Deitcher v. Whitzman

Deitcher v. Whitzman

The weight/draft-checking clause did not govern the Dartmouth scrap after the parties agreed to load by lighterage at Halifax because simultaneous loading made displacement/draft checking impossible and the clause required cooperative concurrent checking; therefore plaintiffs could prove weight by best available evidence and the jury's finding that 875 tons were delivered was warranted.

Citation
[1936] SCR 539
Parties
Defendants Appellants: Louis Deitcher and Jacob Deitcher trading as Deitcher Brothers; Plaintiffs Respondents: Myer Whitzman and Edward Whitzman
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
27 May 1936
Procedural Posture
Contract Sale of Goods / Appeal to Supreme Court of Canada From Supreme Court of Nova Scotia En Banc
Outcome
Appeal dismissed with costs; judgment of the Supreme Court of Nova Scotia en banc affirmed.
Legal Topics
Weight Clause, Contract Variation, Implied Terms, Proof of Weight, Loading and Shipment
Source Language
English
Contract Sale of Goods Commercial Law Weight Clause Contract Variation Implied Terms Proof of Weight Loading and Shipment

Case Brief

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Parties

Louis Deitcher and Jacob Deitcher trading as Deitcher Brothers

Defendants Appellants

Myer Whitzman and Edward Whitzman

Plaintiffs Respondents

Procedural Posture

Contract Sale of Goods / Appeal to Supreme Court of Canada From Supreme Court of Nova Scotia En Banc

Legal Issues

  1. 1 Whether the weight clause in the original contract applied to the changed loading arrangement at Halifax
  2. 2 Whether the weight/draft checking clause was incorporated as an implied term of the new arrangement
  3. 3 Whether the prescribed displacement/draft method could be used once Halifax and Dartmouth scrap were loaded simultaneously

Ratio Decidendi

The weight/draft-checking clause did not govern the Dartmouth scrap after the parties agreed to load by lighterage at Halifax because simultaneous loading made displacement/draft checking impossible and the clause required cooperative concurrent checking; therefore plaintiffs could prove weight by best available evidence and the jury's finding that 875 tons were delivered was warranted.

Court Disposition

Appeal dismissed with costs; judgment of the Supreme Court of Nova Scotia en banc affirmed.

Orders

  • Appeal dismissed with costs
  • Judgment of the Supreme Court of Nova Scotia en banc affirmed