quantity to wit, nine hundred barrels of flour as and for superfine flour No. 1 as aforesaid, and although defendant did, within a reasonable time, send such flour to Montreal to be inspected, yet, though inspected, it did not stand and pass inspection as for superfine flour No. 1 in that market, but as for flour of a very inferior quality, to wit, superfine flour No. 2-of all which defendant had notice; whereas plaintiff lost great gains, &c.

Fourth count, 3001. goods sold and delivered, money paid, and money had and received. Damages laid at 300l.. Pleas-1st September 1851: 1st, non-assumpsit.

2nd, To the first count-that plaintiff did not deliver to defendant, nor did he receive from plaintiff, wheat of the quality or kind in said first count mentioned: concluding to the country and issue.

3rd, To second count-similar to the last.

4th, To third count-similar to the last.

5th, To third count-that the flour which defendant delivered to plaintiff, and therein referred to, did pass and stand inspection as and for superfine flour No. 1 in Montreal market: concluding to the country and issue. Verdict for the plaintiff, and 300l. 14s. 9d. damages.

At the trial before McLean, J., at the last fall assizes held in and for the united counties of Wentworth and Halton, the following correspondence was given in evidence to prove the contract, &c. :-On the 21st January 1851, the plaintiff wrote to the defendant that he had on hand 5000 bushels of good quality red wheat, which he thought of getting manufactured in spring; that the Mutual Mills would grind at 448, but if he (defendant) would do it at the same, in the event of his (plaintiff's) deciding to have it ground, he would give the defendant the preference.

On the 29th of January, the plaintiff wrote to the defendant, referring to the above and their subsequent conversa tion, that he had decided to give the defendant the grinding of the wheat mentioned, understanding the conditions to be, that as soon after the opening of the navigation as possible-fire and other accidents excepted--he (plaintiff) would deliver to the defendant, at St. Catherines, 5000

bushels of fall wheat, and for every 48 bushels of wheat the defendant would deliver free on board at St. Catherines, to the plaintiff's order, one barrel of flour of the Merchants' Mills brand, and warrant same to inspect No. 1 superfine in Montreal, Quebec, or New York. Any further lot he might send, to be ground on the same terms.

On the 31st of January 1851 the defendant wrote to the plaintiff, in reply to the above letter of the 27th January, that he would manufacture the quantity of wheat mentioned, or any further shipment, on the terms mentioned-say for every 48 bushels of the quality shewn him (defendant) in his office, delivered at the defendant's mills free on board vessel, one barrel S. F. flour, guaranteed to inspect as such in Montreal, Quebec, or New York-and requesting the plaintiff to keep the sample wheat for their mutual reference. in case it should be necessary to compare it with the cargo when it arrived, adding that the Merchant's Mills were Mr. Philips' and his (defendant's) Union and Welland.

On the 22nd April 1851 defendant wrote to plaintiff that the vessel had arrived the day before and discharged 5000 bushels of wheat which he had not seen, and therefore could not speak of the quality. On the 26th April 1851, defendant wrote to plaintiff that his miller had informed him the wheat was rather damp and very smutty, so much so that it was impossible to make flour of a good colour; that he (the miller) thought it would take at least five bushels to make a barrel of flour that would pass inspection; that he (defendant) had not had time to examine into the matter himself, but thought it best to drop the plaintiff a line on the subject; that, if the wheat was such as the miller represented, he (defendant) would decline grinding any more of it upon any terms whatever, as the reputation of his mills was of far more consequence than the profit to be derived in manufacturing from wheat even at a liberal allowance for want of quality.

On the 28th April, the plaintiff wrote to defendant, that should the quality of the wheat not turn out as the sample shown he would require to know, as it was purchased from sample, which sample was still in his office at Hamilton,

and had been exhibited to defendant when they made the bargain. He then mentioned his having purchased 9000 bushels more wheat, on the strength of their subsequent conversations, which he had ordered to be shipped to defendant, adding, in a postscript, that as soon as the defendant had the wheat ground to let him (plaintiff) know, and he would give directions as to shipment to Montreal by defendant's steamer, and that he would like it sent soon.

On the 10th May, the plaintiff wrote to defendant requesting to know the exact quantity of flour he then held manufactured for him (plaintiff), and the charges to Montreal, &c., adding, that the quantity, according to their terms of contract, he (plaintiff) made out to be 1084 barrels 80 lbs., and desiring to know whether the defendant would take the second cargo then on its way to his mills.

On the 19th May, the defendant at St. Catherines wrote to plaintiff at Hamilton, that he (the plaintiff) would receive therewith a sample of the flour made from the wheat; that it was the best he could do, for the wheat was in such a damp state that it was impossible to clear it of smut, and consequently the flour was very dark; that the flour had been ready some time, and could be shipped to Montreal at 18. 3d. per barrel. He then advised the plaintiff to send the rest of the wheat to Montreal and sell it there, for that unless it was dry he could get no better flour made from it than the sample then sent; that he (the defendant) was sorry for plaintiff's sake as well as his own, for had the wheat been dry some good might have been done.

On the said 19th of May, the plaintiff at Hamilton wrote to the defendant at St. Catherines, to the effect that the letter would be handed him by Mr. Hutchinson from his office, who would attend to the shipping of the flour, he (the defendant) had made of the Goderich wheat; that the sample he had sent him reached him too late to enable him to judge of the quality, and therefore act principally upon your own report; that Mr. Hutchinson was fully empowered by him to grant receipts and otherwise act for him.

On the 21st of May 1851, the plaintiff at Hamilton wrote the defendant at St. Catherines that he was advised of the

vessel having left Goderich with a cargo of wheat for defendant's mill, and requested the defendant immediately on her arrival to apprise him, and not to receive the cargo until he had time to be with him to examine the wheat.

On the 27th of June the plaintiff wrote to the defendant that he learnt from Montreal that the flour shipped by the plaintiff at St. Catherines on the 27th and 30th ultimo, under our contract, amounting to 1012 barrels, had arrived and remained undisposed of, and was then in store at Montreal for further orders-the inspector having reported an inferior brand to that which was guaranteed by the plaintiff; that plaintiff did not hold himself responsible for the further disposal of the flour, but would be most happy to afford defendant any assistance in his power to dispose of it to the best advantage; that 215 barrels of the flour had been lost and was protected by the insurance, leaving 797 barrels subject to the defendant's instructions, and that plaintiff would be glad to receive any suggestion from him as to the method of proceeding with the sale.

On the same day, the defendant wrote the plaintiff, acknowledging the receipt of the last mentioned letter, and said, in reply, that if the flour manufactured from his (the plaintiff's) wheat did not inspect No. 1 it was no fault of the defendant, but of the wheat the plaintiff had sent him, and that as he had never had any ownership in the property, he did not feel inclined to assume it at that late day; that his instructions to his miller were, to make the best article he could, without reference to the defendant's interest in the yield, which he told defendant he had done; that had the wheat been as dry as the sample shown him at the plaintiff's office, he thought the flour would have passed as No. 1-at any rate, that he would have felt bound to make good his contract; that it was usual, when grinding on commission, to turn out flour made from the identical wheat left with "us," which defendant had done in that case, and that the plaintiff could hardly expect him to do

more.

On the 30th of June the plaintiff wrote to the defendant, annexing a copy of a letter which he had addressed to

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VOL. II.

Messrs. Holmes, Knapp & Co. of Montreal, respecting the flour referred to in his letter of the 27th instant, just received; that as it was his intention, should the deficiency anticipated in his (the plaintiff's) letter arise, to claim from the defendant the entire amount thereof, he requested, should the defendant have any suggestions to make respecting the disposal of the flour, that he would communicate the same to Messrs. Holmes, Knapp & Co., for their guidance. The letter referred to was written to Holmes, Knapp & Co., and directed a sale of the flour to the best advantage for the benefit of all concerned. It speaks of the flour as received by them about the end of the previous month of May, and of his intention to look to the defendant for any deficiency of price, &c.

On the 21st of July, Mr. Macara, the plaintiff's attorney, wrote to the defendant proposing some concerted arrangement for the disposal of the flour, and informing defendant that the plaintiff looked to him for indemnity.

The plaintiff also gave evidence to shew that the wheat delivered corresponded with the sample:

1st, The evidence of Wyatt, a clerk of his, who purchased the wheat, and who said that he had bought the wheat, which was red fall wheat, at Goderich in January last in two lots of 3000 and 2000 bushels respectively, from both of which the sample-which was produced at the trialhad been taken, the prices being 68 and 70 cents per bushel; that the bulk was equal to the sample in which there was some smut, and which he thought was deteriorated from keeping.

2nd, Rhynas, another witness, was called to prove the sample sent by Wyatt was the same shown to the defendant in the plaintiff's office at Hamilton in January.

3rd, Christopher Crabb, who had sold the wheat to the plaintiff, corroborated Wyatt's testimony, and showed the whole quantity was fully equal to the sample; that the wheat was perfectly free from damp in his store; that he saw it shipped on the 10th of April in good order, and he saw it delivered at defendant's mill in as good order as when shipped; that defendant's miller received it, only