The Northern Pacific Express Company v. Martin, (1896) 26 SCR 135

Supreme Court of Canada

The Northern Pacific Express Company v. Martin, (1896) 26 SCR 135

Date: 1896-03-24

The Northern Pacific Express Company (Defendants)

Appellants

And

William Martin and Others (Plaintiffs)

Respondent.

1896: February 29; 1896: March 2; 1896: March 24.

Present:—Sir Henry Strong C.J., and Taschereau, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH FOR MANITOBA.

Bailees—Common carriers—Express company—Receipt for money parcel—Conditions precedent—Formal notice of claim—Pleading—Money had and received—Special pleas.

Where an Express Company gave a receipt for money to be forwarded with the condition endorsed that the company should not be liable for any claim in respect of the package unless within sixty days of loss or damage a claim should be made by written statement with a copy of the contract annexed:

Held, that the consignor was obliged to comply strictly with these terms as a condition precedent to recovery against the Express Company for failure to deliver the parcel to the consignee. Richardson v. The Canada West Farmers Ins. Co. (16 U. C. C. P. 430) distinguished.

In an action to recover the value of the parcel, on the common count for money had and received, the plea of “never indebted” put in issue all material facts necessary to establish the plaintiff’s right of action.

APPEAL from the decision of the Court of Queen’s Bench for Manitoba ([1]), affirming the judgment for the plaintiffs at the trial.

Plaintiffs forwarded a package containing $2,000 in bank bills through the defendants’ Winnipeg office to be delivered to their agent at Wawanesa to whom it was addressed. They claim that defendants did not deliver the package, and having made a demand for the

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return of the money brought action for its recovery as “money had and received by the defendants for the use of the plaintiffs.” To this action the defendants pleaded “payment and never indebted.” Defendants produced a receipt for the money signed by the plaintiff’s agent at Wawanesa, but the trial judge found upon the evidence that the plaintiff’s agent did not in fact receive the money (1), and that the defendants must be deemed to have it still in their possession. The receipt given by the defendants in a “ money receipt book ” showed that they had undertaken that the money should “ be forwarded subject to the printed conditions on inside front cover of this book” to the address of the consignee at Wawanesa, and one of these conditions was that the defendants should not be liable for any claim of any nature arising out of the receipt thereof, “ unless such claim is presented in writing within sixty days from the date of loss or damage, in a statement to which a copy of this contract shall be annexed.” It appeared that the demand was made twenty days after the date of the receipt but without a copy of the contract attached. The trial judge also held that as the claim was neither for loss or damage the condition in question did not apply, and entered a verdict for plaintiffs. On motion before the full court for non-suit or a new trial this judgment was affirmed by the decision now appealed from.

McCarthy Q.C. for the appellants.

This action is brought against a common carrier on the common counts, consequently the judgment in the courts below must rest upon those counts only. Richardson v. Canadian Pacific Railway (2); Bullen & Leake (3).

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The omission to take this ground in precise terms in the præcipe for appeal does not now preclude the appellants from urging that the verdict was against law and evidence, and that the evidence does not fit the pleadings. The Queen v. Chesley ([2]); Cameron v. Milloy ([3]); North-west Travellers Assoc. v. London Guarantee Co. ([4]).

The defendants are not liable as carriers. Vineberg v. Grand Trunk Railway Company ([5]). They made no conversion of the property. The material conditions upon which carriage was undertaken were not followed so as to render defendants liable. They had made a contract against liability and were entitled to have this condition strictly complied with. The plaintiffs were bound to comply with the strict form of demand and notice as a condition precedent. The condition covers the facts of the case in exact language. Richardson v. Canada West Farmers Ins. Co. ([6]), does not apply as there was no condition limiting liability in that case. The defendants gave notice of the arrival of the package, and obtained the consignee’s receipt for same. This was good delivery by the company as carriers and if it remained in their charge afterwards they were merely gratuitous bailees, and they are not charged with such negligence as would make them liable as bailees. The trial judge rendered his verdict merely upon deductions from the circumstances proved, and from inferences. Even if he decided on facts this court could review the findings of the courts below. North British Mercantile Ins. Co. v. Tourville ([7]). Plaintiff must be bound by the strict terms of the contract he has entered into. Colonial Securities Trust Co. v. Massey et al ([8]); McKercher v. Sanderson ([9]);

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Hodkinson v. London & North Western Railway ([10]); McMillan v. Grand Trunk Railway Co. ([11]).

Ewart Q.C. for the respondents. The receipt is not conclusive. There was no manual delivery. The defendants did not plead the condition requiring notice and cannot take advantage of it. Defences of this kind are invariably pleaded, even when conditions subsequent. City of St. John v. Christie ([12]); Bullen & Leake ([13]); Simons v. Great Wt stern Railway Co. ([14]); Lewis v. Great Western Railway Co. ([15]); Roper v. Lendon ([16]); 2 Chitty on Pleadings 279.

The agreement for notice does not apply where defendants had not lost the parcel but were holding it wrongfully, and refusing to deliver it. Scott v. Avery ([17]); Dawson v. Fitzgerald ([18]); Central Vermont v. Soper ([19]).

The condition to carry the parcel and safely deliver it does not in any way depend upon the notice of loss. Clarke v. Gray ([20]). The distinction between a condition which is part of a contract and one which is collateral to it is well marked in Parker v. Palmer ([21]); Richardson v. Canada West Farmers Ins. Co. ([22]). Defendants make no proof that a proper notice was not given. Henry v. Canadian Pacific Railway Co. ([23])

The condition only requires a notice when there has been a loss. There is no evidence that the package was lost; the defendants must be deemed to have it still in their possession. The action is not for loss or damage, but because the defendants having the plaintiffs’ money will not give it to them. Theft by an

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officer of the company, or even by a stranger, is not loss within the meaning of the contract. Hearn v. London & South Western Railway Co. (1); Harris v. Great Western Railway Co. (2).

Notice is not necessary in cases of negligence. In the agreement the language means loss or damage “without negligence” of the company. Fitzgerald v. Grand Trunk Railway Co. (3). The courts will construe contracts under which carriers seek to escape liability strictly. Goldsmith v. Great Eastern Railway Co. (4). When carriers desire to free themselves from any part of their ordinary liability they should use clear and precise words for that purpose. Gordon v. Great Western Railway Co. (5).

Notice is unnecessary because plaintiffs’ claim does not arise out of receipt of the package. It arises out of the fact that the company refuses to give it up.

In jure non remota causa sed proxima spectatur is thus paraphrased by Lord Bacon in Broom’s Maxims, 6 ed. 211. “It were infinite for the law to judge the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that without looking to any further degree.” For examples of the application of this maxim see Winspear v. Accident Ins. Co. (6); Lawrence v. Accidental Ins. Co. (7).

If the company intended to say that it might lose or damage property even by glaring negligence, and that by keeping the fact concealed for 60 days and avoiding notice of claim it was not to be liable, it behooved the company to say so in very explicit terms.

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The judgment of the court was delivered by:

THE CHIEF JUSTICE.—Very full statements of the facts are to be found in the judgments of Bain J. who tried the action, and of the Chief. Justice on the appeal to the court in banc, and I need not repeat them.

We are all of opinion that the non-compliance with the fourth condition printed in the receipt book furnished to the respondents is applicable, and that non-compliance with it constitutes a defence to the action. This was the opinion of Mr. Justice Killam and we think his judgment is in all respects correct. The material portion of that condition was as follows:

And it is further agreed that the Northern Pacific Express Company shall not be liable for any claim of any nature whatever arising out of the receipt of the property above mentioned, unless such claim is presented in writing within sixty days from the date of the loss or damage in a statement to which a copy of this contract shall be annexed.

This condition was not complied with. No claim in writing embodied in a statement to which a copy of the contract was annexed was ever presented to the appellants.

That this is a claim arising out of the receipt of the money is too plain to require any demonstration. The foundation of the respondents’ claim is, of course, the receipt of the money by the appellants, a fact without proof of which no action such as this could be maintained. The case of Richardson v. The Canada West Farmers Mutual Stock & Insurance Company ([24]) relied on by the respondents, does not apply. Upon this case Mr. Justice Killam remarks ([25]), that:

The decision was upon demurrer, and it might not improperly be considered that the plea did not show that in the proof the copy of the written portion of the policy was absolutely required to make it such proof as was a condition precedent to the existence of liability. Here the wording is different, and I cannot consider that there was the required notice unless it was given in a statement to which a copy of the contract was annexed.

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In these observations I entirely agree. Had the case however been in point I should have been unable to follow it. The parties have chosen to enter into contract subject to a condition which the appellants have a right to insist on an exact compliance with. That they have suffered no disadvantage or inconvenience from the respondents’ neglect to comply with it is of course wholly immaterial; the parties must abide by the terms of the contract they have chosen to make for themselves.

It is, however, contended by the respondents that the non-performance of this condition should have been specially pleaded as a defence to the action. I have had some doubt on this point. The respondents have adopted a form of action which might not have been considered adapted to their claim had the point been open, but any objection on that head is now shut out. Having thought fit to sue on the common count for money had and received, the respondents cannot complain that the defence is presented in a general form of pleading applicable to that action. To such a count non-performance of conditions need not be specially pleaded. The general issue of never indebted puts in issue all material facts necessary to be proved to establish the plaintiffs’ right of action and I see no reason why any exception should be made in the case of a condition the performance of which must necessarily be considered as impliedly alleged by the common count in the usual form. I am therefore of opinion that the objection as to the insufficiency of the pleading to let in the defence fails, and that the appeal must be allowed and the action dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellants: Archibald & Howell.

Solicitors for the respondents: Ewart, Fisher & Wilson.