Maclaren v Murphy; Connolly v Maclaren
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1865 |
| Date | 1865 |
| Court | Privy Council |
Contract for sale of Timber in possession of Guardian or Garnishee - Construction and effect of.
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-arrêt 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:—
THESE appeals were brought from judgments of the Court of Queen's Bench in Lower Canada, reversing the judgments of the Superior Court in favour of the Appellants, and condemning the Appellants in the sum of 4,210 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 damages from them for breach of a contract to deliver certain Spars and Timber.
The declaration stated, in effect, that the Plaintiffs and the Defendants, on the 1st 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 profits, but that the Defendants had not delivered to the Plaintiffs the Spars or Timber.
The Defendants pleaded the general issue, and an exception péremptoire 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 majeure, for which the Defendants were not responsible.
The Plaintiffs joined issue on the Defendants' plea
In the meantime the Defendants brought an action en garantie against Connolly, which was the subject of the second appeal. Evidence was taken in both actions at enquête, 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. Roche & Co., who were Creditors, on the 21st of June issued a Writ of arrêt 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 June the 23rd, 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 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 saisiearrêt simple was issued at the suit of Messrs. Burstall & Co., who were also Creditors of Meech; and Messrs. Burstall & Co. also, at the same time, issued a Writ of saisie-arrêt en main tierce against Connolly. In execution of the writ of arrêt simple, 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-arrêt en main tierce.
On the same day, the 1st of 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 & Co. sells and Arthur Murphy & Co. buys—
“478 Red pine Spars, at $35.
“11 White pine Masts, for $520.
“And 1 Crib white pine, &c., at 15 cents per foot.
“Terms — ⅓ cash.
“⅓ 60 days.
“⅓ 90 days.
“M. J. Wilson, Esquire.
“Paper indorsed by A. H. M. & Co.
“Spars, &c., to be delivered outside of Mr. Connolly's booms, free of charges, to-morrow, or as soon 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 & Co.
“(Signed) Arthur H. Murphy & Co.”
It was for breach of this contract that the first action was brought.
It did not appear from the evidence whether the contract was made before or after the second seizure, or, if the latter, to which of the two Guardians the contract referred.
On the 2nd of July, the taxation of the costs under the first seizure was completed, and the Spars became deliverable to the Maclarens under the Order of Mr. Justice Taschereau. The Maclarens also, on the same day, procured that one Forsyth should be substituted for Connolly as Guardian under the second seizure, and Forsyth being willing that the Spars should be delivered to the Maclarens first, Connolly gave to them, on the 4th of July, the following acknowledgment:—
“Woodfield Harbour, 4th July, 1864.
“I hold, subject to the order of Messrs. J. Maclaren & Co. Meech's lot of red pine spars placed in my hands by the Sheriff, viz., 478 red pine spars, 11 white pine masts, 16 pieces square white pine, 2 pieces square red pine — 507 pieces.
“(Signed) James Connolly.”
On the same day, July 4th, the Maclarens took this paper to the Murphys, and told them that the Spars were ready for delivery, and at their request indorsed upon the paper the following Delivery Order:—
“Quebec, 4th July, 1864.
“James Connolly, Esquire.
“Please deliver the within-mentioned spars, masts, &c., to the order of Messrs. Arthur H. Murphy & Co., free of charges.
“(Signed) J. Maclaren & Co.”
The Murphys sent a Steamer to take delivery of the Spars, but Connolly declined to deliver them, alleging that he was bound to retain under the Writ of saisie-arrêt en Main tierce. Connolly afterwards stated in his evidence, that his only motive in refusing was to protect himself from any liability that he might incur as tiers saisi if he delivered. Immediately on Connolly's refusal the caused a formal protest to be made to the Maclarens for non-delivery of the Spars, when the latter said that...
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James Connolly, - Appellant; James Maclaren and John Maclaren, - Respondents
...1 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......