Winnipeg Fish Co. v. Whitman Fish Co.

Winnipeg Fish Co. v. Whitman Fish Co.

Contract required delivery at Winnipeg so property did not pass until delivery; risks of deterioration only extend to those necessarily incident to transit under s.33 and the deterioration here (freezing/thawing etc.) was not necessarily incident to transit and therefore remained seller's risk; buyers did not accept the goods and gave notice of rejection within a reasonable time under s.35; sellers could not recover the price and buyers were entitled to damages for breach of warranty.

Citation
(1909) 41 SCR 453
Parties
Defendant Appellant: Winnipeg Fish Company; Plaintiff Respondent: Whitman Fish Company
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
29 March 1909
Procedural Posture
Contract Dispute Sale of Goods / Appeal to Supreme Court of Canada
Outcome
Appeal allowed with costs; judgment of trial judge restored
Legal Topics
Delivery, Sale by Sample, Acceptance, Inspection, Risk of Deterioration, Reasonable Time for Rejection, Warranty, F.o.b.
Source Language
English
Contract Sale of Goods Commercial Law Evidence Delivery Sale by Sample Acceptance Inspection +4 more

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Parties

Winnipeg Fish Company

Defendant Appellant

Whitman Fish Company

Plaintiff Respondent

Procedural Posture

Contract Dispute Sale of Goods / Appeal to Supreme Court of Canada

Legal Issues

  1. 1 Whether property passed prior to delivery at Winnipeg
  2. 2 Whether deterioration was necessarily incident to the course of transit so as to shift risk to buyer under Sale of Goods Act s.33
  3. 3 Whether buyers accepted the goods by acts or undue delay under s.35

Ratio Decidendi

Contract required delivery at Winnipeg so property did not pass until delivery; risks of deterioration only extend to those necessarily incident to transit under s.33 and the deterioration here (freezing/thawing etc.) was not necessarily incident to transit and therefore remained seller's risk; buyers did not accept the goods and gave notice of rejection within a reasonable time under s.35; sellers could not recover the price and buyers were entitled to damages for breach of warranty.

Court Disposition

Appeal allowed with costs; judgment of trial judge restored

Orders

  • Appeal allowed with costs
  • Judgment of trial judge restored in favour of defendants; plaintiffs' action for price dismissed as to the disputed carload(s)