1867. LOWE V. tract was to purchase "about 300 quarters of rye, more The or less, shipped on board the Anna Elizabeth.' and another ship brought 345 quarters; and the question being JOSEPHSON Whether the plaintiffs were bound to take this quantity, and another. Littledale, J., says, "There is nothing to show that a contract for a whole cargo was intended" (implying that if he had thought it had been a cargo of that kind, there would not have been a breach): and Parke, J., and Patteson, J., seem to have thought that if it had been a contract for the cargo, the excess would have been immaterial, or covered by the words more or less; but that as that was not clear, and as it lay upon the sellers (the defendants) to establish that the larger quantity was contemplated by the contract, the plaintiffs were not bound to take delivery of the larger quantity. Here, however, there is no ambiguity on that point. The subject matter of the sale was clearly the cattle remaining on the Mole Station, and branded EL, and the other terms of the agreement support this construction. When these cattle were tendered, the defendants did not refuse to accept them. The case comes within the maxim, falsa demonstratio non nocet. The ambiguous addition does not vitiate the adequate and sufficient definition; Llewellyn v. Earl of Jersey (a). The contract was for a herd which was represented to be 2000, more or less; and when the defendants discovered that there was not that number, they should have abandoned the contract, or they should have accepted the herd as consisting of 1054. [Stephen, C.J. I do not see how the defendants could help themselves. The delivery was to be in two lots; and they could not tell whether the deficiency in the first lot might not be made up by the second.] The defendants might have sold the cattle and recovered on an action for a false representation. [Stephen, C.J. A representation made pending the contract, provided the contract does not exclude it by its terms, is a warranty, and must be fulfilled; but in order to constitute a false representation, it is necessary to show a scienter.] It is submitted that the (a) 11 M. & W. 189. 1867. LOWE V. and another. defendants (the vendees) might possibly have had an action for breach of warranty, that there were two thousand cattle in the herd; or, for a false representation, and another that there were that quantity. But the only purchase JOSEPHSON was of the herd so represented or warranted. But the plea of non-delivery of the 2000, is not equivalent to a plea of breach of warranty. The 1050 cattle having been delivered, there is a simple debt between the parties, which can be recovered under the common count; Stone v. Rogers (a). On the question of interest, Farr v. Ward (b), Slack v. Lowell (c), and Davis v. Smyth (d) were cited. contra. The Attorney General and Butler, for the defendants, Unless the words, "2000, more or less," be rejected, a meaning must be assigned to them. But what can they mean, if not that the herd sold and bought was 2000 (inore or less) in fact? A representation embodied in a contract is part of it; Behn v. Burness (e). In delivering the judgment of the Court of Error, Williams, J., says, "A question may arise whether a descriptive statement in a written instrument is a mere representation, or whether it is a substantive part of the contract. If the Court should come to the conclusion that such a statement by one party was intended to be a substantive part of this contract, and not a mere representation, the often discussed question may be raised, whether this part of the contract is a condition precedent, or only an independent agreement—a breach of which will not justify a repudiation of the contract, but can only be a cause of action for compensation in damages." He then continues, "But with respect to statements in a contract, descriptive of the subject matter of it, or of some material incident thereof, the true doctrine established by principle, as well as by authority, appears to be, generally speaking, that if such descriptive statement was intended to be a substantive part of the contract, it is to be regarded as a warranty (a) 2 M. & W. 448. (b) 3 M. & W. 25. (e) 3 B. & S. 751; 32 L. J. Q. B. 204. 1867. LOWE and another V. and another. that is to say, a condition, on the failure or nonperformance of which, the other party may, if he be so minded, repudiate the contract in toto, and so be relieved from JOSEPHSON performing his part of it, provided it has not been partially executed in his favour. If, indeed, he has received the whole, or any substantial part, of the consideration for the promise on his part, the warranty loses the character of a condition, or, to speak more properly, perhaps, ceases to be available as a condition, and becomes a warranty in the narrow sense of the word, namely, a stipulation by way of agreement, for the breach of which a compensation must be sought in damages." In this case, the words "2000, more or less" are clearly a statement in the contract, descriptive of the subject matter of the contract, and amount, therefore, to a warranty. For breach of this warranty, even assuming that the contract has been partially executed, the defendants are, at all events, clearly entitled to compensation. By delivering only 1054, the plaintiffs have broken their contract. But, if so, the "final" or last delivery of the cattle has never arrived. It follows, that the plaintiffs cannot be entitled to interest. They can only get interest on the ground that they were entitled to a promissory note. That promissory note, however, was only to be given on the final delivery, and to bear interest from that date; Gordon v. Swan (a), Fruhling v. Schroeder (b). And for the deficient delivery, the defendants were entitled to damages for the loss of profit. [Stephen, C. J. This loss has been calculated contingently by the jury, and the amount of interest is stated. So that the Court can deduct the latter, and add the former according to their view of the law.] The defendants bought 2000 head or thereabouts, and all which follows is matter of description of those 2000, nothing more. On this point Bourne v. Seymour (c) was cited. [Stephen, C. J., referred to Brady v. Cohen (d).] STEPHEN, C.J. Looking at all the terms of the contract, and so construing it that every portion may speak, (a) 2 Camp. 429. (c) 24 L. J. C. P. 202. (b) 2 B. N. C. 77. (d) May, 1865. 1867. LOWE V. JOSEPHSON and another. the sale and purchase of cattle here was of the entire herd then running at the Mole Station; but which herd the plaintiffs represented and warranted were in number and another about 2000. To that extent the defendants were bound to take the herd (all calves not being counted, and all old and crippled cows to be rejected), and if much in excess or deficiency of the stated number, the defendant could either treat the contract as wholly broken, or, retaining the number delivered, if any, might bring their action on the warranty, and recover any damage thereby sustained. If the purchase was not of the entire herd, the expressions in the contract respecting the "throwing out" and "giving in" of certain individuals of that herd, could have no meaning. But, on the other hand, the words" 2000 head" are not to be rejected; and effect is given to them by the construction here adopted. If, therefore, the 1054 head delivered constituted the entire herd, rejecting old and decrepid cows and diseased cattle (which the jury must be taken to have found), there has been a perfect delivery under the contract. But the deficiency has been so large, that the warranty as to the numbers has been broken; and the defendants' remedy was and is by a cross-action, or plea in the nature of one, insisting on that breach. This, however, the defendants have not done. Their plea on the record is, that the delivery has not been perfected; and they have contended, therefore, that they are not liable for interest, nor even for the price of the cattle, because the day of payment had never arrived, by reason of there having been no "final" delivery. That plea, consequently, must be amended (and we think we have the power to amend, although after verdict), or the defendants cannot recover the damages contingently assessed by the jury. On the terms that they shall not get the costs of the issue on that plea, we allow such plea to be amended by making it rely on the breach of warranty; and then the verdict will stand for the defendants on the cross-action issue, with the damages so assessed to be deducted from the plaintiffs' damages on the issue of never indebted. Those damages will be the amount of the price of the cattle 1867. LOWE and another V. JOSEPHSON and another. delivered and accepted by the defendants, together with interest as next mentioned. We are of opinion that such interest is not due on the £500-the cash payment stipulated for by the contract. The interest will be only on the balance of that price, which was payable with interest from the last day of delivery. The words "more or less" must be understood to mean, merely, that neither party was to be tied down to the exact number of 2000, but that, as in Brady v. Cohen, a slight excess or deficiency over or less than 2000 was not to affect the contract. CHEEKE, J., Concurred. FAUCETT, J. Effect must be given to every word of the agreement, and I think that is done by considering the contract to contain a warranty, that the herd should consist of 2000 head, more or less. The words, "bred on the Mole Station, &c.," would otherwise. have no effect given to them, if the contract is considered to be one merely for 2000 cattle. The plea, as it is, treats the non-delivery as a breach of contract, not as a breach of warranty; but it can, even at the present stage of the proceedings, be amended so as to raise the real question between these parties. If the plaintiffs have fulfilled their contract by delivering the whole herd, they are not in fault, and are entitled to interest from the date when the promissory note for the balance ought to have been given. They are not entitled to interest on the £500. Rule discharged accordingly. |