceptance oi the whole; nor could it be considered as an admission, that the property in the timber passed to them before the storm which broke up the raft. The old French law in force in Lower Canada, grounded on the civil law, is in substance the same as the law of England, upon this point [6 i^oo. P.O. 131]. This was an action brought in the Court of King's Bench at Montreal, in which the present Respondents [117] sought to recover the sum of 1979 3s. 4d., which had been paid by them to the Appellants as the price of a raft of red pine timber, sold by the Appellants to the Respondents by a written contract dated 3rd December, 1834, and which raft of timber was wrecked and dispersed at Quebec, on the 20th June, 1835. The Respondents also claimed by the action, damages for the nondelivery of timber. The contract was as follows:---"Hart Logan and Co. of Montreal, sell, and Le Mesurier, Routh, and Co., of the same place, buy, a quantity of red pine timber, the property of Thomas Durrell, of Hull, L.C., but under control of the sellers, now lying above the Rapids, near the Chaudiere Falls, Ottowa River, and stated by the said Thomas Durrell to consist of 1391 pieces, measuring 50,000 feet, more or less, deliverable at Quebec, on or before the 15th of June next, and payable by the purchasers' promissory notes at ninety days' date from this date, at the rate of 9^d. per foot, measured off. Should the quantity turn out more than above stated, the surplus to be paid for by the purchasers at 9|d. per foot, on delivery ; and should it fall short, the difference to be refunded by the sellers. Signed in duplicate ^ontreal, 3rd December, 1834. Hart Logan and Co. Le Mesurier, Routh, and Co. To be delivered at M. B. Farlin's booms, at Sillery Cove, Quebec." [118] On the 5th of December, 1834, the Respondents' promissory notes for the sum of 1979 3s. 4d., at 90 days, were delivered to the Appellants, in terms of the contract. The timber thus purchased was not delivered on the 15th of June, 1835, the day specified in the contract; but late in the day of the 19th of June a raft floated down to Quebec, under the charge of one Ostrom, and arrived at the part of the river nearly opposite to the appointed place for delivery,-viz., Farlin's booms, at Sillery Cove, Quebec, which purported to consist of the timber so purchased. The booms at Sillery Cove being full, the raft was, at the instance of Farlin, removed to a short distance from the spot and properly secured. In the course of the following night, before the raft was or could be received within the booms, it was broken up and dispersed by a violent storm, wherein the greater part of the timber was wholly lost. After the dispersion, the Respondents collected all the timber that they were able to recover, and paid salvage for it, and dressed and shipped on their own account what had been so saved. They also purchased other timber at the rate of lOJd. per foot, the then market price, to fulfil certain contracts they had made upon the presumption that the timber would be delivered to them according to the terms of the contract. The Respondents afterwards brought an action in the District Court of Montreal, to recover back from the Appellants the above sum of 1979 3s. 4d., the amount of the promissory notes, which had been paid at maturity, and also for damages, laid at 400, for the non-delivery of the timber according to the contract. The Appellants resisted this demand, and at the same time, by incidental or cross suit, claimed to recover [119] from the Respondents the residue of the price, amounting, as was alleged, to 197 18s. 4d. The declaration consisted of two counts: the first count set forth the above contract: it then averred payment of the price, according to the contract, by making and delivering promissory notes of the Plaintiffs, and satisfying the same when due; and assigned for breach, that the Defendants had not, on the 15th of June, or at any time since, delivered to the Plaintiffs, at the booms of Farlin, at Sillery Cove, nor elsewhere, the said quantity of timber, or any part thereof, but had therein wholly made default. It was further averred, that on or about the 19th of June, the timber, then being in the possession of the Defendants, was by the force and violence of the winds and waves wrecked, scattered, destroyed, and wholly lost, without any 629 VI MOORE, 120 LOGAN V. LE MESUKIER [1847] default on the part of the Plaintiffs; and that the Plaintiffs were thereby not only deprived of the above sum of 1979 3s. 4d., so paid by them as the price of the timber and of the interest thereon, but had suffered damages to the...
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