App. Div. 1914 the defendants are merchants carrying on business at Calgary, in the Province of Alberta. The claim of the plaintiffs is for BUTTERICK $362.51 for goods sold and delivered to the defendants pursuant to an agreement in writing executed by the parties. PUBLISHING Co. v. WHITE AND WALKER. Simmons, J. at The agreement in writing provided that the plaintiffs appointed the defendants "to act as special agent for the sale of its patterns in the city of Calgary: to sell and deliver f.o.b. Toronto, patterns at 50 per cent. of retail prices and advertising matter at the prices specified on the reverse side hereof." "To allow defendants to return twice during each year nine-tenths of the sum paid for them, patterns purchased hereunder, in exchange for new patterns to be shipped thereafter.” "To permit the sum of $100, part of purchase price of patterns to stand unpaid on its books as standing credit." "The defendants agreed to purchase from the party of the first part, and to keep on hand for sale at all times during the period this agreement continues in force, except in the months of January, February, July and August, patterns to the amount of $300 at 50 per cent. of retail price." "To allow the plaintiffs or any party delegated by it to examine and take account of the pattern stock at any time it may desire. To purchase for free distribution advertising matter from the plaintiffs to a number not less than 12,000 sheets of Butterick Fashions and 400 small quarterly catalogues per annum. To pay the plaintiff's for patterns to be furnished by its original stock, the sum of $200 as follows: $30 upon signing contract, balance 30 days after shipment of stock, less credits as per attached clause, and to pay for other goods purchased on or before the fifteenth day of the month succeeding the month of purchase." The agreement was to continue in force for five years and from year to year thereafter until terminated by notice. The defendants then signed an order for goods to be delivered f.o.b. Toronto for original pattern stock including September issue of $300 and new patterns each month commencing with October issue and certain other supplies at prices specified. The contract contained a clause requiring the defendants to handle no other pattern goods but the plaintiff's. In June, 1912, the plaintiff's agent, L. C. Ross, canvassed the defendants with the view of making a contract and was advised by the defendants that they had a contract with the Pictorial Review Pattern Company which required them to deal exclusively with the Pictorial Company. Ross suggested that they cancel this contract, admitting, however, that they had no legal right to do so, but expressing the opinion that the Pictorial Pattern Company would not cause the defendants any trouble. Ross also drafted two letters which the defendants were to forward the Pictorial Company, the first one notifying them of termination of their sales agreement with the defendants and the second in reply to a probable reply to the first letter protesting against the action of the defendants. The defendants admit, however, that they assented to the suggestion of Ross to dishonour the Pictorial Review Contract because they were of the opinion that the plaintiff's contract was a better one for them. The goods were ordered on the 11th of June and on the 15th of June, the defendants decided that they would not carry out the suggestion of Ross to refuse performance of their agreement with the Pictorial Review and they wrote the plaintiffs advising the plaintiffs of their decision and asking the plaintiffs to cancel the agreement made by plaintiffs with the defendants and to return the $30 deposit. The letter was addressed to plaintiffs' agent Ross, who admits that he received it at Winnipeg on June 27th, 1912, but he inadvertently omitted to forward it to his principal until July 19th, 1912. The plaintiffs replied insisting upon the defendants carrying out their contract. The defendants replied on July 23rd, advising the plaintiffs that any goods shipped would be returned at the plaintiff's expense. The plaintiffs admit that they received the notice of the defendants purporting to cancel the order for goods before they were shipped, and that the first shipment of goods was made on July 27th, 1912. At the trial the defendants alleged that the contract with the plaintiffs was not to take effect until the defendants had App. Div. 1914 BUTTERICK PUBLISHING Co. v. WHITE AND WALKER. Simmons, J. App. Div. 1914 PUBLISHING been released by the Pictorial Review Company, but the correspondence does not in any way indicate such an arrangement. BUTTERICK The defendants also set up as a defence that the plaintiffs were carrying on business in the Province of Alberta under an agency contract with the defendants and are debarred from maintaining an action by the Foreign Companies Ordinance. The trial Judge upheld this view and dismissed the plaintiff's action with costs. Co. v. WHITE AND WALKER. Simmons, J. The Standard Fashion Co. v. McLeod, was a case quite similar to this one and the judgment of the trial Judge was set aside upon appeal, 7 Alta. L.R. 145. The Court of Appeal held that the contract was not one of agency, but one of sale, and the ground of the judgment of the trial Judge cannot therefore be sustained in the present case. Notwithstanding this, however, the plaintiff's fail upon another ground. They sue for goods. sold and delivered. They admit repudiation before shipment -that is to say before delivery f.o.b. Toronto. In order to succeed in their action they must establish appropriation of goods in pursuance of the contract so as to vest the property in the goods in the defendants. If the property in the goods has not passed to the defendants at the date of repudiation, the action should be a claim in damages for non-acceptance. Leake on Contracts, page 771, enunciates the reason for this rule "a party to a contract is bound to take all reasonable means to mitigate damages consequent upon the breach of the other party upon this principle in actions for not accepting goods sold, the seller cannot recover the full price as to damages, but only the difference between that and the price for which he could sell them to another person. If the right of property has not been divested out of the vendor, he cannot bring an action for the price of the goods." Addison on Contracts, 11th ed., p. 635. The Sales of Goods Ordinance enacts that "where the buyer wrongfully neglects or refuses to accept and pay for the goods the seller may maintain an action against him for damages for non-acceptance. measure of damages is estimated loss directly and naturally resulting in the ordinary course of events from the buyer's breach of contract." Section 48, ch. 39, C.O. Sub-sec. 3 of sec. 48 pro- The vides that there is an available market for the goods, the measure of damages is primâ facie, the difference between the contract and the current or market price where the goods ought to have been accepted or if no time was fixed for acceptance then at the time of refusal to accept.' Atkinson v. Bell, 8 B. & C. 277, 2 M. & Ry. 292, 6 L.J. (O. S.) K.B. 258; Ginner v. King, 7 T.L.R. 140, are leading cases on this view; and Brown v. Muller, L.R. 7 Ex. 319, 41 L.J. Ex. 214, 27 L.T. 272, 21 W.R. 18, for the converse case of the vendor refusing delivery. The plaintiff clearly had the right to sell the goods to a third party when they received notice of the defendant's repudiation and the defendants could not have maintained an action against the third party for possession of the goods. The right of property in the goods not having passed to the defendants, the plaintiff cannot therefore maintain an action for the price, his right of action, if any, would be for damages for non-acceptance. I would, therefore, on this ground dismiss the plaintiff's appeal with costs. Appeal dismissed with costs. McArdle and Davidson, solicitors for plaintiff, appellant. ents. App. Div. 1914 BUTTERICK PUBLISHING Co. v. WHITE AND WALKER. Simmons, J. [APPELLATE DIVISION.] STACEY LUMBER COMPANY, LIMITED (Plaintiff), Appellant v. Debtor and Creditor-Creditors' Relief Act, ch. 4, 1910 (2nd sess.), sec. 4 Section 4 (1), the Creditors' Relief Act, ch. 4. 1910 (2nd sess.), provides that, "A creditor who attaches a debt shall be deemed to do so for the benefit of all creditors of his debtor as well as for himself;" and sub-sec. 2 of the same section says: "Payment of such debt shall be made to the sheriff of the District in which the garnishee resides." Sec. 384 of the Judicature Ordinance prescribes the form of garnishee summons and that form directs the garnishee: "to shew cause why he should not pay into Court the said debt to the extent of the plaintiff's claim and costs." Held, tnat the above provisions of the Creditors' Relief Act when read, as App. Div. 1914 June 30. App. Div. 1914 STACEY LUMBER Co., LTD. v. CAZIER. they should be, along with sec. 384 of the Judicature Ordinance, which was prior legislation on the subject, do not deprive the debtor of his property in and right of disposition of the balance of the debt over and above the garnisheeing creditor's claim. Sec. 4 (1) of the Creditors' Relief Act, ch. 4, 1910 (2nd sess.), which provides that: "A creditor who attaches a debt shall be deemed to do so for the benefit of all creditors of the debtor as well as for himself," intends nothing more than that the sum which an attaching creditor realizes under his attachment shall be shared, like the money realized under an execution, with all other creditors who comply with the conditions; it does not put it in the power of an attaching creditor to withdraw from the control of the debtor merely for the benefit of contingent creditors a larger fund than the amount owing to the attaching creditor. Therefore the Creditors' Relief Act does not change the rule that where a good and valid assignment by a garnishee debtor of moneys owing to him intervenes between a first and second garnishee summons it takes priority over the second garnishee summons. APPEAL from a judgment on an interpleader issue of His Honour Judge Jackson, Judge of the District Court for the District of Macleod. The facts are stated in the reasons for judgment of STUART, J. The appeal was heard by HARVEY, C.J., STUART, and SIMMONS, JJ. C. F. P. Conybeare, K.C., for plaintiff, appellant. Cur. adv. vult. June 30, 1914. The judgment of the Court was delivered by STUART, J.-This is an appeal by the Stacey Lumber Company, Limited from a judgment of His Honour Judge Jackson. A firm of Marquardt and Galwait were contractors doing work for the City of Lethbridge. On the 4th of November, 1912, A. Cazier issued and served on the city a garnishee summons claiming that the city was then indebted to Marquardt and Calwait who were his debtors. The learned District Judge held that at the date of this service there was a debt due by the city to the firm of Marquardt and Calwait and that service of the garnishee summons effectively bound it. On November 18th, 1912, Marquardt and Calwait assigned to the Stacey Lumber Company, Ltd., by an assignment which the learned Judge held to be a good and valid assignment, a sum of $2,390 out of the moneys due them from the city. |