50. (1) Where the buyer wrongfully neglects or re- CHAP. 206 fuses to accept and pay for the goods, the seller may main- Action for tain an action against him for damages for non-acceptance. non-accept(2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract.

(3) Where there is an available market for the goods in question, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. 1910, c. 1, s. 50.

Remedies of the Buyer.

ance.

non-delivery.

51. (1) Where the seller wrongfully neglects or re- Action for fuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for nondelivery.

(2) The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events, from the seller's breach of contract.

(3) Where there is an available market for the goods in question, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver. 1910, c. 1, s. 51.

52. In any action for breach of contract to deliver Right to specific perspecific or ascertained goods, the court may, if it think formance. fit, on the application of the plaintiff, by its judgment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the court may seem just, and the application by the plaintiff may be made at any time before judgment or decree. 1910, c. 1, s. 52.

warranty.

53. (1) Where there is a breach of warranty by Remedy for the seller, or where the buyer elects, or is compelled to breach of treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods, but he may,—

(a) set up against the seller the breach of warranty, in diminution or extinction of the price, or

CHAP. 206

Interest and

special damages.

(b) maintain an action against the seller for damages for the breach of warranty.

(2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

(3) In the case of breach of warranty of quality, such such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.

(4) The fact that the buyer has set up the breach of warranty, in diminution or extinction of the price, does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage. 1910, c. 1, s. 53.

54. Nothing in this Chapter shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed. 1910, c. 1, s. 54.

PART VI.

SUPPLEMENTARY.

law may rebutted.

Implications of 55. Where any right, duty or liability would arise be under a contract of sale by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by usage, if the usage be such as to bind both parties to the contract. 1910, c. 1, s. 55.

Reasonable time a question of fact.

Remedies to be enforced by action.

Auction sales.

56. Where, by this Chapter, any reference is made to a reasonable time, the question what is a reasonable time is a question of fact. 1910, c. 1, s. 56.

57. Where any right, duty or liability is declared by this Chapter, it may, unless otherwise by this Chapter provided, be enforced by action. 1910, c. 1, s. 57. 58. In the case of sale by auction,

(a) where goods are put up for sale by auction in lots, each lot is prima facie deemed to be the subject of a separate contract of sale;

(b) a sale by action is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made, any bidder may retract his

bid;

(c) where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall

not be lawful for the seller to bid himself, or to employ CHAP. 207
any person to bid at such sale, or for the auctioneer
knowingly to take any bid from the seller or any such
person. Any sale contravening this rule may be
treated as fraudulent by the buyer;

(d) a sale by auction may be notified to be subject
to a reserved or upset price, and a right to bid may also
be reserved expressly by or on behalf of the seller;

(e) where a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction. 1910, c. 1, s. 58.

common law.

59. (1) The rules of the common law, including Saving of the law merchant, save in so far as they are inconsistent with the express provisions of this Chapter, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress or coercion, mistake, or other invalidating cause, shall continue to apply to contracts for the sale of goods.

(2) Nothing in this Chapter, or in any repeal effected Bills of sale. thereby, shall affect the enactments relating to bills of sale, or any enactment relating to the sale of goods which is not expressly repealed by Chapter 1 of the Acts of 1910.

(3) The provisions of this Chapter relating to contracts Mortgages, etc. of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge or other security. 1910, c. 1, s. 59.

CHAPTER 207.

OF BILLS OF LADING.

goods and

acquire rights.

1. Every consignee of goods named in a bill of lading Consignees of and every indorsee of a bill of lading to whom the property indorsees of in the goods therein mentioned passes upon or by reason of bills of lading to such consignment or indorsement, shall have transferred to and vested in him all rights of action and be subject to the same liabilities in respect to such goods as if the contract contained in the bill of lading had been made to himself. R. S., c. 148, s. 1.

to prejudice right of

transitu.

2. Nothing in this Chapter contained shall prejudice Not or affect any right of stoppage in transitu, or any right to stoppage in claim freight against the original shipper or owner, or any liability of the consignee or indorsee by reason of his being such consignee or indorsee, or of his receipt of the goods by reason or in consequence of such consignment or indorsement. R. S., c. 148, s. 2.

CHAP. 208

Bill of lading, when to be evidence of

signing same.

3. Every bill of lading in the hands of a consignee or indorsee for valuable consideration, representing goods to have been shipped on board a vessel or train, shall be conshipment clusive evidence of such shipment as against the master or against person other person signing the same, notwithstanding that such goods or some part thereof have not been so shipped, unless such holder of the bill of lading has actual notice at the time of receiving the same that the goods had not in fact been laden on board, or unless such bill of lading has a stipulation to the contrary; but the master or other person so signing may exonerate himself in respect to such misrepresentation by shewing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or of some person under whom the holder claims. R. S., c. 148, s. 3.

No liability to pay for newspapers, etc.,

because taken from postoffice.

Further exemption from liability.

CHAPTER 208.

OF SUBSCRIPTIONS TO NEWSPAPERS AND
OTHER PERIODICALS.

1. No person shall be liable to pay for any newspaper, or other periodical sent by post to such person, by reason of the fact that such person has taken such newspaper or other periodical so sent by post, from any post office or way office and kept the same. R. S., c. 149, s. 1.

2. No person shall be liable to pay for any newspaper, or other periodical for which such person has subscribed after the expiration of the year for which such person is a subscriber; or after the expiration of any current year, if such person before the end of such year notifies the publisher of the said newspaper, or other periodical, to discontinue sending such newspaper or other periodical. Notice of discontinuance may be given by mailing a registered letter, or by notice otherwise given, to the publisher of such newspaper, or other periodical. R. S., c. 149, s. 2.

SECTION XXI.] SUBSCRIPTIONS TO PUBLIC UNDERTAKINGS.

CHAPTER 209.

OF SUBSCRIPTIONS TO PUBLIC UNDERTAKINGS.

1899

CHAP. 209

public works,

1. Where any subscription list is opened and any sub- Subscribers to scription is made in aid of the erection of any road, bridge, liability of. place of worship, school house, or in aid of any other undertaking of public utility, or which is designated in the subscription list as, or appears therefrom to be, a public undertaking, and such undertaking is commenced, every person who has engaged by written subscription to contribute money, labour or other aid towards the undertaking, shall be held liable to perform such engagement, notwithstanding any apparent want of consideration in the agreement for the same. R. S., c. 86, s. 1.

may require

2. (1) The following persons may require every per- Persons who son who has so subscribed to perform his engagement, that performance of is to say,

(a) where a public grant is made in aid of such undertaking, the commissioner or other person appointed to expend such grant;

(b) where no public grant is made, the person to whom the performance or superintendence of such undertaking has been entrusted, and

(c) the person who has engaged in, and in then carrying on, such undertaking.

engagement.

brough..

(2) If any subscriber, after a written notice of at least Action, when one month, refuses or neglects to perform his engagement, he may be sued by such commissioner or other person in this section mentioned, or by the person to whom such subscription is payable.

administrators.

(3) Nothing in this section shall be construed to bind Executors and or make liable the executors or administrators of, or the estate of, any subscriber, unless it expressly appears from the instrument subscribed by him that he intended that his estate should be liable by binding his executors or administrators. R. S., c. 86, s. 2.

covered, how

3. All moneys or other aid so subscribed and recovered Moneys reshall be applied and expended for the purpose for which applied. the same have been so subscribed, and for no other purpose whatever. R. S., c. 86, s. 3.