Geo. McKay & Co. v. McKenna

Opinion by Mr. Justice Fell, The plaintiff’s. claim is for bricks .sold and delivered to the defendant between November 5 and November 12, 1894. It is stated in the affidavit of defense that the bricks purchased after November 6 were to have been delivered at a siding at Engleside station on or before November 9; but there is no distinct averment, except as to the last item of charge, of a breach of the agreement to deliver at the siding within the time named. It is said in the affidavit that the bricks sold on the 8th and 9th of November were not shipped to the defendant on or before the 9th, and that “ subsequent to the 9th of November, 1894, it transpired that certain bricks which ought to have [585] been shipped to me were shipped to the said siding in the name of McKay & Co., but not in my name, and I Avas not able to obtain the same until about November 28, when I removed the same from the siding because of a notice that they were held at my risk, being my intention to save the cost of demurrage,” etc. As to the sale on November 12 the defendant says he received no notice of the arrival of the bricks, and that as far as he knows they have not been delivered to him in his name. The defense attempted to be set up is evidently based upon the fact that the brides were shipped in the name of the consignor. It does not appear that there was anything unusual or irregular in tins, or that the defendant was injured by reason thereof. If the shipment was made with notice to the carrier to deliver to the defendant, or with notice to him and evidence of title, he could have procured them as readily as if they had heen consigned to him. No reason is given vvhy he was unable to obtain them until the 28th. The defendant cautiously avoids saying that the shipment under date of November 12 was not delivered, and rests with the statement that he received no notice of the arrival of the bricks, and that as far as he knows they were not delivered in his name. In the preparation of the affidavit skillful use seems to have been made of the facts to which the defendant was able to swear, but it does not squarely meet the plaintiffs’ claim. Its guarded averments suggest a ground of defense, but the inferences to be drawn from them are quite as favorable to the plaintiffs as to the defendant. The plaintiffs were entitled to a distinct denial of the grounds of liability which appear in their statement of claim, and in case of doubt the construction should be against the party making the affidavit. If time was of the essence of the contract between the parties, and the defendant was not bound to accept bricks not delivered within the time specified, he cannot now avail himself of that ground of defense. He removed the bricks delivered after time from the cars to his oavu yard. If they were not shipped in his name he was not liable for demurrage, and was under no duty or constraint in respect of them. If his allegation is true, the time to rescind the contract for this breach was before he had hauled the bricks to his own yard and thus placed the plaintiffs in a different position. The judgment is affirmed.