the refiners' warehouses beyond the two months, although they are more generally removed within that period.

18. An impression prevails extensively in the trade, both amongst refiners and their customers (in which impression, however, the plaintiffs do not share), that the sugars, whilst in the warehouse, remain at the refiners' risk, even after the expiration of the two months mentioned in the sold note, until they have been actually weighed and an invoice sent to the purchaser, and until a notice has also been sent to the purchaser, that the sugars are thenceforth at his risk. It was contended, and some evidence given before the arbitrator, on the part of the defendant, that there was a general custom or usage in the trade to this effect, but the arbitrator does not find that any such custom or usage has ever existed.

19. The plaintiffs and the defendant have dealt together for many years in the manner above described, and the defendant has frequently, at the plaintiffs' instance, purchased large quantities of sugar, which both parties had reason to believe would not be cleared altogether from the warehouse within the two months, and considerable portions of which have, in fact, remained in the warehouse beyond that period.

20. On the 15th of January, 1870, the plaintiffs sold, or contracted to sell, to the defendant 1,090 titlers, comprised in the four fillings, then manufactured and lying stored (each filling apart) and marked in their warehouse. The following is a copy of the sold note

At the time of the sale there were no other titlers lying stored in the plaintiffs' warehouse bearing the same numbers and marks. The numbers in the second column indicate the number of titlers in the filling; the word "tits.," which then follows, is the abbreviation for titlers; and then follows the price in shillings, which is known to be per cwt.

21. Entries of these sales, to the effect mentioned in paragraph 9, were immediately made by the plaintiffs in their warehouse-book, sale-book, and day-book. Before the fire hereinafter mentioned the plaintiffs drew upon the defendant for an approximate sum to the price of the said four fillings, and the defendant duly accepted and paid the bills before the fire. After the fire, the defendant, disputing his liability to bear the loss incurred in respect of the titlers which remained undelivered and were burnt, the plaintiffs consented that the payment by bill, in so far as it applied to the titlers in dispute, should be appropriated to other items of account between the plaintiffs and the defendant, without prejudice, nevertheless, to any rights which such payment might have conferred upon the plaintiffs, or to their claims against the defendant for the titlers so burnt.

22. Between the 15th of January and the 15th of March, 1870, the defendant resold portions of the titlers, and gave to various sub-purchasers orders upon the plaintiffs for the delivery of the said portions, of one of which the following is a copy

was made out and delivered by the plaintiffs to the defendant.

24. The plaintiffs sold further fillings of titlers to the defendant on the 20th of January, the 16th of February and the 22nd of February, 1870, in respect of which sales a similar course of dealing and delivery took place to that which has been described with respect to the sale of the 15th of January, and were delivered by the plaintiffs to the defendant on the occasion of such further sales.

25. On the Monday next after the 15th of March, 1870, the plaintiffs delivered to the defendant a notice of which the following is a copy

"To Mr. W. Kitching.

"Please remove the following sugars now lying here at your risk—

"40 Tits., bought January 15th.

43 44

"D. Martineau & Sons. "March 21st, 1870."

26. After this notice had been given, and before the fire hereinafter-mentioned, further deliveries were made to other persons, who had purchased from the defendant portions of the goods comprised in the said sale notes under similar circumstances to those mentioned in the 21st and 22nd paragraphs.

27. At the time of the fire hereinaftermentioned, 967 of the titlers comprised in the said sale notes of the 15th and 20th of January and the 16th and 22nd of February remained in the plaintiffs' warehouses, and had not been weighed. The plaintiffs, however, were enabled to form an approximate estimate of their weight and value from their knowledge of the qualitity of the goods, and the weight of other titlers which had been made about the same time. The total number of titlers in the plaintiffs' warehouses at the time of the fire was 12,121.

28. The number of titlers included in the overdue notice delivered to the defendant on the Monday next after the 15th March, 1870, and remaining upon the plaintiffs' premises undelivered at the time of the fire hereinafter-mentioned and burnt, was 375, and their value was 2701. No overdue notice was proved to have

been delivered by the plaintiffs to the defendant relating to the titlers included in the sale note of the 16th of February, 1870, although the Monday upon which, in accordance with the ordinary practice of the plaintiffs, such notice should have been delivered, was the 18th of April. The number of these titlers undelivered at the time of the fire and burnt was 239, and their value was 2031. 2s. No overdue notice was delivered by the plaintiffs to the defendant relating to the titlers inIcluded in the sale note of the 22nd of February, 1870, but with respect to these the Monday upon which, in accordance with the said practice of the plaintiffs, notice should have been delivered, was the 25th of April, and had not arrived at the time of the fire. The number of titlers included in the last mentioned sale note remaining upon the plaintiffs' premises undelivered at the time of the fire and burnt, was 323, and their value was 2701.

29. On Sunday the 24th of April a fire broke out on the plaintiffs' premises, by which stock in trade of the estimated value of 35,1177. 6s. 7d. was destroyed or damaged, and amongst such stock were 932 out of the said 967 titlers comprised in the said sale notes and remaining as aforesaid undelivered. The price of these 932 titlers the arbitrator finds to be 7431. 2s.

30. At the time of this fire the stock and goods upon the plaintiffs' premises were insured by such policies as have been before described in the Phoenix and other offices in the total sum of 30,2001.

31. The claim made by the plaintiffs upon these offices for loss and damage on stock and goods amounted to 35,1177. 78. 6d., which claim included all stock and goods upon the premises at the time of the fire, manufactured and unmanufactured, and sugars sold or contracted to be sold by the plaintiffs, but not delivered. These last mentioned sugars comprised the said 932 titlers mentioned in the said notes, and eighty-two titlers sold or contracted to be sold to two other persons, which had remained on the plaintiffs' premises for more than two months from the date of the contract of sale. These 932 and eighty-two titlers respectively were

the only stored goods on the premises which had been sold or contracted to be sold and were lying overdue, and in sending in their said claim to the offices the plaintiffs made no distinction between these last mentioned goods and other stock in trade upon the premises.

32. The whole amount insured, that is to say, the said 30,2001., less only a sum of 3221. 58., which was deducted in respect of the over insurance of a particular stove, leaving the sum of 29,8771. 15s., was allowed and paid to the plaintiffs by the insurance offices; and in addition to such sum the plaintiffs were allowed to obtain salvage of the said stock to the value of 2,7337. 10s., leaving therefore a loss sustained upon the stock and goods on the premises, and not covered by the policies, to the amount of 2,5061. 2s. 6d.

33. The value of the total salvage from the fire amounted to the sum of 3,8351. 10s., of which 1,1021. was sold to the plaintiffs by the insurance offices, and the remaining 2,7331. 10s. was retained by the plaintiffs as in the preceding paragraph mentioned.

34. The proportion of the said sum of 2,7331. 108. applicable to the said 932 titlers has been fixed by consent of the parties at 1501., and it is agreed that this sum is to be allowed by way of set-off in the reduction of the plaintiffs' claim in the event of the Court deciding that the plaintiffs are entitled to recover the price of the undelivered titlers.

35. The remaining thirty-five out of the 967 titlers were saved uninjured from the fire, and were afterwards sold by the plaintiffs without consulting the defendant upon the subject, and it does not appear that the defendant objected to this sale, or ever made any claim to the said thirty-five titlers.

39. The plaintiffs contend that they are entitled to recover in this action the sum of 7431. 28., being the price of the undelivered titlers, after deducting from that sum the 150l. which they are willing to allow as the proportion of salvage due to the defendant, and the plaintiffs further contend that they are not bound under any circumstances to make any allowance to the defendant in respect of the said insurance moneys.

40. The defendant contends, in the first place, that the plaintiffs are not entitled to recover any sum in respect of the undelivered titlers, and in the next place, if they are so entitled, that the defendant should be allowed by way of setoff or otherwise as against the sum claimed by the plaintiffs, such a proportion of the insurance money received by the plaintiffs as would be applicable to the 932 titlers (or, in other words), that the defendant is entitled to the benefit of the insurance moneys received by the plaintiffs in the proportion which the value of the 932 titlers bears to the total value of the goods destroyed.

41. If the Court should be of opinion that the defendant is entitled to the benefit of the said insurance moneys, it is agreed that the proportion of the said moneys applicable to the 471 titlers in warehouse A is 2731., and that the proportion of the said moneys applicable to the said 461 titlers in warehouse B is 2677., making altogether 5401.

42. The Court is to have power to draw inferences of fact, and to make any amendments in the pleadings which they may think necessary or proper.

43. The questions for the opinion of Court are, first, Whether the plaintiffs are entitled to recover the price of the undelivered titlers; and, secondly, If so, whether the defendant is entitled, by way of set-off or otherwise, to any, and if so, what allowance in respect of the insurance moneys.

April 30.-Holker (Greenhow with him), for the plaintiffs, contended, first, that the property in the undelivered titlers had passed to the defendant so as to transfer the risk by fire to him. The only ground which can be urged by the defendant on this subject is that this portion of the sugar had not been weighed. But although the fact that goods have not been weighed as between vendor and purchaser is relied upon in the earlier cases, such as Simmons v. Swift (1) and others, yet it must now, since the case of Furley v. Bates (2) be

taken to be settled that the intention of the parties is the proper test as to whether the property in goods sold has passed or not. In the present case the words of the sale note," Stoved goods at seller's risk after two months,' ," are conclusive evidence of an intention to transfer the property-Benjamin on the Contract of Sale, p. 221; Kershaw v. Ogden (3); Young v. Matthews (4). Secondly, the defendant is not entitled to any proportion of the amount insured by the plaintiffs. The plaintiffs have not received enough to cover their own loss, and as they effected the insurance without any agreement with the defendant, they have a right to appropriate the amount without regard to his claim-The North British Insurance Company v. Moffatt (5), Waters v. The Monarch Insurance Company (6), The London and North Western Railway Company v. Glyn (7).

J. Brown, Thesiger with him (on May 3), for the defendant, contended, first, that the property in the titlers had not passed, as they were never weighed, and it became impossible to ascertain the price; secondly, that the defendant was entitled to a proportionate part of the amount insured. It was not necessary to prove that there was a contract between the parties that the plaintiffs should insure the sugar, it was quite sufficient that the plaintiffs did insure, and that the insurance was known to the buyer. The plaintiffs and the defendant must be taken to have dealt on the understanding that the plaintiffs would insure. He cited Hanson v. Meyer (8), Logan v. Le Mesurier (9), Gilmour v. Supple (10).

Holker was not heard in reply.

COCKBURN, C.J.-This is an action brought to recover the price of a certain quantity of sugar alleged to have been

(3) 3 Hurl. & C. 717; s. c. 34 Law J. Rep. (N.S.) Exch. 159.

(4) 36 Law J. Rep. (N.s.) C.P. 61.

(5) 41 Law J. Rep. (N.S.) C.P. 1.

(6) 5 E. & B. 870; s. c. 25 Law J. Rep. (N.s.) Q.B. 102.

(7) 1 E. & E. 652; s. c. 28 Law J. Rep. (N.S.) Q.B. 188.

(8) 6 East, 614.

(9) 6 Moo. P.C. 116, 127, 133, 134.

10) 11 Moo. P.C. 551.

NEW SERIES, 41.—Q.B.

sold by the plaintiffs to the defendant. The sugar perished by fire while still on the premises of the sellers, and the defence raised is two-fold, first, that the property in the sugar had not passed from the plaintiffs, the sellers, to the defendant, the buyer, and, consequently, that the loss must fall on the sellers. Secondly, that even supposing that the first point were decided against the defendant, yet, that inasmuch as these goods were covered by insurances effected by the plaintiffs, and the latter have received the amount insured, the defendant is entitled to have what the plaintiffs have so received in respect of those goods set off in his favour against the price. Now the first question is whether at the time these goods perished by fire they were the property of the sellers, the plaintiffs, or of the buyer, the defendant. In order to decide that, as also to determine the second question in dispute, we must see what was the course of dealing between the parties. The defendant is a sugar broker, and his trade is to buy from the refiners and to sell to wholesale grocers, and he sells to deliver immediately from the premises of the refiners, for by the course of dealing between the parties, the broker having no warehouse of his own, is allowed, by the terms of the contract, to keep his goods upon the premises of the sellers as of right for a period of two months. At the expiration of the two months the sellers are entitled to call on the broker to come and remove the goods, but inasmuch as the sellers know perfectly well that the goods are intended to be sold to wholesale grocers directly from their premises, and as it does not always happen that the broker is able to dispose immediately of the sugar thus bought, they are in the habit in order to accommodate their customers of allowing the goods to remain on the premises for a certain limited time beyond the two months, and in consequence of this practice a course of dealing has grown up between the parties whereby the sellers engage that the goods shall remain in the warehouse for a certain fixed time at their risk, and to cover their risk they insure. The sugars are to be paid for on the first Saturday a month after the sale, but the

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goods are never weighed until the expiration of the two months, or at such other time as they may be removed from the warehouse of the sellers. Therefore, the contract is that the price shall be paid at the prompt, and as the prompt is short by a month or more of the period at which the goods are removed, and as the goods are never weighed until they are removed, and as the goods are always sold at so much per hundred weight, and the exact price cannot be ascertained until then, the course of dealing is that the quantity contained in each of these "fillings" being known to range within certain limits, an approximate price is taken on the general average, and is paid when the prompt arrives; but as this may turn out to be inaccurate, it is a further term in the dealing that when the goods are finally weighed, which is done immediately before they leave the premises of the sellers, anything paid in excess of the true amount, or short of it, is to be adjusted between the parties. I should add that it is customary at the expiration of the two months, for which period the seller agrees to let the goods remain on his premises, to give notice to the buyer that the two months have expired, and from that time the goods will remain at the risk of the purchaser.

Now this being the state of things, the first question is whether (the contract being in conformity with the general course of dealing to which I have adverted) when these goods perished by fire, the property had passed from the sellers to the buyers. I am of opinion it had, both on general principles and more especially with respect to the particular facts of this case and the terms of the contract. Now, in dealing with contracts, we must bear in mind that the seller engages to do two main things, first to pass the property in the article sold; secondly, to deliver possession of it. The buyer engages to take the thing which he has agreed to buy, and to pay the price, and undoubtedly one essential element of such a contract is that the price should be agreed upon; but there is nothing to prevent the purchaser contracting that the property shall pass, and that the price shall be subsequently as

certained, it being capable of being reduced to a certainty. And the question is whether the property in this sugar had passed? It appears that the price had not been finally adjusted, but it is equally clear that the parties agreed on a price estimated between them, to be taken provisionally as the price for these goods. Independently of the question as to how far, where the price is still to be ascertained on a sale of specific chattels, the property passes, the question is whether the fact of the parties having agreed that a given sum shall be taken provisionally for the price, does not shew a clear intention that the property shall pass. It is very true, as was ably contended, there are authorities for saying that where the price is to be ascertained the property will not pass; but it is equally clear that according to the view now taken of this particular branch of the law, the question is one of intention between the parties. I take it to be now settled, especially after the case of Furley v. Bates (2), that the question in all these cases is to find whether the parties intended that the property should pass, and I take it that no fault can be found with the English law, if a distinction exists between the civil law and our own in this respect. It is true that where something remains to be done, with a view to the appropriation of the thing to be sold by the seller to the buyer, the property cannot be intended to have passed and the property will not pass; but it is equally clear that in point of principle and common sense, there is nothing to prevent a man passing the property in a thing which he proposes to sell, although the price may remain to be ascertained afterwards. I agree to sell to another a specific thing, for example a stack of hay, and he agrees to buy it, the price remains an element of the contract, but we agree, instead of fixing a precise sum, that the exact price shall be ascertained by subsequent measurement. What is there to prevent us agreeing that the property shall pass at once, although the price remains to be ascertained afterwards? If the measurement is to be made, and so if the price has to be ascertained before the property passes,