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the refiners' warehouses beyond the two At the time of the sale there were no months, although they are more generally other titlers lying stored in the plaintiffs’ removed within that period.

warehouse bearing the same numbers and 18. An impression prevails extensively marks. The numbers in the second coin the trade, both amongst refiners and lumn indicate the number of titlers in their customers (in which impression, the filling; the word "tits.,” which then however, the plaintiffs do not share), that follows, is the abbreviation for titlers; the sugars, whilst in the warehouse, re- and then follows the price in shillings, main at the refiners' risk, even after the which is known to be per cwt. expiration of the two months mentioned 21. Entries of these sales, to the effect in the sold note, until they have been mentioned in paragraph 9, were immeactually weighed and an invoice sent to diately made by the plaintiffs in their the purchaser, and until a notice has also warehouse-book, sale-book, and day-book. been sent to the purchaser, that the sugars Before the fire hereinafter mentioned the are thenceforth at his risk. It was con- plaintiffs drew upon the defendant for an tended, and some evidence given before approximate sum to the price of the said the arbitrator, on the part of the defendant, four fillings, and the defendant duly that there was a general custom or usage accepted and paid the bills before the in the trade to this effect, but the arbitra. fire. After the fire, the defendant, distor does not find that any such custom puting his liability to bear the loss in. or usage has ever existed.

curred in respect of the titlers which 19. The plaintiffs and the defendant remained undelivered and were burnt, have dealt together for many years in the the plaintiffs consented that the paymanner above described, and the defend- ment by bill, in so far as it applied to the ant has frequently, at the plaintiffs' in- titlers in dispute, should be appropriated stance, purchased large quantities of to other items of account between the sugar, which both parties had reason to plaintiffs and the defendant, without prebelieve would not be cleared altogether judice, nevertheless, to any rights which from the warehouse within the two months, such payment might have conferred upon and considerable portions of which have, the plaintiff's, or to their claims against in fact, remained in the warehouse beyond the defendant for the titlers so burnt. that period.

22. Between the 15th of January and 20. On the 15th of January, 1870, the the 15th of March, 1870, the defendant plaintiff's sold, or contracted to sell, to the resold portions of the titlers, and gave defendant 1,090 titlers, comprised in the to various sub-purchasers orders upon four fillings, then manufactured and lying the plaintiffs for the delivery of the said stored (each filling apart) and marked in portions, of one of which the following their warehouse. The following is a copy of the sold note

“ 36, St. Mary-at-Hill: "Sold to Mr. W. Kitching.

“London, 22nd April, 1870.

“Messrs. D. Martineau & Sons,— Please 40 pl. 354

deliver to Messrs. J. & J. Butten & Ginner 40 245

Tits. @ 478. 100 titlers" 44. 40 252

"For Wm. Kitching, 40 239

“F. Behling." " W. K.

The rest were in the same form.
“ D. Martineau & Sons,
“ January 15th, 1870."

23. In accordance with such orders the

plaintiffs from time to time delivered to The numbered marks in the first co- such sub-purchasers titlers to the pumber lumn represent the particular filling sold, and of the mark specified in the said deand are the same as those scratched upon livery orders, and such portions were the bottom of each titler of the filling, and weighed over to and taken away by such upon the wrapper of it. They are called sub-purchasers. Upon each occasion of respectively " forty plain," " forty stroke," the delivery of titlers to a sub-purchaser, " forty-two stroke," "forty-three stroke. a weight note on the form above set out

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was made out and delivered by the plain- been delivered by the plaintiffs to the detiffs to the defendant.

fendant relating to the titlers included in 24. The plaintiff's sold further fillings the sale note of the 16th of February, of titlers to the defendant on the 20th of 1870, although the Monday upon which, January, the 16th of February and the in accordance with the ordinary practico 22nd of February, 1870, in respect of of the plaintiffs, such notice should have which sales a similar course of dealing been delivered, was the 18th of April

. and delivery took place to that which has The number of these titlers undelivered been described with respect to the sale of at the time of the fire and burnt was 239, the 15th of January, and were delivered and their value was 2031. 2s. No overby the plaintiffs to the defendant on the due notice was delivered by the plaintiffs occasion of such further sales.

to the defendant relating to the titlers in25. On the Monday next after the 15th cluded in the sale note of the 22nd of of March, 1870, the plaintiff's delivered February, 1870, but with respect to these to the defendant a notice of which the the Monday upon which, in accordance following is a copy

with the said practice of the plaintiffs, " To Mr. W. Kitching.

notice should have been delivered, was "Please remove the following sugars the 25th of April, and had not arrived now lying here at your risk

at the time of the fire. The number “40 Tits., bought January 15th. of titlers included in the last mentioned

20th. sale note remaining upon the plaintiffs'

20th. premises undelivered at the time of the "Yours,

fire and burnt, was 323, and their value “D. Martineau & Sons.

was 2701. "March 21st, 1870."

29. On Sunday the 24th of April & 26. After this notice had been given, fire broke out on the plaintiffs' premises, and before the fire hereinafter-mentioned, by which stock in trade of the estimated further deliveries were made to other per- value of 35,1171. 68. 7d. was destroyed sons, who had purchased from the defen- or damaged, and amongst such stock were dant portions of the goods comprised in the 932 out of the said 967 titlers comprised said sale notes under similar circumstances in the said sale notes and remaining as to those mentioned in the 21st and 22nd aforesaid undelivered. The price of these paragraphs.

932 titlers the arbitrator finds to be 27. At the time of the fire hereinafter- 7431. 2s. mentioned, 967 of the titlers comprised 30. At the time of this fire the stock in the said sale notes of the 15th and and goods upon the plaintiffs' premises 20th of January and the 16th and 22nd were insured by such policies as have been of February remained in the plaintiffs" before described in the Phoenix and other warehouses, and had not been weighed. offices in the total sum of 30,2001. The plaintiffs, however, were enabled to 31. The claim made by the plaintiffs form an approximate estimate of their upon

these offices for loss and damage on weight and value from their knowledge stock and goods amounted to 35,1171. of the qualitity of the goods, and the 78. 6d., which claim included all stock weight of other titlers which had been and goods upon the premises at the time made about the same time. The total of the fire, manufactured and unmanunumber of titlers in the plaintiffs' ware- factured, and sugars sold or contracted to houses at the time of the fire was 12,121. be sold by the plaintiffs, but not delivered.

28. The number of titlers included in These last mentioned sugars comprised the overdue notice delivered to the defen- the said 932 titlers mentioned in the said dant on the Monday next after the 15th notes, and eighty-two titlers sold or conMarch, 1870, and remaining upon the tracted to be sold to two other persons, plaintiffs' premises undelivered at the which had remained on the plaintiffs' pretime of the fire hereinafter-mentioned and mises for more than two months from the burnt, was 375, and their value was 2701. date of the contract of sale. These 932 No overdue notice was proved to have and eighty-two titlers respectively were

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the only stored goods on the premises 40. The defendant contends, in the which had been sold or contracted to be first place, that the plaintiffs are not ensold and were lying overdue, and in send. titled to recover any sum in respect of ing in their said claim to the offices the the undelivered titlers, and in the next plaintiffs made no distinction between place, if they are so entitled, that the dethese last mentioned goods and other stock fendant should be allowed by way of setin trade upon the premises.

off or otherwise as against the sum claimed 32. The whole amount insured, that is by the plaintiffs, such a proportion of the to say, the said 30,2001., less only a sum insurance money received by the plaintiffs of 3221.58., which was deducted in respect as would be applicable to the 932 titlers of the over insurance of a particular stove, (or, in other words), that the defendant leaving the sum of 29,8771. 158., was al- is entitled to the benefit of the insurance lowed and paid to the plaintiffs by the moneys received by the plaintiffs in the insurance offices; and in addition to such proportion which the value of the 932 sum the plaintiffs were allowed to obtain titlers bears to the total value of the goods salvage of the said stock to the value of destroyed. 2,7331. 108., leaving therefore a loss sus- 41. 'If the Court should be of opinion tained upon

the stock and goods on the that the defendant is entitled to the benepremises, and not covered by the policies,

fit of the said insurance moneys, it is to the amount of 2,5061. 2s. 6d.

agreed that the proportion of the said 33. The value of the total salvage from moneys applicable to the 471 titlers in the fire amounted to the sum of 3,8351. warehouse A is 2731., and that the pro108., of which 1,1021. was sold to the portion of the said moneys applicable to plaintiffs by the insurance offices, and the the said 461 titlers in warehouse B is remaining 2,7331. 108. was retained by 2671., making altogether 5401. the plaintiffs as in the preceding para- 42. The Court is to have power to draw graph mentioned.

inferences of fact, and to make any 34. The proportion of the said sum of amendments in the pleadings which they 2,7331. 108. applicable to the said 932 may think necessary or proper. titlers has been fixed by consent of the 43. The questions for the opinion of parties at 1501., and it is agreed that this Court are, first, Whether the plaintiffs are sum is to be allowed by way of set-off in entitled to recover the price of the undethe reduction of the plaintiffs' claim in livered titlers; and, secondly, If so, whethe event of the Court deciding that the ther the defendant is entitled, by way of plaintiffs are entitled to recover the price set-off or otherwise, to any, and if so, of the undelivered titlers.

what allowance in respect of the insurance 35. The remaining thirty-five out of moneys. the 967 titlers were saved uninjured from the fire, and were afterwards sold by the April 30.-Holker (Greenhow with him), plaintiffs without consulting the defen- for the plaintiffs, contended, first, that the dant upon the subject, and it does not ap- property in the undelivered titlers had pear that the defendant objected to this passed to the defendant so as to transfer sale, or ever made any claim to the said the risk by fire to him. The only ground thirty-five titlers.

which can be urged by the defendant on 39. The plaintiffs contend that they are this subject is that this portion of the sugar entitled to recover in this action the sum had not been weighed. But although the of 7431. 28., being the price of the un- fact that goods have not been weighed as delivered titlers, after deducting from that between vendor and purchaser is relied sum the 1501. which they are willing to upon in the earlier cases, such as Simmons allow as the proportion of salvage due v. Swift (1) and others, yet it must now, to the defendant, and the plaintiffs since the case of Furley v. Bates (2) be further contend that they are not bound under any circumstances to make any

(1) 5 B & C. 857. allowance to the defendant in respect of (2) 2 Hurl. & C. 200; 8. c. 33 Law. J. Rep. the said insurance moneys.

(N.s.) Exch. 43.

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taken to be settled that the intention of sold by the plaintiffs to the defendant. the parties is the proper test as to whether The sugar perished by fire while still on the property in goods sold has passed or the premises of the sellers, and the denot. In the present case the words of fence raised is two-fold, first, that the the sale note, “ Stoved goods at seller's property in the sugar had not passed from risk after two months,” are conclusive the plaintiffs, the sellers, to the defendant, evidence of an intention to transfer the the buyer, and, consequently, that the property-Benjamin on the Contract of loss must fall on the sellers. Secondly, Sale, p. 221; Kershaw v. Ogden (3); that even supposing that the first point Young v. Matthews (4). Secondly, the were decided against the defendant, yet, defendant is not entitled to any propor

that inasmuch as these goods were cotion of the amount insured by the plain- vered by insurances effected by the plaintiffs. The plaintiffs have not received tiffs, and the latter have received the enough to cover their own logs, and as amount insured, the defendant is entitled they effected the insurance without any to have what the plaintiffs have so received agreement with the defendant, they have in respect of those goods set off in his a right to appropriate the amount with- favour against the price Now the first out regard to his claim-The North British question is whether at the time these Insurance Company v. Moffatt (5), Waters goods perished by fire they were the prov. The Monarch Insurance Company (6), perty of the sellers, the plaintiffs, or of The London and North Western Railway the buyer, the defendant. In order to Company v. Glyn (7).

decide that, as also to determine the J. Brown, Thesiger with him (on May second question in dispute, we must see

( 3), for the defendant, contended, first, what was the course of dealing between that the property in the titlers bad the parties. The defendant is a sugar not passed, as they were never weighed, broker, and his trade is to buy from the and it became impossible to ascertain the refiners and to sell to wholesale grocers, price; secondly, that the defendant was and he sells to deliver immediately from entitled to a proportionate part of the the premises of the refiners, for by the amount insured. It was not necessary course of dealing between the parties, the to prove that there was a contract be- broker having no warehouse of his own, tween the parties that the plaintiffs should is allowed, by the terms of the contract, insure the sugar, it was quite sufficient to keep his goods upon the premises of that the plaintiffs did insure, and that the the sellers as of right for a period of two insurance was known to the buyer. The months. At the expiration of the two plaintiffs and the defendant must be taken months the sellers are entitled to call on to have dealt on the understanding that the broker to come and remove the goods, the plaintiffs would insure. He cited but inasmuch as the sellers know perHanson v. Meyer (8), Logan v. Le Mesu- fectly well that the goods are intended rier (9), Gilmour v. Supple (10).

to be sold to wholesale grocers directly Holker was not heard in reply.

from their premises, and as it does not

always happen that the broker is able to COCKBURN, C.J.—This is an action dispose immediately of the sugar thus brought to recover the price of a certain bought, they are in the habit in order to quantity of sugar alleged to have been accommodate their customers of allowing

the goods to remain on the premises for a (3) 3 Hurl. & C. 717 ; 8. C. 34 Law J. Rep. certain limited time beyond the two (x.s.) Exch. 159. (4) 36 Law J. Rep. (N.s.) C.P. 61.

months, and in consequence of this prac(5) 41 Law J. Rep. (N.s.) C.P. 1.

tice a course of dealing has grown up (6) 5 E. & B. 870; 5. c. 25 Law J. Rep. (N.s.) between the parties whereby the sellers Q.B. 102.

engage that the goods shall remain in the (7) 1 E. & E. 652; 8. c. 28 Law J. Rep. (N.s.) warehouse for a certain fixed time at their Q.B. 188. (8) 6 East, 614.

risk, and to cover their risk they insure. (9) 6 Moo. P.C. 116, 127, 133, 134.

The sugars are to be paid for on the first 10) 11 Moo. P.O. 551.

Saturday a month after the sale, but the New SERIES, 41.-Q.B.

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goods are never weighed until the expira- certained, it being capable of being retion of the two months, or at such other duced to a certainty. And the question time as they may be removed from the is whether the property in this sugar warehouse of the sellers. Therefore, the had passed ? It appears that the price contract is that the price shall be paid at had not been finally adjusted, but it is the prompt, and as the prompt is short by equally clear that the parties agreed on a a month or more of the period at which price estimated between them, to be the goods are removed, and as the goods taken provisionally as the price for these are never weighed until they are re- goods. Independently of the question as moved, and as the goods are always sold to how far, where the price is still to be at so much per hundred weight, and the ascertained on a sale of specific chatexact price cannot be ascertained until tels, the property passes, the question is then, the course of dealing is that the whether the fact of the parties having quantity contained in each of these “ fill- agreed that a given sum shall be taken ings" being known to range within cer- provisionally for the price, does not shew tain limits, an approximate price is taken a clear intention that the property shall on the general average, and is paid when pass. It is very true, as was ably conthe prompt arrives ; but as this may turn tended, there are authorities for saying out to be inaccurate, it is a further term that where the price is to be ascerin the dealing that when the goods are tained the property will not pass ; but finally weighed, which is done imme- it is equally clear that according to the diately before they leave the premises of view now taken of this particular branch the sellers, anything paid in excess of of the law, the question is one of intenthe true amount, or short of it, is to be tion between the parties. I take it to be adjusted between the parties. I should now settled, especially after the case of add that it is customary at the expiration Furley v. Bates (2), that the question in of the two months, for which period the all these cases is to find whether the seller agrees to let the goods remain on parties intended that the property should his premises, to give notice to the buyer pass, and I take it that no fanlt can be that the two months have expired, and found with the English law, if a disfrom that time the goods will remain at tinction exists between the civil law and the risk of the purchaser.

our own in this respect. It is true that Now this being the state of things, the where something remains to be done, with first question is whether (the contract a view to the appropriation of the thing being in conformity with the general to be sold by the seller to the buyer, the course of dealing to which I have ad- property cannot be intended to have verted) when these goods perished by passed and the property will not pass ; fire, the property had passed from the but it is equally clear that in point of sellers to the buyers. I am of opinion principle and common sense, there is noit had, both on general principles and thing to prevent a man passing the promore especially with respect to the par- perty in a thing which he proposes to ticular facts of this case and the terms sell, although the price may remain to be of the contract. Now, in dealing with ascertained afterwards. I agree to sell to contracts, we must bear in mind that the another a specific thing, for example a seller engages to do two main things, stack of hay, and he agrees to buy it

, the first to pass the property in the article price remains an element of the contract, sold ; secondly, to deliver possession of it. but we agree, instead of fixing a precise The buyer engages to take the thing sum, that the exact price shall be ascerwhich he has agreed to buy, and to pay tained by subsequent

measurement. the price, and undoubtedly one essential What is there to prevent as agreeing that element of such a contract is that the the property shall pass at once, although price should be agreed upon; but there the price remains to be ascertained is nothing to prevent the purchaser con- afterwards? If the measurement is to be tracting that the property shall pass, and made, and so if the price has to be that the price shall be subsequently as- ascertained before the property passes,

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