Supreme Court of Canada
Agricultural Chemicals Limited v. Boisjoli, [1972] S.C.R. 278
Date: 1971-05-31
Agricultural Chemicals Limited (Defendant) Appellant;
and
Roger Boisjoli (Plaintiff) Respondent.
1971: January 29; 1971: May 31.
Present: Fauteux C.J. and Abbott, Judson, Hall and Pigeon JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Sale—Fertilizer—Delivery of product other than the one ordered—Error by vendor’s clerk—Order made out by clerk and signed by illiterate purchaser—Contract non-existent—Damages—Liability—No duty on purchaser to check.
The plaintiff, a tobacco grower, went to the defendant’s place of business and, requesting five tons, presented to the clerk a price list of the defendant’s fertilizers, on which his wife had underlined “Potassium Sulphate”. The clerk made out a typewritten order and wrote “Ammonium Nitrate”, which is in the price list the next item after “Potassium Sulphate”. The plaintiff, who cannot read, signed a copy of the order. The application of ammonium nitrate had serious consequences, and the plaintiff sustained a loss. The trial judge held that both parties were equally at fault and his decision was affirmed by the Court of Appeal. The defendant appealed to this Court and the plaintiff cross-appealed to recover the full amount of his damages.
Held (Pigeon J. dissenting in part): The appeal should be dismissed and the cross‑appeal allowed.
Per curiam: The plaintiff did not remain bound by the contract that he signed, even though he did not pray for its rescission, because the error in the object of the agreement rendered the contract nonexistent. Furthermore, since the fault was not contractual, the stipulation of non liability in the contract did not apply.
Per Fauteux C.J. and Abbott, Judson and Hall JJ.: In the circumstances, there was no duty on the plaintiff, before using the fertilizer, to check whether his order had been correctly filled, and the sole cause
[Page 279]
of the loss of his crop was the negligence of the defendant’s employee, for which it is responsible.
Per Pigeon J., dissenting in part: The Superior Court and the Court of Appeal correctly divided the liability on account of the plaintiff’s failure to have read to him what was printed in large black letters on each bag delivered to him. Under present-day conditions illiteracy did not excuse the plaintiff from taking the elementary precaution of informing himself as to the instructions printed on the bags. Furthermore, as he was using this type of fertilizer for the first time, the appearance of the product was unknown to him.
APPEAL and CROSS-APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec, affirming a judgment of Demers J. Appeal dismissed and cross‑appeal allowed, Pigeon J. dissenting in part.
Jean Duchesne, Q.C., for the defendant, appellant.
Claude Dugas, Q.C., for the plaintiff, respondent.
The judgment of Fauteux C.J. and of Abbott, Judson and Hall JJ. was delivered by
ABBOTT J.—The relevant facts, as found by the learned trial judge and affirmed by the Court of Appeal1, are carefully reviewed in the reasons of my brother Pigeon.
At the hearing before us, the respondent was not required to answer the appellant on the main appeal and, for the reasons given by my brother Pigeon, that appeal fails.
The damages sustained by respondent were fixed in the Courts below at $32,235.70, but it was held that both parties were equally at fault and respondent was therefore awarded $16,‑117.85. By his cross-appeal, respondent asked that appelant be condemned to pay him the full amount of his damages. In my opinion, he should get his full recovery.
In finding respondent jointly responsible for the loss which he had suffered, the learned trial judge said:
[Page 280]
[TRANSLATION] Does this not amount to negligence on his part? It appears to us that a grower with his experience, recognized by agronomist Turcot to be a good grower, who rotates his crops, ought to have taken precautions of a bon père de famille before using a new product unknown to him.
After hearing his testimony, and that of his wife, we are satisfied that he was undoubtedly negligent—being unable to read—in not getting either his employees or his wife to explain the name of the product that he had bought and the method of applying it. He has therefore by his negligence contributed to defendant’s error, and we find that in the circumstances there was fault by both parties, fault which played a direct and concurrent part in the loss sustained.
With great respect, I cannot agree with that finding.
This farmer wished to purchase potassium sulphate. What he got was ammonium nitrate. He could not read. There is no question on the findings of fact of the trial judge that the order was correctly given. It was given from appellant’s own catalogue—the item being underlined. He was entitled to rely on the vendor and to expect it to deliver what he had ordered. What he received was ammonium nitrate which appeared on the next fine of the catalogue. The evidence established that ammonium nitrate was used by tobacco growers only if they were not seeding a crop in any year, its purpose being to increase the growth of a fodder crop thereby enriching the soil.
The respondent, after taking delivery of the fertilizer supplied to him, returned to his farm, and the same night commenced to spread it over his crop and continued to do so for some days. Some weeks later, he became aware that his tobacco, instead of ripening in the usual way, was growing in length, but, despite expert advice and attention, he lost most of his crop.
In my opinion, in the circumstances as found by the trial judge, there was no duty on respondent, before using the fertilizer, to check whether his order had been correctly filled and the sole cause of the loss of his crop was the negligence of appellant’s employee, for which it is responsible.
[Page 281]
I would dismiss the appeal, allow the cross-appeal and vary the judgment at trial by condemning appellant to pay the sum of $32,235.70 with interest from the date of service of the action. The respondent is entitled to his costs throughout.
PIGEON J. (dissenting in part)—Respondent is a big flue-cured tobacco grower. On July 9, 1963, he went to appellant’s place of business, at Fort Chambly, with one Raynault, a truck‑driver who was returning for one Champagne, a quantity of caked Zell 2-12-12 fertilizer. Respondent went to the office and, requesting five tons, presented to the clerk a price list of appellant’s fertilizers, on which his wife had underlined, and marked with a small vertical stroke in the margin above the line the following item:
Potassium Sulphate 50%
The clerk made out a typewritten order in nine copies on a set of printed forms. On this order he wrote “Ammonium Nitrate”, which is in the price list the next item after “Potassium Sulphate”. The clerk then gave respondent the order and had him sign the copy headed “Sales Dept.” (the yellow copy).
Respondent can sign his name, but he cannot read. He therefore signed without reading, and without the clerk being aware of his inability to read. After that, respondent talked with one Legault, who was in charge of production and delivery at appellant’s plant. Then the merchandise was loaded on the truck by appellant’s employees assisted by Raynault and respondent. There were only 105 80-lb bags, or 4.2 tons, available. The order was accordingly altered in ink; respondent signed the copy to be used as delivery sheet, which is headed “Factory Copy” (the blue copy).
The application of ammonium nitrate instead of potassium sulphate had serious consequences.
[Page 282]
The tobacco did not ripen, and the resulting loss amounted to $32,235.70.
In the Superior Court, André Demers J. maintained the action for half the amount of the loss, and his decision was affirmed by a unanimous judgment of the Court of Appeal. Both Courts refused to give credit to the testimony of appellant’s clerk, who denied that respondent had given him, to prepare the order, a price list with an item underlined and contended that Raynault was the one who gave him a bit of paper, the end of an envelope, on which had been written:
[TRANSLATION] “Tobacco fertilizer, 2-12-12, and ammonium nitrate, five tons.”
Nothing shows that this finding was erroneous. This is essentially a question of credibility, and it was quite proper to accept respondent’s evidence, which is corroborated by Raynault, rather than the clerk’s.
Appellant contends that respondent remains bound by the contract that he signed, because he did not pray for its recission. It relies particularly on the decision of the Court of Appeal in Spénard v. Guertin. That was an entirely different case. The purchaser was not claiming that he had not been given what was ordered: he was alleging misrepresentation. The decision is based mainly on what Baudry-Lacantinerie says under the heading “Des Obligations”, para. 50 et seq. This author makes a distinction between cases in which an error renders the contract “non-existent”, and those in which it is grounds for rescission. In the first category, he mentions especially an error “on the object of the agreement.” This is undoubtedly the case here. Respondent ordered potassium sulphate, and he was given an order for ammonium nitrate to sign. Hence there was no real consent, only an appearance of consent. The signature affixed to a document does not have the absolute effect claimed for it by appellant: if this
[Page 283]
signature was affixed through an error destructive of consent, the contract was non-existent despite the signature (Rawleigh v. Dumoulin).
Appellant contended that its liability was excluded by the terms of an agreement headed “Customer’s Contract of Sale”, which respondent signed on January 5, 1956. In this document there are the following clauses:
[TRANSLATION] CLAIMS: All complaints or claims of whatever kind shall be submitted to us by you in detail and in writing within ten days after receipt of the fertilizer in question, and before it is used; otherwise we shall be released from any obligation or liability concerning such complaints or claims.
We shall be in no way responsible for any fault or delay occurring in the performance or fulfilment of this agreement, or of any sales or orders made thereunder, if we are directly or indirectly prevented therefrom by one or more causes beyond our control.
The trial judge correctly refused to apply these clauses, holding that appellant’s fault was not contractual. In fact, as we have seen, the contract must be treated as non-existent. The fault is therefore quasi-delictual, and consequently the stipulation of non-liability does not apply (Canada Steamship Lines v. The King).
On respondent’s cross-appeal, the question is whether the Superior Court and the Court of Appeal correctly divided the liability on account of respondent’s failure to have read to him what was printed in large black letters on each bag delivered to him. In my opinion the blame was justified. The error committed by appellant’s clerk is definitely inexcusable, but on the other hand widespread education has been the rule in this country for such a long time that illiterates are rare exceptions. Also, the precautions to be taken with dangerous products—of which ammonium nitrate is one—are generally considered, by custom as well as by legislation, as sufficiently drawn
[Page 284]
to the attention of users by printed instructions on the containers. Here, for instance, one can see that precise instruction as to the precautions to be taken in handling the product are printed on the bag filed as an exhibit. Illiterates using such products ought to be conscious of the necessity of making up for their lack of education by having what is printed thereon read to them.
Had respondent not been illiterate, he would certainly not have been excused for spreading the product over his fields without looking at what was printed in large letters on each bag. In my opinion, under present-day conditions, illiteracy does not excuse him from taking the elementary precaution of informing himself as to the instructions printed on the bags delivered to him. Furthermore, as he was using this type of fertilizer for the first time, the appearance of the product was unknown to him.
For these reasons I would dismiss the appeal and the cross-appeal with costs.
Appeal dismissed and cross-appeal allowed with costs, PIGEON J. dissenting in part.
Solicitors for the defendant, appellant: Pagé, Beauregard, Duchesne, Renaud & Desmarais, Montreal
Solicitors for the plaintiff, respondent: Dugas & Dugas, Joliette.
Email this Content