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All othar original copias ara filmad baginning on tha first paga with a printad or illuatratad impraa- sion, and adding on tha laat paga with a printad or illuatratad impraaaion. Tha laat racordad frama on aach microfiche shall contain tha symbol — »> (moaning "CON- TINUED"), or tha symbol V (moaning "END"), whichavar applias. Laa imagaa suivantas ont AtA raproduitaa avac ia plus grand soin, compta tanu da la condition at da la nattatA da I'axamplaira filmA. at an conformitA avac las conditions du contrat da filmaga. Laa axampla♦* s ^ ^ fn V. --s « .^ r^/^/>««^ IXnVER-CANADA .1 In a Cause between DANIEL AVER, (PhnnliJ in th( Court helow,^ Appellant, JAMES M'DOUALL, and JOHN GOUDIEj (Defendants in the Court below,) Respondents. AND 'Case 6f The Respondents, XN the year 1815, the nbove named Respoiidents having conlvactcd with his Majesty's Government for the Iniilding of Friptes, and other armed Vessels, to navigate Lake Champlain, entered into a number oC contracts with lumber dealers, for the obtaining of a large quantity ol timber of various descriptions to enable them to accomplish their engage- menls.— Amongst others, they contracted by written articles of agreement, bearing date the 1st February 1815, with the present Appellant, " Ibr « the delivery bv him, unto them, at St. John's, into a yard to be pointed « out by the Respondents, on the upper side of thd garrison, or l(»\-.'er " side, or in the garrir^on^ at tlieiv option, of 10,000 feet While Oak " I'inlber, 5000 feet White Elm Timber, and ten thousand fi^et of « White Pine Timber ; to be sound, good, and fit for the jjurposc ofhiiild- " ing Frigates, Ships, and Gun-boats, on Lake Champlain ; and to he " such Timber as should be approved by Mr. John Gill, as proper for " that purpose, or any person he might appoint for the purpose of inspect- « irig and measuring the said Timber, to be flatted or squaredj and to " be delivered in the following manner : that is to say, 10,000 feet in the '■ yard appointed by the 25th February 1815, and the remainder of the « whole quantity of 25,000 fcet^ on or before the first day of May (then) " next, at the rate of two shillings per cubic foot for the Oak and Elm « Timber, and one shilling for the Pine Timber."— To enable the Appel- lant the better to fulfil his engagemcht, the Respondents engaged to pay "the probable amovmt of Timber hauled out each two weeks, until he « should be paid £1000, and the balance wlien the deiivcry siiouUl be «* completed, on the 1st May 1815." ^ . Ko.\5 of Record. John Gill, the person named in the contract, was the person who in- spected all the Timber used in the building of Vessels for His Majesty's^' Service on Lake Champlain. In the course of the winter 1815, a quantity of Elm, Oak and Pine Timber was brought by the Appellant to the fort of St. John's, and de- posited on the South side of tliat fort. Moneys were advanced from time to time under the above clause of the contract, to the amount of £750 Oj as follows :— No. 7. lOth February 18 15 £250 No. 12. I8th February 1815 250 No. 8. 25th February 1815, by Scofield 200 No. 9. 2dJunel815 50 T»i -i__i_ i*. :_i ^1 :.. ^e ..,:^t,^%. ^f\ O jDiaU&CUi iUiiliSiiCU ill CUUiSC VI ^viiiicl ........ "" - - 147030 AC' .--• ■ or three times, and examined it stick by stick as they went « along, alter which the said John Gill declared the whole of the Oak « and Elm, with the exception of a few sticks, and some part of the Pme « to be wholly unfit for the purpose of building Vessels for the Govern- " ment and not conformable to tlic c(mtract between the said parties ;" and " condemned the whole of the said Timber as being unfit for buildmg « Frigates, Ships, and Gun-boats, on Lake Champlain; some of it being " too small, some of it not sound, and some of it not bemg of theqiialiiy « specified in the contract." (Deponitiou of Dent, No. 56 of Record.) It was pretended by the Appellant, in the Court below, that Gill had an interest in the Respondents' contract. But no evidence was offered to this effect in the Court below— it is contradicted by one of the Respon- dents upon his oath— and the opinion of Gill, as to the quality ot the Timber is confirmed by Dent, and by a number of other witnesses exa- mined in the c^use.— To have ascertained whether the limber was sound or otherwise, it would have been necessary to examine both sides, and to cut off the ends ; but its deficiency in the requisite size was appa- rent to the eye, and Mr. Gill therefore did not deem it necessary to exa- mine both sides, nor to cut oft' the ends. After condemning the Timber John Gill went away, and Millard, who acted as the agentof the Appellant, proposed to James M'Douali, one ot the Respondents, " that the said Timber, Oak, Elm and Pine, should be « measured by Dent, good And bad ai it lay, and that he, the said James *' M'Douall, should pay one shiUing per foot for the wliole of the said « Timber, Oak, Elm and Pine included ; and that if, upon the arrival of « the Plaintiff, (Appellant) who was not then at St. John's, he should "notapprove of the said Timber being measured by Dent, at the rate ot "oneshilUng per foot, it should be measured and culled by a sworn '* culler, and that part of it which should be found merchantable would « go on account of the contract existing between them ;" to all which the said James M'Douall agreed. Dent accordingly proceeded, in the presence of Millard and Mr. M'Douall, to measure, and at the request of Mr. MDouall marked it with the broad arrow; Mr. M'Douall stating to him « that it would be « safer for him, and that the said mark would prevent the people from " taking it away." « Dent was about five days in measuring the timber, and « after the se( ond day the said Daniel Ayer arrived and came with the said Millard to the place where he (Dent) was measuring the said tim- ber, and asked him, Dent, how he was getting on in measuring the timber," and « during the greater part of the remaining three days the said Daniel Ayer, together with the said Millard, were present at the measurement of the said timber by Dent, coming and gmng oc- casionally. N9. 56 of record.", ^ it tt (f et (( tt tt Upoinneasurin^h^hoRnii^nn^^ Upon 12,770 16,137 3,101 ft. do. do. Pine, Oak, Elm, 32,008 at U. Deduct Paid £1600 88. i?800 0^ £800 8«. After the Respondents made the necessary arrangements for Ihe build- ing of a fleet upon Lake Champlain, PpdCe was concluded between hTs Majesty's Government and the United Stales of Au)crica. The building of th6 fleet was countermandedj and, to indemnify the Respond- ents for the expences which they had incurred. Government agreed to take off their hands, at a liberal price, the large collection of materials which they Imd made. And the lot of timber in question was accord- ingly delivereid over by the Respondents to the proper officers of His Majesty, at St. John's. The arrangement made by the Respoiulcnls with His Majesty's Government was not concealed by them and easily reached the ears of the Appellant. The Appellant who had fuileil in the fulfilment of his contract and was liable to an action of damages on the part of the Respondents ; who after such failure had been pre- sent at the measurement of his timber in a way totally inconsistent witli the idea of its being received under the contract ; and to whom was offered, what is proved to have been the full value of the timber and what was considered to be so by a person acting as his agent ; con- ceived the strange idea of recovering from the Respondents the full amount of the contract price. To bring the claims of the Appellant to a speedy termination the Respondents consented to a reference to arbitration. And the award of the arbitrators not realizing the visionary hopes of the Appellant he brought his action against the Respondents. The declaration contains two Special counts, the first stating the con- tract to be a written contract, the second a contract by parole. These Special counts are followed by the common counts for goods sold and delivered, quantum valebant ; the money counts, and an account stated. The Respondent pleaded : 1. The general issue. 2. A plea of payment of all and every the sum and sums of money which were due and owing from the said James M'Douall, and John Goudie to the said Daniel Ayer. 3. The arbitration bond and award made in virtue thereof. A general Replication was filed by the Appellant to the plea of general issue. To the third plea the Appellant, 1 . Demurred, and pleaded, 2. Non est factum, to the Arbitiration bond. 3. A general answer. 4. No award made. 5. Illegality of award, by reason of misconduct in arbitrators in re- filsingto hear more than two witnesses on the part of the Appellant; in hearing Witnesses, who were not sworn; and in making their decision to depend upon the tossing up of a copper. - •'- 'I'lie causo weL% inscribed upon the iluU uf Enqueteti. The conliact was filed, as ulso various receipts and the arbitration bond and award. The Appellant and the Respondent James M'Douall were examined upon fails and articles. Sixteen Witnesses were examined on the part of the Appellant, and thirteen on the part of the Respondent. The Appellant did not succeed in proving the main averments in hia special counts, viz. that he did in the month of February, 1815, de- liver to the said Respondents 10,000 feet of timber of the description and quality specified in the before-mentioned contract, and that he did afterwards to wit, on or before the 1st day of May following, deliver and cause to be delivered to the said Respondents the remainder of the said whole quantity of 25,000 feet, also of the description and quality aforesaid. Upon the special counts he could not then recover. He could only recover upon a quantum valebant, and it is proved that 1*. per foot for the whole lot of the said timber was a high price. The Appellant would therefore be entitled to the above-mentioned sum of £800, but having pleaded an award of £870, and declared his readiness to pay that sum, the Court below couW not do otherwise than condenm him in that amount. The Judgment is accordingly for £870 with costs of suit. rbitration examined lant, and lis in his 1815, de- 38cription it he did g, deliver ler of the d quality is proved igh price. >ned sum ilared his wise than for £870