Great Northern Railway Co. of Canada v. Furness, Withy & Co., (1908) 42 SCR 234

Supreme Court of Canada

Great Northern Railway Co. of Canada v. Furness, Withy & Co., (1908) 42 S.C.R. 234

Date: 1909-02-12

The Great Northern Railway Co. of Canada v. Furness, Withy & Co.

1908: November 10; 1909: February 12.

Present: Girouard, Davies, Idington, Maclennan and Duff JJ.

Construction of contract—Traffic agreement—Furnishing cargoes— Freight rates—Failure to find full cargoes—Vis major—Damages.

Appeal from the judgment of the Court of King's Bench, appeal side, affirming the judgment of the Superior Court, District of Quebec[1], which maintained the plaintiffs' (respondents') action, in part, and increasing the amount awarded by that judgment to $3,992, with interest and costs.

The action was for the recovery of damages for breach of a contract to provide cargoes for the respondents' steamers, sailing from Quebec to Manchester, at current rates from Montreal. The alleged breach charged against the appellants (defendants) was that they failed to obtain freight rates for the vessels at Montreal rates and to provide freight for 60,000 cubic feet of unfilled space in the vessels. The items which made up the damages claimed were as follows:

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The defence denied the contract as alleged; set up that the defendants had never been placed in default to settle and determine the freight rates obtainable in Montreal; that they were prevented from fulfilling their contract by a fortuitous event, the destruction of a bridge on their line of railway; that they could not be held responsible for the empty space without having been first put in default to fill the same, which had not been done, and that there was misjoinder, the plaintiffs' causes of action not being susceptible of being united. In the Superior Court, the action was maintained as to the items for differences in freight rates only, but, on appeal, the full amount of the plaintiffs' claim was allowed by the judgment now appealed from.

Alex. Taschereau K.C. appeared for the appellants.

T. Chase-Casgrain K.C. for the respondents.

The judgment of the court was delivered by

Girouard J.—The judgment should be slightly reduced. The appellants are responsible for the difference between the Quebec and Montreal freight rates, but only to the extent of forty per cent, of the cargo of the ship, in accordance with the letter of the 3rd of February, 1903. For this reason, I would deduct $533.25 from the amount of the judgment. We do not grant costs as the appeal fails on the substantial points. The judgment, reduced in amount as above stated is confirmed, without costs.

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Judgment appealed from varied.

Solicitors for the appellants: Taschereau, Roy, Cannon & Parent.

Solicitors for the respondents: Casgrain, Mitchell & Surveyer.