*370]

*ST. LOSKY and Others v. GREEN and Another.
Nov. 7.

Where an amendment at the trial merely consists in the correction of a blunder in the statement of the contract, and does not vary the real question the parties came to try, the judge is warranted in allowing it without imposing any condition.

A count stated that the defendants contracted to sell to the plaintiffs a cargo of "Merthyr coal of the description called through and through, to be hand-picked." This description being proved at the trial to be inconsistent and unintelligible, and the real contest being whether or not the contract was for "hand-picked coal," the judge amended by striking out the words in italics, the costs of the amendment being defendants' costs in the cause. The jury having found for the plaintiffs,-Held, that the amendment was properly made.

THIS was an action for the breach of a contract for the supply of a cargo of coals.

The first count of the declaration stated, that, by an agreement made between the plaintiffs and the defendants, the defendants agreed to sell to the plaintiffs, and the plaintiffs agreed to buy of the defendants, certain goods upon certain terms then agreed upon between the plaintiffs and the defendants, to wit, 1000 tons of Thomas's Merthyr coal of the description called through and through, to be hand-picked, at a certain. price, to wit, 88. 9d. per ton, delivered free on board the ship Sarah Park at Cardiff: General averment of performance by the plaintiffs: Breach, that the defendants did not nor would deliver to the plaintiffs on board the said ship, in manner provided for by the said agreement, coal of the quality, condition, and description in the said agreement mentioned, but on the contrary thereof, delivered on board the said ship coal of a much inferior quality, condition, and description, &c.

There was a second count upon a similar contract for a cargo of "Carr's Merthyr steam coal;" but this was abandoned at the trial.

The defendants pleaded, first, that they did not agree as alleged: secondly, to the first count, that, after the making of the contract in that count alleged, it was mutually agreed by and between the plaintiffs and the defendants that a different description of coal, to wit, "Carr's Merthyr steam coal," should be substituted for the coal in the first count mentioned, and that such *substituted contract was duly performed by the defendants. Issue thereon.

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At the trial before Erle, C. J., at the sittings in London after last Trinity Term, the plaintiff St. Losky stated that Mr. Compton, one of the defendants, called upon him and contracted to sell him 1000 tons of Thomas's Merthyr coal, through and through, at 8s. 6d. per ton, to be delivered free on board the ship Sarah Park at Cardiff, for San Francisco: but that Compton shortly afterwards called on him again, and told him he could not supply Thomas's Merthyr coal, and thereupon it was agreed that Carr's Merthyr coal should be supplied instead, at 88. 9d. per ton, to be hand-picked; that, in the bill of lading under which the coals were shipped, they were described simply as "Carr's Merthyr coal;" and that he remonstrated with the defendants, but the ship had already sailed.

A clerk of the plaintiffs, who was called, substantially confirmed the statement made by St. Losky.

It was proved that "through and through" meant at Cardiff screened

coal small and large; and that "hand-picked" meant the larger coals. picked out by hand after they had been screened.

Several witnesses were examined upon interrogatories and crossinterrogatories at San Francisco for the purpose of proving the state of the cargo upon its arrival there, viz., that it contained a very large proportion of dust, and also to prove the prices realized on the sale of the coal. Their answers thereto were put in and read. From these, it appeared that the cargo was found to contain about 140 tons of small coal and dust, which produced almost nothing, and that the remainder of the cargo sold at the rate of 12 dollars per ton.

At the close of the plaintiffs' case, it was submitted on the part of the defendants, that the evidence failed *to establish the contract [*372 stated in the first count, viz. a contract for "1000 tons of Thomas's Merthyr coal of the description called through and through, to be hand-picked," the evidence showing that the original contract was for Thomas's Merthyr coal through and through, and that the substituted contract was for Carr's Merthyr coal, to be hand-picked. They also proved that the average quantity of dust in good coal was about 18 per cent.

The plaintiffs' counsel thereupon prayed leave to amend by making the allegation accord with the proof. It was objected on the part of the defendants, that this would be substituting an entirely new contract; and he insisted, that, at all events, the defendants were entitled to costs as upon a nonsuit. The Lord Chief Justice, however, was of opinion that the real contest between the parties was whether the contract was for a cargo of Merthyr coal hand-picked and whether the coal shipped answered that description; and he proposed to amend the declaration accordingly, reserving the question of costs. The plaintiffs' counsel, however, standing upon what he conceived to be his rights, declined to consent to this; whereupon his Lordship ordered the amendment to be made, the costs of the amendment to be defendants' costs in the cause. Witnesses were then called for the defendants, who stated that the substituted agreement was for a cargo of Carr's Merthyr coal, that that description of coal was shipped, and that there was no agreement that it should be hand-picked.

The jury returned a verdict for the plaintiff for 1027. 18. 8d., being the difference between the price realized by the 140 tons of small coal and dust and the price it would have fetched if it had all been handpicked, according to the contract.

Montague Chambers, Q. C., now moved for a new *trial, on the ground that the evidence did not show any damage sustained [*373 by the plaintiffs, and also on the ground that the amendment was improperly allowed, or, at all events, should only have been allowed on the terms of the plaintiffs' paying costs as upon a nonsuit, inasmuch as the amendment presented an entirely new issue. [ERLE, C. J.-I thought, as the evidence showed that the contract as stated in the first count was inconsistent, the real contest between the parties was whether the coal was to be hand-picked or not. I therefore amended according to what I conceived to be the substance of the matter. I did not know how the amendment would affect the costs. I therefore proposed to reserve the question of costs. This course not being assented to by the defendants' counsel, I determined to make the amendment, and directed that the costs of the amendment should be defendants' costs in the cause. BYLES,

J.-What are costs of amendment? Would they include the costs of the commission?] The master would determine that. Then, notwithstanding the amendment, there was no evidence to warrant the finding of the jury. Nor did it appear that the plaintiffs had sustained any damage.

WILLIAMS, J.-I am of opinion that there should be no rule. It appears that in the course of the trial it became evident that the real contest between the parties was,-first, whether the contract was for "hand-picked" coal,-secondly, whether, assuming that the contract. was for "hand-picked" coal, it has been performed by the delivery on board the Sarah Park of coal of that description. Not only was it apparent that this was the controversy, but it was clear that the pleadings did not fit that controversy; the declaration containing a description of the subject-matter of the contract which upon the evidence was inconsistent and *contradictory in its terms, and evidently framed *374] in mistake. It was, therefore, clearly the duty of the judge to amend the pleadings so as to make them suitable to the question in contest between the parties. That being so, the only point remaining, is, whether the amendment ought to have been made upon the terms of the plaintiffs' paying costs. I think not. The defendants must, upon the finding of the jury, be taken to have contracted to ship a cargo of "hand-picked" coal, and to have failed in the performance of that contract. They knew what was the real matter in dispute; and, being aware that the plaintiffs had made a blunder in describing the contract in their declaration, they sought to take advantage of that blunder to defeat their claim. Under those circumstances, I think the plaintiffs were not entitled to any costs of amendment. Buckland v. Johnson, 15 C. B. 145 (E. C. L. R. vol. 80), was decided by this court upon the principle which ought to govern this case. There, to a count for money had and received, the defendant pleaded, that the "said debt for money received became due from, and was contracted by, the defendant jointly with A., and not by the defendant alone, nor by the two jointly and severally, but only jointly;" that, after the accruing of the causes of action in the count mentioned, the plaintiff sued A. for money had and received and in trover, and recovered a judgment against him for 1007. and costs; and that the causes of action in respect of which the plaintiff so recovered that judgment against A. included all the causes of action to which that plea was pleaded. It appeared in evidence, that the defendant and A. had wrongfully converted the goods of the plaintiff, by selling them; that the proceeds of the sale (1507.) were received by the defendant alone; and that the plaintiff had sued A., and recovered a verdict for 100l., as the value of the goods so converted; but that, in consequence of *A.'s insolvency, he had obtained no satisfaction. *375] Upon its being objected at the trial of the action, that the facts did not sustain the plea, the judge allowed the defendant to amend by substituting for the words above in inverted commas, the following, "the said money was money received for and as being the proceeds of the sale of the goods in the last count and hereinafter mentioned." It was held that the amendment was properly allowed, though the judge imposed no terms on the defendant. That, I think, is the true principle. The utmost the defendants could look for in this case, was, that the costs of the amendment should be their costs of the cause. That is

what the Lord Chief Justice intended to decide; and the defendants having failed, it comes to the same thing. I therefore think there is no ground for finding fault with what was done at that stage of the proceedings. As to the rest, we understand from my Lord that he sees no reason to be dissatisfied with the conclusion the jury came to, or to suppose that any injustice has been done. The application therefore must fail.

BYLES, J.-I am of the same opinion. Not only do I think that my Lord did right in making the amendment, but that he was bound to make it. Originally, as well as after the amendment was made, the main question was, whether the coal which was the subject of the contract was to be hand-picked. That was the matter in controversy between the parties. That being so, the language of the 222d section of the Common Law Procedure, 1852 (15 & 16 Vict. c. 76), as it seems to me, left the learned judge no discretion. The statute enacts that "it shall be lawful for the superior courts of common law, and every judge thereof, and any judge sitting at nisi prius, at all times to amend all defects and errors in any proceeding in civil cases, *whether there is anything in writing to amend by or not, and whether the de[*376 fect or error be that of the party applying to amend, or not; and all such amendments may be made with or without costs, and upon such terms as to the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made." Various statutes have from time to time for more than 500 years been passed, from the 14 E. 3, c. 6, downwards, to facilitate amendments, but the strict and almost perverse construction which the judges put upon them rendered them nearly abortive. But now a totally different principle prevails. Every amendment is to be made which is necessary for determining the real question in controversy between the parties. If the real question in controversy was not touched by the amendment, I think it might properly be made without costs. The Lord Chief Justice intended that the costs of the amendment should be defendants' costs in the cause. In the result that came to the same thing. As to the damages, I collect that the jury gave the plaintiffs by way of damages the difference between the price for which the 140 tons of small coal and dust would have fetched if it had been in accordance with the contract, and the price for which it actually sold. I see no reason to find fault with that.

KEATING, J.-I also think the amendment in question was properly made, and the terms proposed just. As to the rest, I see no reason for complaint.

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ERLE, C. J.-As to the amount of the damages, I cannot say that I was dissatisfied with the conclusion that the jury came to. I do not call to mind what the *contest was; but I find from Mr. Lush's summing-up, which I have before me, that he did not claim for the plaintiffs damages upon any principle which the law did not warrant. He claimed the precise amount which the jury, and as I think rightly, awarded to the plaintiffs. Rule refused.

C. B. N. S., VOL. IX.-15

TODD v. FLIGHT. Nov. 20.

An action lies against the owner of premises who lets them to a tenant in a ruinous and dangerous condition, and who causes or permits them so to remain until by reason of the want of reparation they fall upon and injure the house of an adjoining owner.

THE first count of the declaration stated, that, before and at the time of the committing of the grievances thereinafter mentioned, a certain chapel and building situate, &c., were in the possession of certain persons, to wit, Francis Cuthbertson, John Henry Adams, and Walter Arthur King, as tenants thereof to the plaintiff, the reversion of and in the same then and still belonging to the plaintiff; that, before the happening of the injuries to the said chapel and building and to the plaintiff as thereinafter next mentioned, the defendant was owner and possessed of a certain building, and a stack of chimneys, parcel of the same, near to the said chapel and building of the plaintiff; that the said chimneys then and from thence continually until and at the time of the happening of those injuries, were in a dilapidated, decayed, ruinous, insecure, and improper state, and in danger of falling, and likely to fall upon and do damage and injury to the said chapel and building of the plaintiff; and that the defendant, well knowing the premises, demised and let his said building, with the said chimneys in the said state, to another person, to wit, one Benjamin Batt, and wrongfully suffered and *378] permitted the said chimneys to be and continue, and kept and maintained, and continued kept and maintained the same in the said state until the same afterwards fell and came upon and against and through the roof and other parts of the said chapel and building of the plaintiff, and greatly broke, damaged, injured, and destroyed the same; and by means of the premises the plaintiff had been and was injured in his reversionary estate and interest of and in the said chapel and building.

Demurrer and joinder.

Honyman, in support of the demurrer.-The injury complained of in this declaration occurred whilst the premises adjoining were in the occupation of a tenant; there is, therefore, no ground on principle or upon authority to charge the present defendant. In Cheetham v. Hampson, 4 T. R. 318, it was held that an action on the case for not repairing fences, whereby another party is damnified, can only be maintained against the occupier, and not against the owner of the fee, who is not in possession. Lord Kenyon there says: "It is clear that this action cannot be supported against the owner of the inheritance, when it is in the possession of another person. It is so notoriously the duty of the actual occupier to repair the fences, and so little the duty of the landlord, that, without any agreement to that effect, the landlord may maintain an action against his tenant for not so doing, upon the ground of the injury done to the inheritance; and deplorable indeed would be the situation of landlords, if they were liable to be harassed with actions for the culpable neglect of their tenants." And Buller, J., said: "With respect to the case of Rosewell v. Prior, 2 Salk. 460, 1 Lord Raym. 713, 12 Mod. 635,(a) which is the only one cited of an action of a similar nature maintained against the owner out of possession, it is very

(a) See the pleadings, Lill. Ent. 82.