Boulay v. The King, (1910) 43 SCR 61

Supreme Court of Canada

Boulay v. The King, (1910) 43 S.C.R. 61

Date: 1910-02-15

Jean B. Boulay and Adelard Lucier (Suppliants) Appellants;

and

His Majesty The King Respondent.

1909: November 20; 1910: February 15.

Present: Sir Charles Fitzpatrick C.J. and Girouard, Davies, Idington, Duff and Anglin JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.

Contract—Delivery of goods—Conditions as to quality, weight, etc. —Inspection—Rejection—Conversion—Sale by Crown officials— Liability of Crown—Deductions for short weight—Costs.

The Minister of Agriculture of Canada entered into a contract with the suppliants for the supply of a quantity of pressed hay for the use of the British army engaged in the operations during the late South African war, the quality of the hay and the size, weight and shape of the bales being specified. Shipments were to be made f.o.b. cars at various points in the Province of Quebec to the port of Saint John, N.B., and were to be subject to inspection and rejection at the ship's side there by government officials. Some of the hay was refused by the inspector, as deficient in quality, and some for short weight in the bales. In weighing, at Saint John, fractions of pounds were disregarded, both in respect to the hay refused and what was accepted; there was also a shrinkage in weight and in number of bales as compared with the way-bills. The hay so refused was sold by the Crown officials without notice to the suppliants, for less than the prices payable under the contract, and the amount received upon such sales was paid by the government to the suppliants. In making payment for hay accepted, deductions were made for shortage in weights shewn on the way-bills and invoices, and credit was not given for the discarded fractions.

Held, the Chief Justice and Davies J. dissenting, that the appellants were entitled to recover for so much of the amount claimed on the appeal as was deducted for shrinkage or shortage in the weight of the hay delivered on account of the government weighers disregarding fractions of pounds in the weight of that accepted and discharged from the cars at Saint John.

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Per Girouard, Idington and Duff JJ. The manner in which the government officials disposed of the hay so refused amounted to an acceptance which would render the Crown responsible for payment therefor at the contract price.

Judgment appealed from (12 Ex. C.R. 198) allowed in part with costs, the Chief Justice and Davies J. dissenting.

APPEAL from the judgment of the Exchequer Court of Canada[1], which dismissed the suppliants' petition of right with costs.

The case is stated in the head-note and in the judgments now reported.

Lafleur K.C. for the appellants.

 Newcombe K.C. for the respondent.

The Chief Justice (dissenting).—Towards the end of 1901 and the beginning of 1902 the petitioners entered into certain contracts, nine in number, for the sale of a large quantity of hay to the Canadian Department of Agriculture for account of the Imperial Government. The contracts are substantially similar, though not identical in form, and provide for the delivery of the hay f.o.b. cars at shipping points in the Province of Quebec, but subject to inspection and rejection at the ship's side at St. John, N.B. The hay was intended for shipment to South Africa for the use of the Imperial troops during the late war. in that country. The contracts specify in detail the quality of the hay and the size, weight and shape of each bale. The petitioners, by their petition of right, preferred a number of claims amounting to a large sum of money; but all were abandoned at the trial with the

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exception of two amounting respectively to the sum of $544.50 and $2,317.59. The first item was for hay alleged to have been improperly rejected by the Government inspectors and disposed of without notice to the owners; and the second for an alleged shortage resulting from the improper methods adopted in weighing the hay at St. John. The trial judge says:

(1) The suppliants came forward with evidence of about as loose a character as could be possibly presented in support of their claim, and but for the production of information and evidence by the Grown it would have been almost impossible to arrive at the conclusion as to what they were claiming. The Crown has brought forward certain statements which shew the amount of hay rejected, and the reasons given for the rejection.

(2) All the evidence amounts to is practically this, that the suppliants, no doubt, honestly intended to supply hay in accordance with the contract, and they took it for granted that the parties from whom they bought the hay were supplying them with hay of a quality and weight which would fill the requirements of the contract.

It is admitted, however, that a certain quantity of hay was rejected and afterwards sold without notice to the petitioners and that when weighed at St. John it was found that the weight of the hay did not correspond with the weight given on the way-bills.

Two questions are to be considered: First, was the hay properly rejected as of inferior quality to that called for by the contract? Secondly, was full credit given for all the hay actually received and shipped to South Africa? Paragraphs 5, 6 and 7 of the contract read as follows:

5. The hay to be subject to inspection and acceptance by the department alongside the steamship at St. John, New Brunswick. In case more than ten (10) bales in any carload are found not up to the specifications, the whole of such carload may be rejected; and the balance of the contract or contracts then unfilled may be cancelled in the case of any shipper from whom more than three carloads have been rejected in that way.

6. The price to be fourteen dollars ($14.00) per ton of two thousand pounds f.o.b. cars, shipping point.

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7. A number of bales in each car to be weighed at St. John by an inspector for the department; the weight of the carload to be determined on this basis, and any short-weight that may be found to be charged against the shipper.

I am of opinion that under this contract made in the Province of Quebec the hay remained the property of the vendor until it was weighed after having been found to be on inspection up to the standard of quality called for. It appears that competent inspectors were sent to St. John and the uncontradicted evidence is that they carefully inspected the hay when it was taken from the cars and placed in the sheds on the wharves and, again, when removed from the sheds to the ships, and that none was rejected except that which was not up to the requirements of the contract; so that the title to that rejected hay never passed from the vendor to the vendee (1474 C.C.). It is admitted that the department sold the rejected hay of the various shippers for the best price obtainable, forwarded them a true and correct account of all such transactions and remitted the proceeds of all sales. The allegation is that it was necessary to sell the rejected hay because the wharves and railway sidings at St. John were so congested with excessive shipments that it became necessary to clear the premises. Admitting that the Government officials were not strictly entitled to dispose of petitioners' property in this way, there is no evidence that the appellants suffered any damage and for this technical misdoing on the part of the officials, I would not hold the Crown liable in the special circumstances of this case.

It has been argued, however, that by the sale of the rejected hay an active dominion was exercised over it which constituted acceptance. If the buyer deals as owner with goods sold and delivered to him subject to

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inspection before acceptance this may be received as evidence of an intention on his part to accept; but the act of dominion must be such as would justify a jury in finding that the vendee has accepted the goods. But where there is, as in this case, evidence of rejection after inspection, then a subsequent dealing with the goods, not as owner, but as trespasser, if you will, does not constitute acceptance, though the party who does it may be liable for a tort. There is no evidence here of the exercise of any dominion over the goods from which it is possible to infer that the Crown at any time dealt with the rejected hay as owner and there is evidence to justify the conclusion that the suppliants tacitly acquiesced in all that was done and accepted the cheque sent them with the account on 25th July, 1902, as a satisfactory settlement—the present claim not having been brought forward for about three years after the hay was sent to South Africa and a considerable time after all the accounts had been closed between the Department of Agriculture and their principals, the Imperial authorities. I am also of opinion that paragraph 5 of the contract was intended to give and did give to the department the right to reject any carload of hay in which more than ten bales were not up to the specifications; but there was no obligation to do so, and it was in the discretion of the department to accept any portion of any carload that was up to the requirements of the contract and to reject that portion that was below those requirements.

As to the complaint with respect to the weight, Lieutenant Walker H. Bell says:

My instructions were to test each individual ear, and, during that time, I do not think that any one car escaped me. I flatter

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myself that it did not, at all events. It was customary to take ten bales from each car and they were not taken from any one particular spot in a car. As soon as the cars were broken open by the -stevedores, the man would go in and get the hay, and from the time the car door was broken open until the hay was tested, I would be around there all the time. The bales would be tested from different parts of the car. Some would be taken from the top, some from the middle and some from the bottom, as the hay was being taken out. Each separate bale was weighed and measured at the same time.

He adds that he took the exact weight of each bale and made correct returns to Ottawa, and upon those returns the accounts were finally rendered and the cheque for the balance ascertained to be due paid over.

This evidence, which was not contradicted, and as to which Lieutenant Bell was not even cross-examined, establishes that the requirements of section 7 above cited were complied with. The only evidence we have as to the weight to support the suppliants' case is, as found by the trial judge, that they took it for granted that the parties from whom they bought gave them the weights that they paid for. There is no evidence of the exact weights except that which is to be extracted from the returns made by the Government officials.

I would dismiss the appeal with costs.

Girouard J.—I would allow this appeal entirely, because, under the contract, the Crown was not authorized to sell hay rejected. There is no voucher of the price which this sale realized nor of the party to whom it was made. The Crown should at least have been in a position to give this information when requested to do so in St. John, N.B. This is the principal reason why I would allow the full quantity of the hay which the witness Lucier says was shipped in good condition, deduction, of course, being made for what was received and paid for.

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The majority of this court does not share this view of the case. My brother Idington is also for allowing the appeal in toto; two of the other judges are for dismissing the appeal; and the fifth, Mr. Justice Anglin, is for allowing in part.

Not being able to have my conclusion adopted, I declare myself in favour of the opinion of Mr. Justice Anglin, who is to allow the appeal in part with costs before this court. This is the first time since I have had the honour of a seat on this Bench that the individual opinion of one judge became the judgment of the court.

Davies J. (dissenting).—I concur with the judgment of the Chief Justice, but desire to add a few words upon that part of the claim put forward for what was called "shortage." I have read this evidence very carefully and concur with the trial judge in the statement that

the suppliants came forward with evidence of about as loose a character as could possibly be presented in support of their claim

a remark applicable to the entire case. But on the question of shortage the plaintiff's case rests entirely upon a remark or statement made by Macfarlane, one of the defendant's witnesses, when being cross-examined. He was, what he himself described, superintendent of the shipments of hay, but I cannot gather that he interfered in any way with its weighing or had any personal knowledge of that. Answering, however, the following question relating to the method of weighing:

Q.—Although the shipper had invoiced it (a bale of hay) at ninety-nine pounds if you found it to weigh only ninety-eight and three-quarters you stamped it at ninety-eight pounds.

A.—Yes, we could not give one-quarter of a pound. We could

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not take the odd fractions at all. That is not customary in weighing anything wholesale.

Although this evidence is very general and seems only to have been given with reference to what the witness thought was a general custom, and not as to what actually occurred in this case, it might have been enough to found some kind of a claim for at least the quarter-pound discarded if not of all the odd fractions. But the claim on this head was not allowed by defendants to rest on this general and unsatisfactory statement of Macfarlane. Moore, who was in charge at Ottawa under Professor Robertson of the detail work in connection with the shipments of hay, explained very fully and minutely how the accounts had been made up, and that under the term "shortage" what was charged back to claimants was not the actual short weights only, but short number of bales delivered. He contended, in accordance with a letter he wrote claimants on 16th May, 1902, that

the greater part of the shortage was caused by the fact that the number of bales received at St. John was less than the number invoiced by you.

The remaining part of the shortage, therefore, as to which only there could be any question at all was caused by short weights in the bales. On this point claimants' contention, based on Macfarlane's statement, above quoted, was met by the evidence of Lieutenant Bell, the officer who was "inspector of weights and general specifications of all storage contracts." He described with minuteness the manner and way in which he discharged his duties with respect to selection of the bales to be weighed and the manner of their weighing, and, after stating that "each separate bale was weighed and measured at the same time," he was

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asked, "Did you take the necessary time to get the exact weight and measurement of each bale," and answered, "I consider that I did." Now Lieutenant Bell was not cross-examined except to prove that he had not taken any oath under the "Inspection Act," His evidence was accepted by both parties and not a bit of evidence of any kind was given by suppliants to throw even doubt upon his truthfulness or accuracy. On this evidence, therefore, I cannot see that the learned trial judge could make any other finding on the point than the one he did.

Idington J.—The Dominion Government acting on behalf of the home Government undertook to buy immense quantities of hay for the South African War.

The department in charge of the business, by a memorandum of agreement which specified the terms and conditions of purchase, offered to buy from the appellants, at a named price per ton, a specified number of tons of hay compressed into small bales of which sizes and weights and shape and mode of tying appear to have been important things to observe. The appellant accepted by a memorandum of acceptance at the foot. In all there were nine such contracts with the appellant.

The hay was to be as described and "to be shipped for St. John" not later than a stated date, but from where does not appear, unless implied to be from the residence or place of business of appellants where they accepted the contract.

The price was fixed "f.o.b. cars shipping point."

The provisions for inspection were as follows:

The hay to be subject to inspection and acceptance by the department alongside the steamship at St. John, New Brunswick. In case more than ten (10) bales in any carload are found not up to the

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specifications, the whole of such carload may be rejected; and the balance of the contracts then unfilled may be cancelled in the case of any shipper from whom more than three carloads have been rejected in that way.

Inspection of goods bought by sample or description is one of the purchaser's rights.

The time, place, opportunity and method thereof being unprovided for has time and again given rise to litigation.

The parties concerned here expressly provided for all these things as above.

If there had been no such provision the law would have bound the buyer to accept or reject the whole at the point where inspection could rightfully be exercised.

The vendee has no right of selection unless given it out of a vendor's tender at any one time,

The right was in no way modified by this provision beyond its exact terms,

Its terms seem clear, simple and direct. The place for inspection is fixed. The vendee was not driven to the necessity of rejecting or accepting a whole train load. There was a limited power given as to each carload. The right as to that was accurately defined. If ten bales in a car, which was, be it noted, about two and a half per cent. of the whole car, fell short of what the specifications called for, the vendee had the right to reject that car. No right of selection within that limit was given. None could be in law implied any more than in respect of a tender of the whole at one time.

If three carloads fell short the right, and the only right, given was to rescind the whole contract. Surely the protection—the unusual, but prudent, protection— thus given against imposition was ample.

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The vendee in any case in the absence of express provision has the legal right of action for damages for non-fulfilment of the contract if the goods are not up to description or sample.

The incidental right to resist full payment may also exist and to these rights I will presently refer.

What the vendee's agents did in this case was to presume to make a selection which they were not entitled to either in law generally speaking or by the special terms of this contract.

The agents of the vendee thus not only without any right to do so, but of their own mere will took the goods and re-sold them.

I am quite unable to understand how, in law, this assertion of dominion over the goods (in respect of which a supposed mental reservation is alleged to have been made) can be anything but an acceptance thereof. If a vendee takes the goods it does not matter to the vendor what his secret intention may be or what use he makes of them.

The law on the point seems settled in accordance with common sense by the case of Chapman v. Morton[2] and others of a like character.

The cases of an acceptance induced by deception when the acceptance may be withdrawn or of apparent acceptance resulting from mistake are entirely another matter.

The assertion and exercise of dominion was such as to leave a clear right of action to appellants in this case. They were not parties in any way to the selection or rejection or other imaginary name one chooses to call it.

The mere receipt of part payment, unacknowledged

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at the time or later, save as a fact at the trial, cannot affect the legal result.

It was certainly present to the minds of those framing the specifications that some bales would fall below the standard unless they assumed hay-dealers had reached a higher stage than the rest of humanity and would succeed in turning out only absolutely perfect work and ensure its being carried quite dry for hundreds of miles.

It was no doubt also present to the same minds that the event of slight failures should be provided for. This, I think, they did by reducing the possible default to a minimum and a very small percentage of the whole. In this case it would have turned out to be about one and a half per cent. of inferior, but not necessarily worthless hay.

If governments in their contracts could always reach so safe a line they would be doing well, and, indeed, better than ordinary business men.

But assuming, as I think we must, that a perfectly legal intention and method of action are to be imputed to the Crown, we find, I repeat, these goods accepted by reason of what was done.

The implied warranty there was, or right to the reduction of price for failure in quality may have been open to the respondent at the trial. But, in either case, the burthen of proof rested upon the respondent, and that has not been attempted.

The mere rendering of an account and making such a claim supported even by general evidence of the course of inspection and the results reached by the agents of the respondents is not alone sufficient.

The general evidence given by the appellants of their hay having been up to the standard displaces

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(and refutes, if refutation is needed) all that which at its best furnishes no presumption.

As the case stands I think appellants entitled to judgment on this branch of the case for $554.50 and interest from the date of last remittance.

Another matter more difficult to deal with is the actual weight of the hay.

On the one hand appellants have proved their weighing it and claim that is the only thing left to govern the rights of the parties.

On the other hand the contract specifies a mode of weighing and determining the quantity.

That was as follows:

A number of bales in each car to be weighed at St. John by an inspector for the department; the weight of the carload to be determined on this basis, and any short weight that may be found, to be charged against the shipper.

In carrying this out the odd fractions of a pound were deducted from each bale weighed. Macfarlane says in evidence as follows:

Q.—Were you present frequently when they were weighing the hay ? A.—Yes.

Q.—You weighed ten bales in each car ? A.—Yes.

Q.—Supposing one bale was taken out and it was apparently ninety-nine pounds, and your weighers found it to weigh only ninety-eight and three-quarter pounds, the shipper only got credit for ninety-eight pounds? Isn't that right? Although the shipper had invoiced it at ninety-nine pounds, if you found it to weigh only ninety-eight and three-quarter pounds, you stamped it ninety-eight pounds? A.—Yes. We could not give one-quarter of a pound. We could not take the odd fractions at all. That is not customary in weighing wholesale.

Q.—These bales that you have mentioned as being taken from each car, were weighed one at a time? A.—Yes.

Q.—Individually? A.—Yes.

This system adopted was clearly not that laid down by the contract. The contract said that a number of

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bales from each car were to be weighed and the weight of these bales was to determine the weight of the car.

However excusable the docking of the fractional  part of a pound in the total weight of ten bales as specified, or per car, might have been, this is not that, but a gross violation of the language of the contract.

For aught we know there might by this system be deducted nearly a pound per bale, and that as the bales had to be not less than 95, nor more than 105 pounds each, the loss or deduction might approximate one per cent. on the whole shipment.

The entire quantity was 10,106,733 lbs., and the half even of one per cent on this is not a trifle perhaps to appellants.

The half of that even which probably is nearer their actual loss on this score is at $14 a ton, something a frugal man should not despise.

Then there are cases of short shippings, but of these we have only two cars specified and the identification in regard to them covers only sixteen bales or less than a ton.

If the respondent's agents had failed to weigh any, the weights proven to have been shipped would have to be rebutted.

A weighing that is so obviously defective and against the contract does not rebut or stand for anything.

I have no doubt a little patient investigation of the records kept will enable the department to clear these matters up, and it would be worth while for both parties to have this made.

If they cannot agree there should be a reference in regard to these items of short weights and short shippings.

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Duff J.—With respect to shortage of weights and shipments I agree with the view of Mr. Justice Idington. On the remaining contention of the appellants—that in the circumstances of the case the onus was upon the Crown to prove that the hay was below the standard prescribed by the contract, and that they failed to do so—I think the appellants should succeed.

There was a right of inspection and consequently a right of rejection at St. John if the hay should not correspond with the description under which it was sold. Rejection means something more, however, than putting aside physically with the intention of rejecting. It means some unequivocal act on the part of the purchaser conclusively manifesting an election to reject— a return of the goods, an offer to return them, or notice signifying the purchaser's rejection and that the goods are held at the seller's risk. In Fisher v. Samuda[3] at p. 193, Lord Ellenborough states the rule in these words:

It was the duty of the purchaser of any commodity, immediately upon discovering that it was not according to order, and unfit for the purpose for which it was intended, to return it to the vendor, or to give him notice to take it back;

and it will be found stated in the same terms in Cous-ton, Thomson & Co, v. Chapman[4] at pages 254, 256 and 257, and in Grimoldby v. Wells[5] at page 395. The reason of the rule is thus explained by Lord Ellenborough in Hopkins v. Appleby[6]:

When an objection is made to an article of sale, common justice and honesty require that it should be returned at the earliest period, and before the commodity has been so changed as to render it impossible to ascertain, by proper tests, whether it is of the quality contracted for    *    *    *    .   It was incumbent on the defendants to give

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the seller an opportunity of establishing his case by the opinion of intelligent men on the subject, and not throw a veil of obscurity over it, and debar the party from the fair means of ascertaining the quality * * * . The party who extinguishes the light, and precludes the other party from ascertaining the truth, ought to bear the loss.

Failure on the part of the seller to notify the buyer within a reasonable time constitutes an election by the buyer against a rejection for the reasons Lord Ellenborough states. A fortiori any act of the buyer which in Lord Ellenborough's language precludes the purchaser from "ascertaining by proper tests the condition of the property" at the time of inspection and at the same time puts it out of the power of the purchaser to return the property must be treated as an election by the purchaser to accept. In this case both these conditions were present and the act of the agents of the Crown relied upon by the appellants — the sale of the goods — was, moreover, an act of dominion such as has been held to constitute in itself an acceptance. In the last edition of Benjamin on Sales, at page 752, the editors, referring to Chapman v. Morton[7], and Parker v. Palmer[8], make this comment upon those cases:

The two preceding cases shew that a resale by the buyer after he has had an opportunity of exercising an option either of accepting or of rejecting the goods delivered is an acceptance, for by reselling he is presumed to have determined his election.

At the argument I was disposed to take the view that the sale of these goods was an independent tortious act, and that this proceeding was an attempt to sue the Crown for a tort committed by its servants; but under the contract the Crown was bound, I think, to have at St. John somebody with authority to accept or reject the hay, and the acts of the departmental agents there having such authority must, I think, be

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taken as a whole. Taken as a whole, these acts must, on the principles above stated, be held as between the Crown and the appellants to constitute an election not to reject the hay.

Nor when one looks at the history of the rule do I think there is any foundation for a contention which at first sight appears to be susceptible of plausible statement, viz., that the rule in principle rests upon estoppel and, therefore, has no application to the Crown. It would be stretching the doctrine that estoppels in pais do not bind the Crown beyond, I think, all reasonable limits to hold that in cases of purchase of goods by the Crown the considerations upon which Lord Ellenborough bases the rule requiring prompt and unequivocal notice of rejection on the part of the purchaser, have no application. The rule, whatever its history, is now a substantive rule of law (it is embodied in section 35 of the "Sales of Goods Act") ; and there seems to be no satisfactory ground upon which it can be held that it does not apply to transactions between the CroAvn and a subject. The Crown was, therefore, liable for the price of the hay sold subject to any reduction that might properly be claimed (under the rule in Mondel v. Steel[9]) as representing the difference in value arising from the inferiority of its quality; and, on this latter issue, the onus was upon the Crown to shew that the hay sold did not conform to the description contained in the contract. This, I think, has not been satisfactorily proved.

I should notice also the argument that the sale of these goods was justified by the course of business between the parties. A course of business may, no doubt, as effectually as express words, produce a modification

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of the legal incidents of a contract of sale. Here, if it had been proved that the sale of these goods took place conformably to an established course of business known to and acquiesced in by the appellants, I should have had no hesitation in holding that the departmental agents in effecting the sale were acting within their authority as the agents of the sellers; but I have not found such proof in the record.

Anglin J.— The fifth clause of the contract, in my opinion, entitled the Government inspectors to reject every bale of hay which they found to be below standard. If the number of bales "found not up to the specifications" should exceed ten in any carload, they might—they were not bound to—reject the entire carload without further inspection. I do not read the contract as entitling the vendors to compel the acceptance of at least ten bales of inferior hay in every carload, or precluding the rejection of less than whole carloads.

The evidence supports the finding that the inspectors properly rejected the appellants hay, which was not shipped to South Africa. I cannot assent to the view that in the circumstances of this case the subsequent sale of this rejected hay, which encumbered the Government sheds, constituted in itself an acceptance or affords conclusive evidence of an acceptance of such hay. At the most it would be cogent evidence of acceptance. Benjamin on Sales (5 ed.) (1906), page 752. The facts that the destination of all accepted hay was shipment to South Africa and that this hay was not so shipped, taken with the evidence of the officials as to its actual rejection and the reasons for its subsequent sale, make it clear that there never was an

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intention to accept it, and, in my opinion, establish that there never was in law an acceptance.

Moreover, while such an act as the re-sale in question might, in certain circumstances, be held to constitute an acceptance by estoppel, in the case of the Crown the acts of its servants or agents do not bind by estoppel. Bank of Montreal v. The King[10]. The re-sale of the hay may have been such a conversion of the appellant's property as would render an ordinary purchaser liable in damages. But for tortious acts of its servants the Crown may not be held responsible.

I agree with the view expressed by the learned judge of the Exchequer Court as to the meaning which should be ascribed to the phrase "f.o.b. cars" in the sixth clause of the contract, and I am of opinion that for so much of the sum of $2,292.41, admittedly deducted for shrinkage or shortage in weight and for shortage in the number of bales delivered, as represents shortage in the number of bales delivered, the appellants cannot recover. Mr. Moore says that the greater part of the deduction of $2,292.41 was in respect of "short shipments"; but some part of it was made for deficiency in weight of bales, and in regard to this portion of the appellants' claim I think they are entitled to some relief, although the actual sum for which they should receive credit may be comparatively small. I concur in the comment of Mr. Justice Idington upon the evidence of the defence witness, Macfarlane, and in my learned brother's appreciation of the method of weighing described by that witness; and I do not find in the sketchy testimony of Lieutenant Bell anything which satisfactorily meets Macfarlane's

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statement. Bell was not cross-examined, it is true; but neither was Macfarlane re-examined in regard to the method of weighing the bales of hay as described by him in cross-examination. If not before, certainly after Macfarlane's evidence had been given, the burden was, in my opinion, upon the Crown to prove that whatever amount had been deducted for shortage in weight of bales had been rightly so deducted. This involved proving that the weight of the hay accepted for shipment had been ascertained in accordance with the provisions of the contract. This the Crown failed to do.

Upon the evidence as it stands, a legitimate inference would seem to be that by reason of the disregard of all fractions of a pound in the weighing of each individual bale of the number of bales weighed to ascertain the average weight per bale in each carload, pursuant to clause 7 of the contract, a substantial deduction for shortage in weight has been unwarrantably made. The amount so deducted, the appellants are, I think, entitled to recover.

Upon the present record it is impossible to determine what this amount is. Unless the parties can agree upon it, there should be a reference in the Exchequer Court to ascertain it, if the appellants so desire.

Should the respondent admit an amount to be due on the basis of this judgment, which the appellants are willing to accept, they should have judgment for that amount; or, in default of agreement, for such amount as may be found due to them upon the reference, if they elect to take it. Their election should be notified to the respondents within one month from the date of this judgment.

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The appellants have failed upon a substantial part of their appeal, but only by an equal division of opinion in this court. They have succeeded in respect of a part of their appeal, which may or may not prove to be substantial. But they were compelled to come to this court for such relief as they have obtained. They should have their costs of this appeal. The costs of the action in the Exchequer Court, including the costs of the reference now directed, should be reserved to be disposed of by the judge of the Exchequer Court after the reference is had, if it be taken, and, otherwise, after the time for election by the appellant shall have elapsed.

Appeal allowed in part with costs.

Solicitor for the appellants: J. A. Maclnnes.

Solicitor for the respondent: E. L. Newcombe.