1907. BOWDEN BROS. & Co. v. LITTLE. Honor should have directed the jury that the Chamber of Com- H. C. OF A. merce custom governed the transaction, and in the appellants' action on the additional ground that a verdict should have been entered for the plaintiffs. Several other grounds were taken, as to which the Court refused to grant a rule: Little v. Bowden Bros. (1), and from that refusal the present appeal was brought by leave of the High Court. The substantial grounds of appeal were, that the verdicts were against evidence, and that the learned Judge was in error in directing the jury that the appellants were bound to deliver the onions in a merchantable condition in Sydney except for inevitable deterioration in transit; that he should have directed the jury that there was no obligation on the appellants to deliver the onions in a merchantable condition in Sydney; that the risk of transit was on the respondent; and that the appellants would have fulfilled their contract by shipping onions of the kind contracted for at Kobe and forwarding the proper shipping documents to the respondent, and that on the findings of the jury the appellants were entitled to a verdict. Knox K.C., Lamb and Rolin, for the appellants. The contract. was an ordinary c.i.f. contract between parties in different countries for the supply of goods for shipment, without any special conditions as to the place where the goods were to be delivered. The vendors fulfilled their obligations when they put on board at the port of shipment goods of the contractual description, insured them, and forwarded to the purchaser or his order the policy of insurance, bill of lading, and all necessary shipping documents: Ströms Bruks Aktie Bolag v. Hutchison (2); Ireland v. Livingston (3); Parker v. Schuller (4); Hamlyn & Co. v. The Griendtsveen Company (5); Tregelles v. Sewell (6). [ISAACS J. referred to Wancke v. Wingren (7); Delaurier & Co. v. Wyllie (8).] Lorimer v. Slade (9) does not apply, because in that case other (1) 23 N.S. W. W.N., 131. (2) (1905) A.C., 515. at p. 528. (3) L. R. 5 H.L., 395. (4) 17 T.L. R., 299. (5) 6 T.L. R., 274. VOL. IV. (6) 7 H. & N., 574, at p. 585. (8) 17 Court of Sess. Cas., 167. 88 1907. BOWDEN LTD. 2'. LITTLE. H. C. OF A. goods were involved and the ships were specially mentioned in the contract. If it decides that a c.i.f. contract, apart from special conditions, imports delivery at a place other than the port of BROS. & Co. shipment, it is inconsistent with the English decisions. The first finding of the jury must be taken as a finding that the respondent did nothing to alter the legal incidents of the contract as interpreted by the Judge. If the seller took the risk it is hard to understand why he should undertake to insure, and why there should be any stipulation as to the method of packing. The port of shipment being the place of delivery, the only question is whether the appellants supplied the goods contracted for at that place. Their only obligation as regards quality was to supply onions that were marketable there. If the respondent's contention is correct, it must be because there was an implied warranty. But no such warranty is to be implied unless the facts show that the purchaser relied upon the judgment or skill of the vendor to supply goods reasonably fit for the particular purpose for which they were required: Jones v. Just (1); Benjamin on Sales, 5th ed., pp. 622, 625; Sale of Goods Act (56 & 57 Vict. c. 71), sec. 14, sub-sec. (1). Whether the purchaser did so rely is a question of fact depending on all the circumstances: Randall v. Newson (2). No such question was put to the jury. [They referred to Wren v. Holt (3); Wallis v. Russell (4); Chanter v. Hopkins (5); Gardiner v. Gray (6); Dickson v. Zizinia (7).] [GRIFFITH C.J.-I doubt whether a foreign voyage is a particular purpose within the meaning of the rule]. Assuming that point against the appellants (Brown v. Edgington (8)), they were not dealers in or manufacturers of the articles within the meaning of the rule, and there is no evidence that the respondent relied upon the appellants' judgment. The shippers were not left to select the best according to their judgment, but were bound to ship a certain quantity of an indicated class of onions. [GRIFFITH C.J.-It is somewhat like a case of agency. The (1) L.R. 3 Q.B., 197. (2) 2 Q.B.D., 102, at p. 109. (5) 4 M. & W., 399, at p. 404. (6) 4 Camp., 144. (7) 10 C. B., 602. (8) 2 Man & G., 279. vendor undertakes to select good articles of a particular class of H. C. OF A. 1907. goods on behalf of the purchaser.] The evidence is overwhelming that the appellants did everything reasonably possible at Kobe to ensure that the goods should BROS. & Co. be of the proper quality. Even if there were evidence to the contrary, there should be a new trial to have the proper question tried. BOWDEN LTD. v. LITTLE. [GRIFFITH C.J. referred to Freeth v. Burr (1)]. The evidence is all one way on the question, whether the goods were warranted fit for shipment to Sydney, and the jury have found that the goods were merchantable at Kobe. If the respondent is wrong in construing the contract as requiring that the goods should be merchantable in Sydney he has failed in both cases, and the appellants are entitled to judgment. [GRIFFITH C.J.-A possible definition of "merchantable" would be" onions of the agreed crop and of such a condition and quality that they did not appear on a reasonable examination unfit for shipment to Australia." The meaning of the word varies according to circumstances.] At any rate there is no absolute warranty such as is necessary for the respondent to establish on the present pleadings. [They referred also to Bentsen v. Taylor, Sons & Co. (2); Braithwaite v. Foreign Hardwood Co. (3).] As regards custom, the jury's finding shows that there was no custom binding upon the appellants, and it is irrelevant, if the appellants are right in their construction of the contract. J. L. Campbell and D. G. Ferguson, for the respondent. The first count of the declaration in the cross-action left it open to the plaintiff to contend either that the delivery was to be at Sydney or that it was to be at the port of shipment. The Judge's ruling that delivery was to be at Sydney was not based upon the mere fact of the contract being c.i.f., but upon other considerations as well, e.g., whether or not there was an appropriation of the goods to the contract at Kobe in such a way as to take the control from the shippers and give it to the purchaser. The (1) L.R. 9 C.P., 208. (2) (1893) 2 Q B., 274. (3) (1905) 2 K. B., 543. 1907. BOWDEN LTD. v. LITTLE. H. C. OF A. evidence showed that the goods were to be in the control of the shippers until delivery in Sydney. The property did not pass to the purchaser on shipment. The goods were not consigned to BROS. & Co. the purchaser but to the shippers' agents in Sydney. The risk was upon the person in whom the property was during transit. The fact of the contract being c.i.f. is not relevant to the question what was the place of delivery; the surrounding circumstances must be looked at in order to answer that question. Ireland v. Livingston (1), did not decide that c.i.f. means delivery at place of shipment. [GRIFFITH C.J.-It was not a judgment on that point, but it was a clear statement of what the learned Judge understood to be the meaning of a c.i.f. contract.] None of the cases go so far as to decide that the words c.i.f. settle the question of place of delivery. C.i.f. is really only a reference to the price and mode of payment. [They referred to Jones v. Just (2); Delaurier & Co. v. Wyllie (3).] The property does not pass until the point at which the parties intended that it should pass: Sanders v. Maclean (4). The bill of lading in the present case was transmitted to the agent of the vendors. The naming of the ship by the purchaser did not make it his ship: Benjamin on Sales, 5th ed., p. 394; Shepherd v. Harrison (5). The shipowner was a mere bailee for delivery to the purchaser, and the property did not pass until the goods or the indicia of property in them were handed over to the purchaser in Sydney: Mirabita v. Imperiai Ottoman Bank (6). Even if under the contract the purchaser might have to pay for the goods before delivery, that would not affect the question, what was the place of delivery. The contract was not to ship, but to sell onions. [ISAACS J.-In Lecky & Co. Ltd. v. Ogilvy, Gillanders & Co. (7), a c.i.f. contract is referred to as imposing certain obligations.] The c.i.f. is only one of the circumstances to be looked at in order to discover the intention of the parties. That is the effect (1) L.R. 5 H.L., 395. (2) L. R. 3 Q.B., 197. (3) 17 Court of Sess. Cas., 167. (5) L.R. 4 Q.B., 196, 493; L.R. 5 H.L., 116. (6) 3 Ex. D., 164, at p. 172. (7) 3 Com. Cas., 29. 1907. BOWDEN LTD. 27. LITTLE. of the remarks of Blackburn J. in Ireland v. Livingston (1). If it H. C. OF A. were otherwise, Ströms Bruks Aktie Bolag v. Hutchison (2); and Delaurier & Co. v. Wyllie (3), could have been decided without argument. In Tregelles v. Sewell (4), the goods had been handed BROS. & Co. over to the purchaser in London and paid for. The receipt of the bill of lading did not constitute a delivery, because the goods might still be rejected if not of the kind contracted for. But, assuming that under the contract delivery was to be at Kobe, the evidence as to the condition of the goods on arrival in Sydney shows conclusively that, when shipped, they were not reasonably fit for the purpose for which they were purchased. A verdict the other way would have been unreasonable. The purchaser is entitled to rely upon the rule in sub-sec. (1) of sec. 12 of the Sale of Goods Act 1893, if that is taken to be a statement of the common law. The evidence shows that he relied upon the skill and judgment of the sellers. The sellers knew the purpose for which the goods were required, that is, shipment to Sydney for sale there, and were therefore bound to supply goods such as would reach Sydney in a merchantable condition. [GRIFFITH C.J.-That raises a very difficult question. Is shipment to Sydney such a purpose as is contemplated in the rule? See Dickson v. Zizinia (5).] That case is distinguishable. The goods there were only required to be of the average quality of shipments of that season, so that the warranty was expressly limited. [ISAACS J.—But here the sellers were to ship at a particular date. They would not have been carrying out the contract if they had shipped goods at a different season: Bowes v. Shand (6).] There is no evidence that that requirement was likely to result in unmerchantable onions being shipped. [GRIFFITH C.J.-The obligation was either absolute or to take reasonable care to ship merchantable goods. If it was not absolute, it seems to me that the question as to reasonable care has not been submitted to the jury. I think that "merchantable" means, not such as will in fact carry to Sydney, but such as would be bought by merchants as goods that will carry.] (1) L. R. 5 H.L., 395. (2) (1905) A.C., 515. (3) 17 Court of Sess. Cas., 167. (4) 7 H. & N., 574. (5) 10 C.B., 602. (6) 2 App. Cas., 455, at p. 480. |