Cussey, F.A. The point for decision in this appeal is whether the plaintiff appellant is entitled to be paid for the balance of a quantity of timber which he claims was delivered by him, and accepted by the defendants, under the terms of a written contract between the parties. Shortly stated, the Agreement which was in respect of goods unascertained when it was entered into provided that in consideration of advances of money to be made by the defendants to the plaintiff, the plaintiff would as required by the defendants fell trees cut them into lengths, prepare them into logs to the defendants specification and satisfaction and haul transport and deliver such logs to the defendants beach at Arusu Kiri (Abonema) “where the measurements shall be made by the defendants representatives in the presence of the plaintiff or his representatives.” Clause 2 of the Agreement contained particulars as to the method of measuring the logs. Clause 4 (a) provided that the defendants should specify the species of logs required and for all such logs as shall be paid the contract price (as in the specification annexed to these presents). No specification was produced annexed to the Agreement but it is not in dispute that the price was 4s-3d per cubic foot.
On the 29th June, 1951, the date of the Agreement the plaintiff received an advance of £1,000. On the 10th August, he received a further advance of £1,000 and on the 7th October, 1951, £3,000 making a total advance of £5,000 besides two smaller sums amounting to £19. .Between the 17th September and the 9th December, 1951, the plaintiff rafted and delivered to the defendants beach at Arusu Kiri 808 logs. He produced the defendants receipts for this quantity and claimed on the basis of a summary of the cubical contents of those logs (Exhibit K) make by his workmen at the place of production and calculated at 4s-3d per cubic foots, the sum of £11, 933-7s-5d as the total value of logs supplied to the defendants. For this amount and timber logs, value £50 and nails for rafts £18-12s-9d a total £12,000, he claimed a credit to off-set the advances of £5,000 leaving a balance of £7,000 as due to him from the defendants. In support of his claim the plaintiff appellant produced 12 receipts issues by the defendants for 781 logs delivered at their beach and explained that 27 logs had been lost at the defendants beach (it turned out that they had been lost in transit) and for these the defendants had refused to give a receipt.
Giving evidence, the plaintiff alleged that the defendants by their representatives had selected, inspected and approved all the logs at the places of production before they were rafted to the defendants' beach at Arusu Kiri and that they were, therefore, then delivered to and accepted by the defendants under the contract.
In his evidence the defendants' representative said that he did not inspect logs lying in the creeks at the point of production for the purpose of acceptance for there were no proper facilities for accepting logs there; that the logs were to be accepted at their beach at Arusu Kiri in Abonnema and he explained the method of examination there, namely to take the logs out of the water and inspect them for defects; if found suitable for export, those logs were then measured and the measurements recorded for the purpose of entry in a Purchase Specification. According to him rejected logs were put back into the water and were the plaintiff's property. He added that it was not possible to examine logs properly in the water. He referred to Exhibit H being 22 Purchase Specification Notes for all the logs, delivered by the plaintiff, which the defendants had measured and accepted under the contract. It is noted that each Purchase Specification is signed by the plaintiff under a Certificate “I certify that the above particulars are made to my entire satisfaction” and contains the date, reference number of each log, its measurement in feet and inches and cubical content and the amount payable in respect thereof.
On a review of the evidence the learned trial Judge held that acceptance and delivery took place at the defendants' beach, that Exhibit H was the final indication of delivery, acceptance and sale and, that the Purchase Specifications formed the basis of payment. The learned Judge was unable to accept the plaintiff's evidence as correctly representing the transactions between the parties. He further held that the plaintiff had not observed his part of the Agreement and that he had no claim against the defendants for logs other than those itemised on the Purchase Specifications, Exhibit H.
From this Judgment the plaintiff has appealed. Referring to paragraph 4 (a) of the Agreement which provides that the defendants' shall specify the species of logs received, Dr Udoma has argued strongly that if the defendants' representative inspected the logs in the creeks as is borne out by a letter Exhibit J, this amounted to acceptance and took place at the point of production and that the property in the logs passed to the defendants before or upon delivery at the defendants' beach.
He further submitted that the Purchase Specification Notes were not referable to the contract as fixing the liability of the parties, but were only calculations of the amounts payable to the plaintiff and that the defendants had failed to prepare, for the plaintiff's verification, similar Notes in respect of the remaining logs delivered to the defendants. This argument, in my opinion, overlooks the essential difference between inspecting an article and accepting and appropriating it under a contract. It is settled law that in a contract for the sale of goods if an act remains to be done by or on behalf of both parties before the goods are delivered, the property is not changed. It is also settled law that upon the sale of goods by admeasurement, the stipulation of admeasurement and of delivery at a particular place renders the sale conditional and incomplete until those events occur. Until then, the goods are at the vendor's risk. In this case the plaintiff admitted in evidence that according to the Agreement the measuring was to take place at the defendants' beach in the presence of himself or his representative and of the defendants. He added later that as-measurement in the presence of both parties was not convenient, he made his own measurements giving a lot of allowance to avoid dispute. In her words the plaintiff sought to hold the defendants liable upon his own measurements before the logs were rafted. That may have suited him but it was clearly contrary to the express terms of the Agreement. The plaintiff had bound himself to measure the logs himself or by his representative at the defendants' beach. This he failed to do as to the timber in dispute. The cubic contents of the logs delivered to the defendants could not be ascertained nor the price calculated before measurement and the concurrence of the plaintiff in this act of measurement was necessary under the Agreement. This question is dealt with in Logan v. le Mesurier reported in 13 English Reports p. 628.
There A entered into a written contract with B for the sale of a quantity of red-pine timber then lying above the rapids in the Ottawa River, stated to consist of 1391 pieces measuring 50,000 feet to be deliverable at a certain boom at Quebec and to be paid for at the rate of 91/2d per foot, measured off. When the timber arrive at Quebec, and before it was measured and delivered, the raft was broken up by a storm, whereby a great part of the timber was dispersed and lost. After the storm B, collected such of the timber as could be saved, paid salvage for it and applied the timber so saved to his own use. In an action by B against A to recover advances made and for breach of contract; etc., it was held by the Privy Council, affirming the Judgment of the Court of Appeals in Lower Canada, that by the term of the contract, until the measurement and delivery of the timber was made, the sale was not complete; that the transfer of the property was postponed until the measurement at the delivery; that the risk remained with the seller, and lastly that the taking possession of a part of the timber by B could not be considered as an acceptance of the whole nor could it be considered as an admission that the property in the timber had passed to him before the storm which broke up the raft.
In the instant case the plaintiff elected to raft all the timber and then in January 1952 he went to the defendants and signed the Purchase Specification in the form already stated. He elected to waive being present at the actual measurement of the logs. It is fair to assume however that before he signed the 22 Purchase Specification Notes he verified the measurements and checked the particulars with his Log Ledger, a comparison with which would at once reveal that certain logs only as specified had been accepted and appropriated by the defendants under the Agreement. The plaintiff says the remaining logs in respect of which he sues were then lying at the defendants' beach but he was never asked to remove them .In my opinion he must have been aware that they had not been appropriated to the contract and that they remained there at his risk.
Pointing to the evidence of the plaintiff's fourth witness, that in June 1952 the plaintiff was told that the logs had been shipped, and when he visited the defendants' beach in August, 1952, the logs were not there and the beach was cleared and closed, Dr Udoma has submitted that it must be inferred that the timber was eventually shipped by the defendants and therefore appropriated by them to the contract.
As to this, it is sufficient to say that there are no findings by the Court below upon this aspect of the case for the simple reason that the matter 'was not raised at the trial. It rests upon the bare assertion of the plaintiff's witness made for the first time at the trial, and it is not without significance that the plaintiff himself does not allege it, the defendants' witnesses were not questioned upon it and no such allegation was made in the letter of the plaintiff's solicitor before action.
For these reasons I think the plaintiff-appellant's claim was rightly dismissed in the Court below and I would disallow this appeal.
Foster Sutton, P. I concur. de Comarmond, Ag. C.J. I concur.
Appeal dismissed.