on its way to the purchaser, can be considered to be within the meaning of the words, "crops, lands, fences, plantations, or buildings and their contents," unless contained in a building, which it was not.

In the absence, then, of proof of negligence, the defendants cannot be held liable; and no claim based upon negligence was made, but, on the contrary, any such claim was plainly repudiated by the plaintiff at the trial.

Having reached this conclusion on this branch of the case, it is not necessary to express any opinion upon the question of contributory negligence, or any like defence.

I would allow the appeal and dismiss the action.*

* See now 8 & 9 Edw. VII. ch. 9, sec. 9 (D.):-Sub-section 1 of section 298 of the said (the Railway) Act is amended by striking out the words “crops, lands, fences, plantations, or buildings and their contents," in the first and second lines thereof, and substituting therefor the words "any property," and by inserting after the word "recoverable," in the 9th line thereof, the words "under this section." Provided further that the company shall, to the extent of the compensation recoverable, be entitled to the benefit of any insurance effected upon the property by the owner thereof. Such insurance shall, if paid before the amount of compensation has been determined, be deducted therefrom; if not so paid, the policy or policies shall be assigned to the company, and the company may maintain an action thereon.

CARRIERS OF GOODS-BREACH OF CONTRACT.

ONTARIO.]

[LATCHFORD, J.

TOLMIE V. MICHIGAN CENTRAL R.W. Co.

(19 O.L.R. 26.)

Railway Carriers of Goods-Bill of Lading-Delivery of Goods without Surrender of Condition-Claim for Loss-Time-Breach of ContractQuantity "More or Less."

A bill of lading of the defendants, covering wheat shipped, provided that its surrender should be required before delivery of the wheat, and that claims for loss or damage must be made in writing to the defendants' agent at point of delivery promptly after arrival of the wheat, and if delayed for more than thirty days after such delivery, or after due time for delivery, the defendants should not be liable in any event:

Held, that the failure to make such claim in writing within the time specified did not relieve the defendants from liability resulting from breach, not of their contract of affreightment, but of their contract to deliver the wheat to the holder of the bill of lading and to no one else.

Where, therefore, the defendants had delivered the wheat without obtaining surrender of the bill of lading:

Held, that the defendants were liable to the consignor to the value of the number of bushels of wheat expressed in the bill of lading to have been received by them, but not for any more, although more had been actually shipped, and the words "more or less" in the bill of lading did not, in the circumstances, affect the matter.

Mercer v. Canadian Pacific R.W. Co. (1908), 17 O.L.R. 585, distinguished.

THIS was an action tried by LATCHFORD, J., without a jury, at St. Thomas, on April 14th, 1909.

The facts of the case are stated in the judgment.

J. M. Glenn, K.C., for the plaintiff.

D. W. Saunders, K.C., and W. B. Kingsmill, for the defendants, cited Mercer v. Canadian Pacific R.W. Co. (1908), 17 O.L.R. 585, and the cases therein referred to.

May 14, 1909. LATCHFORD, J.:-On November 19th, 1907, the plaintiff, a grain merchant at Rodney, shipped a car of wheat from that village by the defendants' railway, consigned to the Traders Bank at Dutton, for one Hollingshead. A bill of lading was delivered to the plaintiff by the defendants' agent at Rodney. It is admitted that the form of the bill of lading has been approved of by the Board of Railway Commissioners for Canada. The plaintiff placed the bill of lading in the agency of the Traders Bank at Rodney, attaching thereto a draft at ten days upon Hollingshead for $1,058.72, being the price of the 1,102 bushels, 50 pounds of wheat shipped, at 96 cents per bushel. The car was, however, billed as containing but 900 bushels, more or less, and the bill of lading covers only that quantity. The bank at Rodney immediately credited Tolmie's account with the amount of the draft, less exchange, and sent the draft and bill of lading to its agency at Dutton, where in the ordinary course of business Hollingshead was to accept and pay the draft, take up the bill of lading, and obtain delivery of the wheat. The bill of lading was indorsed as follows: "On payment of freight and all charges deliver to the order of

Traders Bank, Dutton. (Signed) The Traders Bank of Canada, Rodney, without recourse, A. S. Winslow, manager." Hollingshead accepted the draft, but did not pay it and take up the bill of lading. Owing to some mistake on the part of the defendants' agent at Dutton, or to collusion between the agent and Hollingshead, the car of wheat was delivered, not to the Traders Bank or its order, but to Hollingshead.

In March, 1908, more than three months after the shipment, Tolmie learned for the first time that the car of wheat in question and another car, shipped and drawn against in the same manner, had been delivered to Hollingshead by the defendants. Hollingshead was not required in either case to produce the bills of lading to the defendants. The matter came to the plaintiff's knowledge by the bank charging back to him the amounts of the two drafts, which the bank had in the usual way discounted against the bills of lading. Tolmie went promptly to Dutton and saw there the agent of the bank, the agent of the defendants, and Hollingshead. No explanation was given him as to how the defendants had delivered the wheat without calling for the production of the bills of lading, nor was any explanation forthcoming at the trial. Some arrangement was made early in March, and the value of one of the cars, $870, was paid by Hollingshead in three or four instalments between March 3rd and March 12th. But the car now in question was not paid for. On March 30th Hollingshead made an assignment for the benefit of his creditors. The plaintiff filed no claim with the assignee. No written notice of his loss was given by the plaintiff to the defendants until his solicitor wrote them on April 18th, 1908, that he was instructed to enter suit.

The defendants admit the delivery of the wheat to Hollingshead in breach of their contract with the plaintiff to deliver it to the Traders Bank, but say they are freed from any liability by condition 3 indorsed on the bill of lading, and forming part of their contract with the plaintiff, and that, even if they are not so released, they are relieved from responsibility owing to the negligence of the plaintiff and the plaintiff's agents, the bank, in not sooner notifying him that his draft had not been paid. In any event they say they

should not be held liable for more than the value of the grain stated on the face of the bill to have been shipped by the plaintiff.

The bill of lading bears upon its face, largely in capital letters, the following clause: "If the word 'order' is written immediately before or after the name of the party to whose order the property is consigned, the surrender of this original bill of lading, properly indorsed, shall be required before the delivery of the property at destination, as provided by section 9 of the conditions on the back hereof." Section 9 of the conditions repeats this provision, with a modification that is not material in the present case. The word "order" is written immediately before "Traders Bank, Dutton," the party to whose order the property was consigned. The defendants admittedly did not require before the delivery of the property at its destination the surrender of the original bill of lading, and the plaintiff lost the value of the wheat shipped.

Condition 3, on which the defendants rely, is as follows: "No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee. The amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment under this bill of lading, unless a lower value has been agreed upon or is determined by the classification upon which the rate is based, in either of which events such lower value shall be the maximum price to govern such computation. Claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than thirty days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event. Any carrier or party liable on account of loss of or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property."

The effect of a condition regarding notice was recently considered in Mercer v. Canadian Pacific R.W. Co., 17 O.L.R. 585. It was there held, following McMillan v. Grand Trunk R.W. Co. (1888), 16

S.C.R. 543, that where loss was sustained owing to the negligence of the defendants, they were relieved by the condition from liability when claim for loss was not made in writing within the time limited by the condition.

When notice is not given in conformity with a condition like condition 3, approved by the Board of Railway Commissioners for Canada, a carrier is, upon the authority of the cases referred to, relieved from all liability arising from loss or damage sustained in transit, or at point of delivery. But the liability for loss or damage from which they are so relieved cannot, I think, be extended to the liability resulting from breach, not of their contract of affreightment, but of their contract to deliver the property carried to the holder of the bill of lading, and to no one else. The delivery by the defendants of the wheat to Hollingshead without the production and surrender of the bill of lading was a flagrant breach of their contract with the plaintiff, clearly and prominently expressed on the face of the bill of lading. The condition pleaded in avoidance of their contract applies only, in my opinion, to such loss or damage as is mentioned in Mercer v. Canadian Pacific R.W. Co., and the cases there cited, and not to a violation by a carrier of his contract to deliver the goods carried only to the consignee, and then only upon surrender of the proper evidence of ownership.

Upon becoming aware of the breach, the plaintiff acted promptly and reasonably. The defendants had knowledge, through their agent at Dutton, of his efforts to obtain payment for both cars of wheat. It is not suggested that the plaintiff could have done more to that end than he was successful in doing. Nor was there, I think, any laches on the part of the Traders Bank. The agency at Rodney must have assumed from the ordinary course of business that the wheat would not be delivered unless the bill of lading was taken up by payment of the draft attached, and the agency at Dutton no doubt considered that the defendants would comply with the contract and not deliver the wheat except to the order of the indorsee. The bank appears to have acted as soon as the delivery to Hollingshead became known to it; and the defendants cannot, I think, escape responsibility by reason of any delay on the part of either agency of the Traders Bank.