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PROVTNCE OF | 
 LOWER. CAN ADA. 5 
 
 In Appeal. 
 
 In a Cause Between 
 
 JOHN JONES, Junior & al. 
 
 (Defendants in Chief and Incidental 
 Flaintiffn in the Court below,) 
 
 Appellants, 
 
 and 
 
 JOHN AVILLIAM WOOLSEY & al. 
 
 {PlninliJJ's in Chief and Incidental 
 Defendants in the Court below,) 
 
 BESPONDEffTS. 
 
 The Jppellasts' Case, 
 
 '^FrilS is caso of a consitlerablo conseqiicnce,astheruletobelai(l 
 down ni it, must oxicnd lo and govern all other cases of sales of Flour, as 
 tine (li)ur. 
 
 The Dcclaratiou is in general Indebitatus assumpsit, and contains six counts. 
 
 The tirst count is for goods, wares and nicrchandizes, to wit : one hun- 
 dred and eij-'hlv-one barrels of Jinc flour, one hundred and twelve barrels 
 of iiirine enirere, two barrels of nVKkHing flour, and three hundred barrels of 
 rejected (lour, bargained and sold by the Respondents to the Appellants. 
 
 The second count is a quantum valebant, for the said one hundred and 
 ci'vhty-one barrels of fine llo\n-, &c. as bargained and sold by the Respon- 
 dcnits to the Appellants. At the conclusion of tluwe two counts, the Le«,- 
 pondents proceed to state that thev had delivered a p.art (if the saul goods, 
 to wit : the said 112 barrels of Ihrine cntiere and " have always been ano 
 still are ready and willing lo deliver lo the saiil Deiendants (Jiiptilaut^) 
 the rciuainder of the said goods, Wiivos and merchandises above.nu;:ilu)r.eri, 
 and so bargahied and sold as aforesaid, lo wil : the said 181 barrels oj Juu- 
 Jlovr, «Si'c."' 
 
 The third count is for goods sold and delivered and a quantum valebant. 
 
 The foi'.rth count is for work and labour and nialeriais found and provid- 
 ed and for money lent and advanced, money paid and laid out, money hail 
 
 and received, and upon an accounl staled. 
 
 J lie 
 
 47079 
 
Tlie fifth count is for ware-house room and store-house room. 
 
 The fiixtli count is a quantum meruit for ware-house room and store- 
 house room. 
 
 The sum demanded by this declaration is £1335, currency. 
 
 Before the expiration of the rule to plead, the Appellants tendered to the 
 Respondents a sum of £252, currency, which sum not being accepted by 
 the Respondents, was brought into court and deposited there. 
 
 To the above declaration the Appellants pleaded, 
 
 FmsT — A plea of general issue. 
 
 Secondly— An incidental demand. In their incidental demand the Ap- 
 pellants' state that on the 24th Nov. 1817, they bought from the Respon- 
 dents one hundred and eighly-one barrels o(Jine flour, 112 harrelsof flour 
 of the kind and description commonly called middlings, and 300 barrels of 
 rejected flour, which several quantities of flour the said Llespondents engag- 
 ed to deliver to the said Appellants when they the said Respcmdents should be 
 thereunto afterwards requested. That the said Appellants afterwards, to 
 wit : &c. at &c. requested the said Respondents to deliver to the said Ap- 
 pellants the said 181 barrels of fine flour, &c. Yet the said Respondents not 
 regarding their said promise and undertaking, did not at llie time when they 
 were so requested, or atany other time or times before or afterwards, deliver 
 or cause to be delivered the said 181 barrels of fine flour, &c. to the said 
 Appellants, but wholly neglected and refused so to do, to tlie damage of 
 the said Appellants of two hundred pounds. 
 
 To this incidental demand the Respondents pleaded that they had never 
 refused to deliver the said 181 barrels of fine flour, &c. but that the said 
 Appellants refused to receive the same. 
 
 Upon the plea to the demand in chief, and upon the above plea to the in- 
 cidental demand, issue was joined, and the two demands consolidated with 
 tlie consent of the j)arties. 
 
 The cause was inscribed on the roll of enquetcs, as well on the principal 
 as on the incidental demand. 
 
 From the Evidence adduced, the following appear to have been the facts. 
 
 On the 24th November, 1817, ]\Ir. Jones, one of the Appellants, agreed 
 to purchase from Mr. Lemoine, one of the Respondents, 181 Barrels of 
 ^ fine flour, at £2 10 the barrel; 112 Barrels of farine enticre,al £2 5 
 the barrel ; two barrels of middling, at £2 5 the barrel ; and 300 barrels of 
 rejected Flour, at £2 the barrel. Mr. Lemoine, at the lime of this agreement, 
 stated to Mr. Jones, that he had these quantities in the Stores of the Hruj. It 
 is said by one witness, that Mr. Lemoine mentioned that the flour had been 
 inspected in July, by Mr. Phillips. From the answers of Mr. Jones on Jaits 
 et articles, it would appear, that the witness had mis-conceived what was 
 said on the occasion ; but however this may be, the fact is altogether im- 
 material, tlie engagement of the Resi)ondents being to deliver merchantable 
 flour. Mr. Jones exannned the lot of flour, which was shewn to him as 
 rejected flour, but did not think it necessary to examine that wliich had 
 been sold to liim as fine flour ; for a reason which will be hereafter ad- 
 verted to. On the 1 0th of the following month, the Respondents delivered 
 
 to 
 
 * 
 
 I V 
 
1 
 
 to the Appellants, the above-mentioned quantity of 112 barrels of farine 
 entiere, ninounling in price to £252. It is lor these that a tender in Court 
 was made of that sum, to the Respondents ; respecliufp them therefore no 
 dirterenco exists between these parties. Afterwards, to wit, on the 15th 
 of December, 1817, the Appellants sent to the Respondents' counting- 
 house the following order, 
 
 « Quebec, 15 th December, 1817. 
 
 " Messrs. Woolsey, Stewart & Co. 
 
 " Gentlemen, 
 
 " Pleas-e to deliver one hundred and eij^hty-one barrels of fine flour, 
 " being the cpiantity purchased of that description, on the 2 Ith November 
 *' last, and oblige 
 
 Your obedient servants, 
 
 J. Jones, Jr. & Co." 
 
 In consequence of this order, 181 barrels of flour, which the Respondents 
 called y///ej?0M/', were immediately rolled out of tl>e Respondents' Stores, 
 upon the Queen's Wharf. The Appellants perceiving, that a considerable 
 portion thereof did not answer the description of fine flour, caused the 
 same to be examined by three master Bakers, who reported, that one-sixth 
 of the quantity examined by them, was damaged and unsound. The 
 Appellants accordingly transmitted the report of the Bakers to the Respon- 
 <lents, and refused to receive the flour, unless the Respondents would submit 
 it to a second inspection. The Respondents, well aware that the result of an 
 inspection would be unfavorable to their claims, refused to accede to the de- 
 mand of the Appellants. 
 
 To enable tlie Court below, duly to appreciate the grounds upon which 
 tins refusal proceeded, the Appellants deemed it proper to lay before the 
 Court evidence of the mercantile ijsage, in Sales like the one in question. 
 
 Two merchants, Mr. Patterson and Mr. Munro, were examin- 
 ed. From their testimony, and that of Mr. Finlay, it appears that 
 there is a difference in price of from one to two dollars per barrel, be- 
 tween ^^ne^owr and fme sour jlour, and that in commercial language, fine 
 flour, means fine flour which has been inspected, and is merchantable ; 
 and that flour which the millers axWJi tie flour, is by merchants denominated 
 rejected flour, when it ceases to be sound and merchantable. The Appel- 
 lants apprehend that due weight was not given in the Court below to this 
 evidence. 'Joupling it with the other evidence, the Appellants conceived 
 that ihey had completely made out their defence. 
 
 The Respondents had engaged to deli\er to the Appellants a quantity 
 of fine merchantable flour, and another quantity of fine unmerchantable 
 flour. The latter the Appellants examined, because they were boimd to 
 take it such as it was : the former they did not look at, because the en- 
 gagement of the Respondents could only be fulfilled by the delivery of fine 
 merchantable flour. No delivery was demanded, or offered, until the I5th 
 of December. Injury could not be suffered by either of the parties by the 
 delay from the 24th of November to the 15lh of December. The damaged 
 state of the flour arose, no doubt, from hot weather ; and in this climate, 
 little apprehensions were to be felt from excessive heat, in those months. 
 
 The contract remained then, unfulfilled on the 15th of December; and 
 when the Appellants claimed the fine merchantable flour, which the Res- 
 
 pondeius 
 
jjondonts find ciiffnii-cd to deliver, tlicy wow offered line mmerchauhihk 
 Hour. An msi.ectiou was demimded by the Appellants, and refuseil by il,c 
 Respondents. • 1 1 i '^ 
 
 On the I6lh of December, tbo Respondents, l)y llioir Troiest of I'lat 
 date, s.nnn.oned (he Appellants " immediately to carry awav and take oil' 
 " or cause to be carried away and iaken off from the Stores and wl.arvesof 
 " JMcssrs. Woolsey, Stewart & Co. tlie (piantity of ()n(> hundred and eJohlv- 
 
 one barrels of fnw flour, two barrels of middlin- flour, and three Imnd.v.l 
 
 barrels ot rejected flour." Thereby declaring- to the said 
 
 Messrs. John Jones, jumor, & Co. that they, the said Messrs. Woolsey, 
 htewart & ( o. do not m any manner consider tliemseUes responsible for 
 the said (luanlity of IS.'J barrels of flour, of Ihc qmililu's aI)ove.descri!)ed, 
 «c. lo this summons the Appellants miswered, "Our reason Ibr not 
 ;; r^f ^'^'•"S; ^''f '"">. ^^^ ''^v^' tins day furnished to Messrs. AN o..l.sey, 
 
 Stewart vV Co. Ihe Certificate of three persons, who say part of Hje 
 ^^ Hour IS unsound. The rejecledand line bein/v all bought at the samr- time, 
 ^^ and forming- one bargain, we decline receiving- the ivjecled Avilhont die 
 * hue, as Ihe rejected vye required only in the event of oeltiij'- liie tine 
 " being- required to work up together." ' 
 
 The fact stated in this answer, of the necessity of havln<v the fine fio-jr 
 for the purpose of working- up the rejected fl(mr, is conhiMVed ]>y I'lc ^es- 
 tiniony of Mr. Camjjbell, and other witnesses in the Cause It serves to 
 account for the refusal of the Appellants, on a subsequent occasion, to lake 
 any partial delivery. 
 
 On the .SOth of the same month of December, when the Apnellanls had 
 reason to licheve that the Respondents had abandt.ned th<> chimcriciu pro- 
 ject ot compelling- them to receive damaged for sound flour, a ncv ve'bal 
 notice was given by tiie Respondents to the Appellants, t(i ome and lalvo 
 away the flour in question. A Protest (No. 23 of record) was imn-di- 
 ately served by the Appellants, upon the Respondents. The Respoiulenls 
 persisted in placing- the flour on their wharf; and on th.- Isl of .Jan-mrv 
 1818, the Appellants wrote lo the RespondenLs Ihefollowini.'- letter : 
 
 
 Queber, 1 si Jan. 1818. 
 
 " Messrs. Woolsey, Stewart & Co. 
 " Gentlemen, 
 
 ^ " \ou hiwe mlormed us, that the flour which is now turned out on 
 vnur wharl, is liiesamc which you helijre oflered us, and which a survey 
 
 ^'* tht;n held (hereon, d:>clared to be defective, ^^c have now to request 
 
 !! >'"'' to take such courses as ycm deem proper Cg-iving' us immediate noiicc 
 thereof) to the end that a survey conformable to law, be held on the -aid 
 
 " flour, and m the event of its being- of the qualitv sold us, that we mav 
 remove it to uur own Stores immediately." 
 
 AV'e are, &c. 
 
 This letter produced no effect, and the /ippellanls perceiving- that the 
 Kespondents were determined not to exj)ose their flour lo a survey, wrote 
 on the 3rd ot thesame month., Ihe foIlowini>- letter: 
 
 Quebec, 
 
i 
 
 " Quebec, 3rd January, 1818. 
 " Mc«srs. Wouli^ey, Stewart & Co. 
 *• Geulleinen, 
 
 " As we before informed yo\i, rejected flour was of no use to us w itli- 
 " out the complement of fine ; and as you have tliought proper not to 
 •' deliver the flour in question, agreeable to contract, we shall avail our- 
 " selves of our protest, having provided ourselves with flour elsewhere." 
 
 We are, &c. 
 
 The merits of the incidental demand being the same as thosp of the de- 
 mand in chief, it will be unnecessary to enter into details respecting it. 
 
 The parties were heard on both demands (absentibus the Chief Justice, 
 and Mr. Justice Kerr) and the Court below, on the day of 
 
 181 pronounced judgment in the Cause, condeming the Appellants to 
 pay to the Respondents the sum of ^£1325 pour vuleur en fleur S( 
 farine, tel que porte dans la declaration flee en cette Cause. 
 
 It is not the least remarkable feature in the cause that the valud of the 
 flour, &c. stated in the declaration filed in the cause was not £1335 but 
 £1309, of which last sum £252 had been paid into court and received by 
 the Respondents, so that by this judgment the Respondents would be enti- 
 tled to receive from the Appellants two hundred and sixty-eight pounds 
 more than they themselves state the value of the flour to have been. 
 
 By the same judgment the incidental demand was dismissed. 
 
 From the judgment, as well upon the demand in chief as upon the inci- 
 dental demand, this appeal is brought. 
 
 Quebec, 20th July, 1819.