66

and that price be unascertained, the property will not pass; but if it can be gathered from the circumstances that the intention was that the property should pass at the time of the bargain, what reason is there for saying that it shall not? The case is plainly distinguishable from Simmons v. Swift (1). Here, the price is agreed on between the parties provisionally on their estimate of the quantity the "fillings" contain, and how can it be said, after the estimated price has been paid at prompt," that because the exact sum has to be afterwards ascertained, the property is to remain in the seller, and not to be transferred to the buyer? Then there is the further circumstance which appears to me of importance in this case, bringing it clearly within Castle v. Playford (11), the recent case in the Exchequer Chamber, viz., that by the express terms of this contract the goods while they remained in the custody of the sellers during the two months were to be at their risk. As I pointed out in the course of the argument, what would be the object of such a stipulation, that the goods should be at their risk during the two months, if the property still remained in them ? Moreover, by the course of dealing, at the expiration of the two months notice is given to the buyer which the buyer accepts, and which notice in the course of the present dealing the defendant had invariably accepted without objection, that at the expiration of the two months the goods were to stand at his risk. That brings the case at once within Castle v. Playford (11), and shews that after that time, at all events, the property in the goods was intended to be by common consent in the defendant. I think, therefore, under all the circumstances of the case, it would be impossible to doubt that by the true intention of the parties, as well as in contemplation of law, the property was in the buyer and not in the seller at the time of the fire, and therefore the thing having perished, perishes to the dominus, that is, to the buyer.

On the second question, as to whether the goods destroyed by fire having been

(11) 41 Law J. Rep. (N.s.) Exch. 44.

covered by insurance, and the plaintiffs having received money on the policies, the defendant is entitled to have the amount of the insurance on this sugar to set off against the price? I think he is not. In the first place it is perfectly clear that, at least after the expiration of the two months (I say nothing about what took place before) the plaintiffs were not bound by any agreement, express or implied, to keep up an insurance on these goods against fire. Now, suppose, being under no agreement to effect an insurance, and no consideration having been given them for effecting it, they had effected an insurance upon goods not their own, would they be bound to hand over the proceeds to the party whose goods were insured? I doubt extremely whether they would, but it is not necessary to decide the point. No doubt if they had received an amount of the insurance covering the goods, they would receive it or keep it wrongfully against some one; but, in my view, the wrongful detention of any of the money so received would be as against the insurance company, because it is perfectly clear that the contract of insurance against loss by fire is a contract of indemnity. If the parties have lost nothing they can receive nothing. But it is not necessary to decide this, because it is evident, on all the facts of the case, that the plaintiffs insured solely for their own purposes, and not with any view of protecting the defendant. They are bound to keep the goods at their risk for two months, and would naturally cover their risk by an insurance co-extensive with that period. The insurance once effected, it would be impossible so to adjust the in-. surances, which are floating policies, to the particular period of two months during which the sugar remains at the risk of the seller, and the period beyond the two months during which it remained in their custody. But I take it that this point has its origin in the notion, which the arbitrator does not confirm, that there was a liability on the part of the seller to made good any loss by fire which might occur during the whole period the goods were in the custody of the plaintiffs. I think that in all probability it was with a view to the risk that they might run of

having such a question decided against them, that the sellers were in the habit of having these floating assurances upon the goods on their premises. I have no doubt that the insurance was intended for their own protection, and not for that of others, but although the policies covered all the goods on the premises, yet as they have not received from the company an amount sufficient to cover their own loss they were not bound to apportion the proceeds of the insurance so as to satisfy the loss of somebody else against which they were not bound to insure. Consequently they were entitled to apply the whole sum received under the policy to indemnify themselves for the loss which they themselves had sustained, and were not bound either in law, or in equity, or morally to apply any portion of it for the benefit of the defendant. I think, on the grounds I have stated, that the defences set up have failed, and that our judgment should be for the plaintiffs.

BLACKBURN, J.-I am also of opinion that our judgment must be in favour of the plaintiffs. The case arises in this way. There was a considerable quantity of sugar which had undoubtedly at one time been the property of the plaintiffs, who were refiners, and with respect to which they had made four contracts. Each of the contracts is exactly similar in all the circumstances except the dates, and the date happens to make no difference. I will therefore confine myself to one of the contracts. [The learned Judge read the contract as set out in paragraph 20 of the Case.] Now the whole number of the titlers which had been in the filling are defined in this contract; so that this contract applies to the particular titlers then lying on the refiners' premises, which were sold at so much per hundred weight. Then there is this term in the contract, "prompt one month, stove goods" (which these goods are) "at seller's risk for two months." Now the fact is, as it appears, that here, as is evident by the terms of the contract, the buyer has a right to have his titlers kept at the seller's risk for two months; but in practice the refiners, not wishing to offend their customers, do not

force them to accept in strict compliance with the contract. They are in the habit of sending them a note at the end of two months to remind them that the goods are lying there at their risk, and to request them to take them away and no longer to encumber their warehouse, but they are not in the habit of forcing them to take them away. There are several things in the case to shew that at times the plaintiffs grumbled and threatened to charge rent, which shews clearly enough that, although they would not offend thefr customers by forcing them, they do not wish them to keep the goods there over the two months. This might become material upon the question of insurance; but the important point, in the first partof the case, is, with reference to the risk. Now as a part of the goods mentioned in this contract did remain after the two months, and by an accidental fire were all destroyed, the first question raised on the part of the defendant is this: He says that the property had not passed, and he draws the conclusion from that, that he is not to pay for any part of these goods, and though there has been an interim payment, yet the plaintiffs have very properly agreed that the question shall be raised whether he was liable to pay for these titlers which have been sold, and which, remaining in the warehouse after the expiration of the two months, have perished. The reason why they were not weighed, we find from the prac tice, is, that it would be troublesome to weigh them on the prompt day in order to ascertain the precise price, and as they know pretty well what the price will be, they make an approximate payment then, and when the goods are actually taken away they are weighed, and it is ascertained what the precise price is, and whether the approximate payment is correct. I suppose in general the refiners will take care that it is not quite equal to the whole price, and then they have a lien upon the goods, so that they would be quite safe, and in that case some small additional payment would have to be made. In the other case, if the approximate price is too great, the refiners would undoubtedly be obliged to return a part of the price, as being a price which had

The

been received without consideration. difficulty which is raised here is that these goods had perished before they were actually weighed. Two points were raised by Mr. Brown; first, he contended that because they had not been weighed the property had not passed, and it therefore followed, as an inexorable rule of law, that they were not to be paid for, because they were still the property of the plaintiff's.

Now I do not think that is the correct way of putting the case, and I do not think that we need decide whether the property passed or not. As a general rule res perit domino is both the old civil law maxim, and a general rule of our law, and when you can shew that the property passed, the risk of the loss prima facie is in the person in whom the property is. If, on the other hand, you go beyond that, and shew that the risk attached to the one person or the other, it is a very strong argument for shewing that the property was meant to be in him. But the two are not inseparable. It may very well be that the property shall be in one and the risk in another. That may be a question which we may have to decide in some other case, but in the present case I think all that is necessary to decide is that the risk here is not in the sellers. When the first month had elapsed, and payment had been made, still the buyers had, from their express stipulation, a right to have the goods remain a month at the refiners' warehouse at the refiners' risk. Let us suppose that the refiners had become bankrupt; if then the risk was in the refiners, which by this stipulation it. clearly would be during the two months, the assignees would take the entire property, and the buyers who had paid the approximate price would be obliged to come in and prove, and get so many shillings in the pound as they might be able to prove for. That would be a monstrous hardship, and in such a case as that I should be very much inclined to struggle very hard to find any legal reason for saying that at the expiration of that time the goods were to be at the buyer's risk. I think expressio unius est exclusio alterius; I cannot construe the stipulation except as saying that at the expiration of the two

months the goods are to be at the buyer's risk. That would be greatly fortified, if it required fortification, by the fact that at the end of the two months the sellers did send a note to remind the buyer that they were at his risk, and this being a stipulation between two parties, who are both sui juris, that the goods are to be at the buyer's risk after the two months. Is that to be effectual at law? Mr. Brown's argument was that the property had not passed to the buyers. I have already intimated that if it were necessary I should consider very long before I agreed to that. However, assume that it was so. If the agrement between the parties is "I contract that when you pay the price I will deliver the goods to you, but the property shall not be yours, they shall still be my property so that I may have dominion over them, but though they shall not be yours, I stipulate and agree that if I keep them beyond the month the risk shall be upon you," and then the goods perish, to say that the buyer could then set up this defence and say, "Although I stipulated that the risk should be mine, yet inasmuch as an accident has happened which has destroyed them, I will have no part of that risk, but will throw it entirely upon you," is a proposition which, stated in that way, appears to be obviously a reductio ad absurdum. If the parties have stipulated that if after the two months they remain in the seller's warehouse, they shall nevertheless remain there at the buyer's risk, to say that the property having passed they are there at the seller's risk, I think would be a manifest absurdity, and I think the case of Castle v. Playford (11) is a clear authority that where the parties have stipulated that the risk shall be on one side, it matters not whether the property has passed or not. However, it is not material to decide the quantity of property. If the parties have by their express stipulation said the goods shall be at the risk of the buyer, it is the buyer who must bear the loss.

Then Mr. Brown said, "But how can the buyer pay when he was to pay at 478. per hundred weight and the goods have never been weighed, and therefore it could never have been known with certain precision how many hundred weights there

were?" I answer to that in the first place, that it is concluded by the authority of Furley v. Bates (2), and the recent case of Castle v. Playford (11) in the Exchequer Chamber, in which all the judges say that when the price is not ascertained, and cannot be ascertained with precision in consequence of the thing perishing, nevertheless you may recover, if the risk is clearly thrown upon the purchaser, ascertaining the amount as nearly as you can. There is no difficulty here in ascertaining it, and the arbitrator has found there is no difficulty, and the consequence is that there is no objection upon that ground to the plaintiff's recovering what as nearly as ean be proved is the price, which if the goods had been weighed would have been ascertained.

There is another reason which in this case would clearly apply. The delay in weighing is quite as much that of the purchaser as the seller. When the prompt day comes the seller has a right to require that they should weigh them at that moment, ascertain the price, and pay it to the last farthing. It is solely and entirely at the request and for the convenience of the buyer, or perhaps the mutual convenience of both, but still it is the buyer who requests that, as he is going to leave the goods longer, the weighing should be postponed for a time. Therefore, it is in consequence of this delay that the weighing does not take place. Now, by the civil law, it always was considered that if there was no weighing or anything of the sort which prevented it being perfecta emptio, whenever that was occasioned by one of the parties being in mora, and it was his default, the civil law said that though the emptio is not perfecta, yet if it is clearly shewn that the party was in mora, he shall have the risk just as if it was perfecta. That is perfectly good sense and justice, and I do not think it is necessary to decide the question that when the weighing is delayed in consequence of the interference of the buyer so that the property does not pass, and there is no express stipulation about risk, yet, because the non-completion of the bargain and sale which would absolutely transfer the property is owing to the delay of the purchaser, the purchaser shall bear the risk

just as much as if the property had passed. The inclination of my opinion is that the property is in him, but we need not decide that at all to-day; and it might require some consideration to see how far the case of Simmons v. Swift (1) really governs the case. This is my answer to the first question which the arbitrator has asked.

Then there is another point which goes to the reduction of the damages. The defendant contends that, under the particular circumstances of the case, he is entitled to have 5401. allowed to him in consequence of there being an insurance upon these goods kept up by the sellers, under which they did recover a very large sum in consequence of the fire; and the defendant's contention is that they are bound to give him an aliquot part of the insurance, and the arbitrator has found that would amount to the sum of 540l., which would seriously reduce the amount of the plaintiffs' claim.

On

I do not think that the defendant has made out his right to any part of this insurance money. In the first place it is argued that under the form of the policy, which is a floating policy kept up by the refiners to cover all their goods, which has on the back of it these words-" This policy is now declared to cover stock, the property of the assured, and including goods sold and paid for, but not delivered, on the premises within mentioned," the insurance company were bound to pay for goods which were on the premises, which had been paid for, and were not at the risk of the refiners, and that the contract of insurance covered such goods. that point I have not thought it necessary to make up my mind. It may be that the insurance is such, as in The London and North Western Railway Company v. Glyn (7), that the insurance company might be bound to pay for the goods in which the assured have no interest at all. It may also be, as in The North British Insurance Company v. Moffatt (5), that the policy may be so worded that the assured are not entitled to recover, and the company are not bound to pay except for goods which are the property of the assured. I will assume in favour of the defendant that the terms of the policies are such that if the policies had covered not only

the loss upon the refiners' own goods, and goods lying for two months at their risk, but were also sufficient to cover the goods delayed beyond that period, the insurers would be bound to pay the plaintiff the whole amount applicable to his goods. Taking this for granted, Mr. Brown rests his argument on the statement in paragraph 16 as to the custom to keep up the floating policies. Now, in the first place, it is obvious that the refiners have a great interest in keeping up the policies to this extent, not only on their own goods, but also on the goods sold and paid for, but which lie there after the two months at their risk, and therefore the floating policy may have been so worded that it would enable them to cover all such goods on their premises. Yet if they recovered the full amount it would be a kind of accident which would arise from the amount of the insurance being larger than the loss. But that has not happened here, the amount paid by the insurance office has not even met the plaintiffs' own loss. It is contended that there was an implied undertaking, and that it was part of the bargain between the parties that the refiners should keep up the policies for the benefit of their customers, and, if that were so, I should be inclined to think it would follow that they ought to apply an aliquot part of the amount recovered for the benefit of the persons with whom they made that arrangement. I should think that in a case where it was shewn that where a warehouseman kept up large and extensive floating policies on goods in his hands and let it be known generally that he was doing so to induce people to come to him more readily, a jury might properly find that it was part of the understood bargain that when they came there, they should have the benefit of the insurances. In the present case, however, I can draw no such conclusion at all. So far from the plaintiffs wishing the goods to stay, they actually pray that the goods may be taken away after the two months. I do not think the customer had any right to suppose that the plaintiffs encouraged their customers to leave the goods after the regular period on the premises, and, in consequence, I am of

opinion that there is no obligation upon the plaintiffs to apply an aliquot part of the insurance money to the payment of the loss.

It was further argued that if the plaintiffs had happened to find that they had been paying premiums to the insurance company which would entitle them to receive a sum sufficient to cover the defendant's goods, though not their own, and actually got the money, the sum would be received in trust for, and they would hold it for, the benefit of the defendant. Upon that I will not express an opinion, as the question does not arise here, for, in point of fact, the plaintiffs, though they sent in a claim to the insurance company for all goods on their premises, without distinguishing which were over two months and which were under, did not receive a farthing more than the money necessary to cover the loss of their own goods, and it cannot be said that because if they had received more they would have to give it to the defendant they are bound to apply some of their own money which they have recovered, as certified by the arbitrator, for the benefit of the defendant. I should think this contrary to justice and law, and therefore I think the damages should not be reduced, and the verdict should stand for the plaintiffs for the larger

amount.

LUSH, J.-I am also of opinion that defendant is liable to pay for the value of these goods destroyed by fire. The first question is, at whose risk were the goods at the time of the fire? At the risk of the seller or at the risk of the buyer? Now where goods are sold, and there is no express stipulation in the contract to the contrary, the risk follows the property, and in order to determine the risk we have to ascertain in whom the property was vested at that time, and it is settled by decisions that the question is one of intention, to be gathered from the terms of the contract. Now, if that were the question here, I should have no hesitation in inferring from this contract that the parties intended that the property should vest in the buyer at the time of the sale. If they so agreed, it would vest, although