My view, therefore, upon the whole matter is that the trustee desiring to have a judgment on the record as it stands, and not proposing any amendment, the Court ought to adhere to the judgment of the Lord Ordinary, and I accordingly so move your Lordships.
Lord Young concurred.
Lord Trayner —I agree with the conclusion at which the Lord Ordinary has arrived.
The main contention presented by the reclaimer against the Lord Ordinary's judgment was based upon the clause in the agreement or contract of sale between the parties which provides that “the goods are deliverable in the usual and customary manner at Miramichi with all reasonable despatch.” I read that as referring to delivery at Miramichi for the purpose of shipment—not delivery there as to the buyer. The whole clause points to this—that there should be no undue delay in the shipment of cargo. Under the contract the seller had to provide a ship to carry the cargo to Glasgow, and to pay freight and insurance to that port, and such an obligation on the seller rather points in the direction of the cargo being still under his control and at his risk until it reached its destination. I do not mean to say that full delivery of the cargo to the buyer could not have been made at Miramichi, so as to vest the buyer with full property, even although there remained on the seller the obligation to find a ship to carry it and also to pay freight and insurance. But certainly in the usual course a contract of sale c.i.f. contemplates delivery of the cargo at the port of discharge, not the port of shipment. However that may be, the question remains, was the cargo in point of fact delivered to the buyers at Miramichi? The Lord Ordinary justly shows that the averments in regard to this are very vague. The buyers were not personally at Miramichi, and could not therefore themselves receive delivery. Their averment is that they instructed the sellers to receive the cargo as for them, and instructed them to ship the same to Glasgow “as their agents in that behalf.” But nothing is said as to when or how such instructions were given or said, and this averment of agency is too vague and indefinite. It could and should have been made more precise if proof of it was desired. The claimant Reid (who now represents the buyers) was asked if he proposed to amend his statement on this matter, and the answer was that nothing more specific could be said than was already on record. But I think there is no need of further proof on this part of the case beyond what we already have. It is apparent that the sellers did not deliver the cargo to the buyers at Miramichi, or ship it there as agents for the buyers, for the bill of lading shows that they shipped it in their own name, deliverable to them or their assigns at Glasgow. So long as they held these bills of lading the cargo was under their control, and was so much their property that they could have conferred a right to it upon anyone to whom they pleased to indorse the bills of lading. But the terms of the bills of lading tend also to show that Glasgow was the port of delivery and not Miramichi. I come therefore to the opinion (with the Lord Ordinary) that the transit of the cargo as between seller and buyer did not terminate at Miramichi but at Glasgow, and that being so, the cargo was duly stopped in transitu by the sellers' notice to the ship on its arrival at the port of delivery.
The only other argument maintained on behalf of the claimant Reid was that the buyers had paid for the cargo by accepting bills for the price in favour of the sellers, and that the latter were thereby barred from claiming the price of the cargo as on the contract of sale, or exercising any right as sellers—that the only right which remained to them was to operate diligence on the bills. I think it enough to say that in the circumstances of the case that argument is not in my opinion tenable.
Lord Moncreiff —I am of the same opinion. On both points I agree with the Lord Ordinary. On the first question of transit it is plain from the memorandum of agreement between the sellers and the buyers that the destination of the goods was Glasgow. The vessel to carry the goods from Miramichi was to be chartered by the sellers, and in point of fact it was chartered by them, and the bills of lading
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No doubt if on arrival of the goods at Miramichi they had been delivered to the buyers or their agent it might have been held that transit was at an end; but this was not done. The goods were put on board the vessel by the sellers and were still on board when the stoppage took place.
The only clause on which the claimant Reid can found is that in the agreement—“The goods are deliverable in the usual and customary manner at Miramichi,” &c.
But this clause must I think be read in the light of the rest of the document, and so read amounts to no more than this, that the goods were to be brought to Miramichi in due time to be shipped there during the shipping season.
The second question is whether the claim for the sellers is barred by their having endorsed the bills of lading in exchange for acceptances by M'Dowall & Neilson. In my opinion the payment so made was conditional, and as the acceptances were immediately found to be worthless owing to the insolvency of the buyers, Snowball Company, Limited were unpaid sellers in the sense of section 44 of the Sale of Goods Act, and were entitled to stop the goods in transitu and resume possession of them. The acceptances were not those of a third party but those of the buyers themselves, and they could not have been discounted.
In these circumstances I am of opinion that the mere addition of the word “approved” has not the effect of depriving the payment of its conditional character. I am therefore of opinion that the Lord Ordinary has rightly sustained the claim for the sellers J. B. Snowball Company, Limited.
The Court adhered.
Counsel for the Claimant and Reclaimer M'Dowall & Neilson's Trustee— Clyde, K.C.— MacRobert. Agents— Drummond & Reid, W.S.
Counsel for the Claimants and Respondents J. B. Snowball Company, Limited— Salvesen, K.C.— C. N. Johnston, K.C.— Horne. Agents— Webster, Will, & Company, S.S.C.