number of different persons, some additional trouble and expense must necessarily be incurred by the company in their transmission and delivery. CROWDER, J.-I am of the same opinion. The first question submitted for our consideration, is, whether the defendants were bound to carry for the plaintiffs all or any of the goods delivered to them by the plaintiffs under the circumstances stated in the special case, at or for the lower or tonnage-rate. I agree with my Brother Williams that it is unnecessary for us on the present occasion to come to any conclusion as to the applicability of the 186th section of the 6 & 7 W. 4, c. cvi., because, assuming that that section does apply here, the plaintiffs were not entitled to have the goods in question carried at the tonnage-rate. It seems, that, where a number of parcels, each weighing less than 1 cwt., are addressed to the same individual, a lower rate is [*82 charged than that which is imposed for the carriage of the same description of parcels when directed to different individuals. I. like my Brother Williams, was for some time under the impression that there was something on the face of the parcels to denote that the whole were to be delivered to Messrs. Pickfords. That, however, turns out not to be the fact. There is nothing but the ultimate address upon each parcel. This necessarily must entail upon the company some additional labour. Is it, then, necessarily unreasonable that they should make an additional charge for this increased labour? I see nothing on the face of this special case to induce me, or which ought to induce a jury, to conclude that the charge made here was an unreasonable one. Upon the whole, therefore, I am of opinion that the defendants are entitled to judgment. WILLES, J.-I am of the same opinion; and I found my judgment entirely upon the fact which has been stated and admitted at the bar, and which we are to assume, that there was no direction upon the several parcels other than the direction to the persons to whom Messrs. Pickford & Co. were to deliver them. That fact should be considered as added to the case. The special case is not accompanied by the document of charge. We must assume from its non-appearance, that, when a number of small parcels are delivered to the company together, to be carried from the same person to the same person, the lower or tonnage-rate is charged, and not the small-parcels-rate; but that, if the parcels are directed to different persons, they are charged at the smallparcels-rate. It appears that the plaintiffs, as carriers, are in the habit of collecting parcels, and bringing them to the defendants in London (or at Norwich), to be carried for them to Norwich (or to London), and there delivered to an agent of the *plaintiffs, to be forwarded to their several destinations. The complaint is, that they are required [*83 to pay for such carriage the parcels-rate instead of the tonnage-rate; and the difference claimed in this action is 26l. 98. 5d. It is clear upon the terms of the rule itself laid down by the company, the plaintiffs are not entitled to recover; for, that rule is confined to small parcels all of which are addressed to the same person. It must therefore be by reason of that part of the rule being unreasonable that the plaintiffs recover, if at all. It is unnecessary to consider how the matter would stand at common law. The passage referred to by my Brother Williams in the notes in p. 174 of the first volume of Smith's Leading Cases, undoubtedly is inaccurately expressed. Nor is it necessary to express any opinion upon the construction of the statute 6 & 7 W. 4, c. cvi. I am

of opinion that the direction of the parcels to several persons makes a material difference. A jury would necessarily assume that that would occasion an increased amount of trouble. I do not rely upon the course which the company choose to adopt. But, when the parcels arrive at the end of the line, if all are addressed to one person, the servants of the company could at once place them together: whereas, if addressed to different persons, each package must be searched for separately. That might, and obviously must, impose upon the company an additional trouble, for which it is not unreasonable that they should make an additional charge. The question is, what would be a reasonable sum for that. It is impossible for the court to say whether the alleged overcharge here is or is not unreasonable, though a jury might have means of coming to a conclusion. For these reasons, I think the defendants are entitled to judgment.

*84] BYLES, J.-I am glad to find that the court is enabled *to decide this case, without sending the matter to a jury. It has already been decided that "packed parcels" are to be carried at the lower or tonnage-rate: and it is admitted that loose parcels, if all addressed to the same individual, are also to be subjected to the lower charge: but this is an attempt to carry the concession further. This is the case of loose parcels, directed to several different persons, with nothing to enable any one to discriminate between them and any other parcels. That clearly must impose additional trouble upon the company. There is nothing on the face of the special case to show that the difference of charge was unreasonable: and the onus of showing that lies on the party who asserts the unreasonableness. To enable the court to decide in favour of the plaintiffs, they must be enabled to fix the smaller sum as well as that for which it is to be substituted. As to the 186th section of the 6 & 7 W. 4, c. cvi., it has become unnecessary to pronounce any opinion upon it; though I cannot help saying that nothing which has fallen from Mr. Bovill has induced me to think that that section is not applicable to this case.

Judgment for the defendants.

*85] *HALE and Another v. RAWSON and Others. Feb. 9 Where there is an agreement to deliver goods on a condition which, without any default on the part of the vendor, never happens, he will not be liable for a non-delivery: but, where the agreement is absolute, or conditioned on an event which happens, the vendor will be liable for a breach, though without default on his part; for, it is his own heedlessness, if he runs the risk of undertaking to perform an impossibility, when he might have provided against it by his contract.

The defendants contracted to sell to the plaintiffs 50 cases of East India tallow, at 48s. 6d. per cwt., to be paid for by the plaintiffs in cash fourteen days after finishing the landing thereof; to be delivered by the defendants to the plaintiffs on safe arrival of a certain vessel called The. Countess of Elgin, then on passage from Calcutta to London :-Held, that this was an absolute contract to sell and deliver the tallow provided the ship arrived, and that the defendants were liable for a breach, notwithstanding that the non-delivery was occasioned by the ship's arrival (through no default on their part) without the tallow on board; and that the stipulation as to payment fourteen days after finishing the landing introduced no additional condition.

THIS was an action for an alleged breach of a contract for the sale of tallow.

The declaration stated, that, on the 17th of May, 1856, the defendants contracted and agreed to sell to the plaintiffs, and the plaintiffs then contracted and agreed to buy of the defendants, fifty cases of East India tallow, at the price of 48s. 6d. per cwt., to be paid for by the plaintiffs to the defendants in cash fourteen days after finishing the landing thereof, with 2 per cent. discount; to be delivered by the defendants to the plaintiffs on safe arrival of a certain ship or vessel called The Countess of Elgin, then alleged to be on her passage from Calcutta to London; the quality to be equal to the sample by which the same was sold; but, should it turn out inferior to the sample, an allowance to be made, in the usual mode, by arbitration; but the said contract was not to be void on that account: Averment, that afterwards, and long before the suit, the said ship or vessel safely arrived at London, and the plaintiffs were, on such arrival, and at all times afterwards, ready and willing to accept and receive the said tallow, and to pay for the same according to the said contract, of which the defendants had notice; and a reasonable time for the delivery of the said tallow to the plaintiffs elapsed after the said arrival of the said ship or vessel and before the commencement of the suit, and all other things were done and observed and happened to entitle the plaintiffs to have the said tallow delivered to them according to the said contract before the suit, and to maintain the [*86 suit: Breach, that the defendants had not delivered to the plaintiffs the said fifty cases of tallow, or any part thereof; and, by reason of the premises, the plaintiffs had lost and been deprived of the said tallow, and of the benefit of the said contract, and of divers profits and advantages which they might and would have acquired if the said tallow had been delivered to them according to the said contract: and the plaintiffs claimed 3001.

The defendants pleaded,-first, that they did not contract and agree as alleged, secondly, that the said fifty cases of East India tallow did not, nor did any portion of that quantity, arrive in the said ship or vessel called The Countess of Elgin, when the said ship or vessel so arrived in London as in the declaration mentioned, without any default or negligence on the part of the defendants; whereby, without any default or negligence on their part as aforesaid, the defendants were unable to deliver the said fifty cases of East India tallow, or any part thereof, to the plaintiffs.

The plaintiffs took and joined issue on these pleas, and also demurred to the second plea, the grounds of demurrer stated in the margin being, --"that the second plea affords no answer to the action; that the contract to deliver declared on is an absolute contract, and not dependent upon the arrival of the goods in the ship The Countess of Elgin." Joinder.

Watkin Williams, in support of the demurrer.(a)—*1. No pro- [*87 perty in the tallow passed by the contract to the plaintiffs, for, the (a) The points marked for argument on the part of the plaintiffs, were,"That the second plea affords no answer to the action.

"That, by the contract, the defendants were bound to deliver fifty cases of East India tallow upon the arrival of The Countess of Elgin, and that that obligation was not conditional upon the arrival of the tallow in that vessel.

"And that the mere inability of the defendants to perform their contract affords no answer to an action for a breach of it, even though such inability was occasioned without any fault or negligence of the defendants."

contract would have been satisfied by the delivery of any fifty cases of tallow, provided it answered the character of that which was agreed to be delivered: Wait v. Baker, 2 Exch. 1,†-even, perhaps, though it arrived contemporaneously by another vessel. In Albridge v. Johnson, 7 Ellis & B. 885 (E. C. L. R. vol. 90), the plaintiff agreed with one Knights to purchase from him 100 out of 200 quarters of barley which the plaintiff had seen in bulk and approved of; and he paid part of the price it was agreed that the plaintiff should send sacks for the barley, and that Knights should fill the sacks with the barley, take them to a railway, place them upon trucks free of charge, and send them to the plaintiff; the plaintiff sent sacks enough for a part only of the 100 quarters; these Knights filled; and Knights also endeavoured to find trucks for them, but was unable to do so: the plaintiff repeatedly sent to Knights demanding the barley: Knights finally detained it, and emptied the barley from the sacks into the bulk: and the court held, that the property in so much of the barley as was not put into the sacks did not pass to the plaintiff. Lord Campbell, Coleridge, J., and Erle, J., also held, that the portion put into the sacks passed to the plaintiff,hæsitante Crompton, J., on the ground that it did not appear quite clearly, that, at the time when the plaintiff demanded the barley, he knew that any portion had been put into the sacks, and that, therefore, his assent to the particular appropriation was doubtful. Lord Campbell there says: "No rule of the law of vendor and purchaser is more clear than this, that, until the *appropriation and separation of a par*88] ticular quantity, or signification of assent to the particular quantity, the property is not transferred."(a) And Erle, J., says: "It is clear, that, where there is an agreement for the sale and purchase of a particular chattel, the chattel passes at once. If the thing sold is not ascertained, and something is to be done before it is ascertained, it does not pass till it is ascertained." 2. Assuming, even, that the property did pass, still the question remains, whether the contract is absolute, or subject to a condition that the tallow shall arrive, and arrive in the particular ship. It is submitted that the fair construction of the contract, upon all the authorities, is, that it is an absolute contract dependent only on the arrival of the vessel; and that the defendants are not excused from performing it, even though its performance should without any default of theirs become impossible. A contract for the sale of goods "on arrival,"-Boyd v. Siffkin, 2 Campb. 326,-"to be shipped" or "to arrive" by a particular ship,-Splidt v. Heath, 2 Campb. 57, n., Lovett v. Hamilton, 5 M. & W. 639,† Stockdale v. Dunlop, 6 M. & W. 224,† Johnson v. Macdonald, 9 M. & W. 600,t-or "that may be loaded," Hayward v. Scougall, 2 Campb. 56,-has been held to be subject to the double contingency of the arrival of the vessel named, and of the goods being on board. In Idle v. Thornton, 3 Campb. 274, the contract was contingent on the arrival of the tallow. But here the only contingency is, the arrival of the vessel named. The case of Fischel v. Scott, 15 C. B. 69 (E. C. L. R. vol. 80), as explained in Gorrissen v. Perrin, 2 C. B. N. S. 681 (E. C. L. R. vol. 89), is also an authority to show that the non-arrival of the tallow on board the Countess of Elgin did not excuse the defendants for the non-performance of their

(a) Quære whether his Lordship did not mean "and signification of assent to the appropriation and separation ?"

[*89

contract. In Gorrissen v. Perrin, A. contracted to sell to *B. 1170 bales of gambier, "now on passage from Singapore, and expected to arrive in London per Ravenscraig and Lady Agnes Duff;" and this was held to be a warranty that the goods were then on passage. Cockburn, C. J., in giving the judgment of the court, there says: "Without desiring at all to interfere with the rule laid down in the cases referred to, we may, in passing, observe that we think it has been carried far enough, and that its effect may have been to introduce uncertainty into contracts which were not intended by the parties to b contingent on accidental circumstances, such as, the transfer of a cargo from one ship to another. We are, however, of opinion that the present case is plainly distinguishable from those referred to, by the statement that the goods were on board at the time the contract was entered into. We are of opinion that this statement amounts to a warranty; and although, if circumstances had subsequently occurred whereby the arri val of the goods had been prevented, the defendants might have been protected by the words 'expected to arrive,' we think they cannot resort to them to get rid of the positive assurance that the goods were then on their passage; on the faith of which, possibly, the purchaser may have entered into the contract to buy." So, here, the defendants might, if they chose, have inserted in the contract words which would have made the delivery of the tallow contingent on the double event. But not having done so, their contract became absolute on the arrival of the vessel. And this construction is in no degree affected by the stipulation for payment within a limited time after the landing of the goods. Coleridge, contrà. (a)-1. This is a contract for the sale of a specific quantity of tallow, and consequently *immediately on the signing of the document, the property in the subject-matter of the sale passed [*90 to the purchaser: and, if the goods had been burnt or lost on the voyage, the defendants would clearly have been emancipated from the performance of their contract, the performance having by no default on their part become impossible. 2. Assuming that not to be so, the contract is conditional on the safe arrival of the Countess of Elgin with the 50 cases of tallow on board. This would be the natural and fair interpretation of the contract, if the matter were res integra. The price is to be paid "in cash fourteen days after finishing the landing thereof:" and the tallow is to be delivered "on safe arrival of a certain ship or vessel called the Countess of Elgin." In Boyd v. Siffkin, 2 Campb. 325, the contract was as follows,-"Sold for Mr. H. Siffkin to Mr. M. Boyd, about thirty-two tons, more or less, of Riga Rhine hemp, on arrival per Fanny and Almira, at 821. 108. per ton, &c., from the landing scale," &c. and it was held that this meant on arrival of the goods which the vessel was expected to bring; and that, the vessel arriving empty, without any default on the part of the vendor, he was not liable

(a) The points marked for argument on the part of the defendants, were,

"That, upon the true construction of the contract mentioned in the declaration, the property in the fifty cases of tallow ascertained and on board The Countess of Elgin, passed to the plaintiffs by the said contract, and that the said cases of tallow were the property and in the posses sion and at the risk of the plaintiffs from the time of the making thereof:

"And that the said contract was not an absolute contract on the defendants' part, to deliver to the plaintiffs the said cases of tallow on the arrival of The Countess of Elgin, but a contract on their part to deliver to the plaintiffs the said cases of tallow on the safe arrival of The Countess of Elgin with the said cases of tallow on board."