i l i
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FKGE "TWELVE
3
Professional cards
E. E. PARIIMAN Opt. 11. 3.0. OPTOMETIIST
Blames !fttod - lye: Examined
Office Hours: 0 to 13 - 1 an I and by appointment.
PEONI. 8287 REGENT THEATRE IILDG. Summer St. Sunnneralde
T. EAIILE IIIGKEY
Chartered Accountant Canadian Bank of Commerc- lummerslde. P. E. I. PHONE 2388
L. A. S. ALLEN
B.A.. LLB. IABIIISTEB, ETC.
'56 Water Street - Phone SUMMEBSIDE. P. E. I.
IIII. J. A. IIOIIION DENTIST Dental X-Rays Smallman Building
2319
Justice Maoauigan in the action of damages involving the non- delivery of a quantity of potatoes by Bruce Msonaught of ooleman to J. boring Rayner of summer- side was delivered in chambers re- cently.
"This is an action of damages for non-delivery of a quantity of potatoes arising out of a contract made between the plaintiff and the dedendsnt on the lilth day of Ap- ril A.D. iwi. The contract called for the delivery by the defendant to the plaintiff at the summersidu pier from October 5th to Decem- ber 15th (or on boat arrival) of 2000 bags of Canada. No. 1 certi- i'led and government inspected seed Sebago potatoes at )1.20 per loo lbs. Under the said contract the defendant was also entitled to twenty-four hours' notices of ship- ment.
"in October 1961. potatoes were selling above the price set out under the contract. and the plain- tiff testifies that defendant called to see him and asked for more money on his contract. and the plaintiff says that he was unable to pay more as he had contracted to sell a shipment of potatoes to an American buyer early in the year at a fixed price. He also states that on other occasions the defendant asked him for more money for the potatoes and he
Judgment Delivcredfllni Prince Co. Potato Case
The following judgment by Mr.
Deleudantie Tutlmeny
"The defendant testifies that ha had a oonverntion with thepla.in- tin in Best's garage around thc middle of Octdoer. and on that occasion the plaintiff told him that he would have to deliver the po- tatoes at his warehouse and after- wards he would have to truck them at his own expense from the warehouse to the pier on arrival of the boat and that the potatoes would have to be re-inspected all the pier. I-is lays that he asked for be additional per bag for the extra work and the plaintiff ra- fused. The plaintiff disputes this testimony. There was. however, a later convemation that took place at the defendant's warehouse, and the defendant's version is given in his evidence:
"He came to where I was work- ing and he asked me how I was getting along grading. He said "When are you going to start grading for me?" And the answer I gave him was. 'When you come up to Mr. MaoFarla.ne's contract price', as Mr. Mac-Farlane had raised his contract price. He said if have a. price to pay today. and I will pay lti. And he turned a- round and walked out.
"Q. 'What was Mac!-Tarlaneh raise in price?'
"A. it would he only hearsag to me; people told me he had
me ouaaorm. onAaLo'r'ra'rowNL
"Q. On that fared to deliver 31.06 2-3 a bag?'
"A. 'Correct'.
"Q. Which he refused?
"A. That is right, sir.'
"This evidence is corroborated
occasion you of- the potatoes
ity the defendant's son and also
nhin Cornish who was helping he defendant to grade the pota-
tgzi. The plaintiff, in regard to house. can that the defendantwss dunsnding more money for his potatoes which he refused.
conversation at the ware-
"I therefore nnd, as a matter of
fact. that the defendant refused to deliver the potatoes because the plaintiff would not pay him a h-igher price than that set out in the contract. and for no other reason.
Letter To Defendant
"After this conversation. and on
27th October. the plaintiff wrote the defendant as follows: "Mr. Bruce Mao!-Taught,
Coleman. P. E. I. October 2'1. i951. "Dear Sir: This is to notify you
that we must have 3.000 sacks of 100's Canada No. Government Inspected seed Pota- tatoes and 200 sacks 100ls smalls, Canada No. 1 Certified seed Se- bago potatoes. as this is the am- ount you have contracted with us.
1 Certified and
"These potatoes must be deliver-
ed within the next 10 days. today included. otherwise we 3.000 sacks 100's as floned and charge the difference between contracted market price to your account, on November 6th or
will buy above men- and current
as soon tlierea i'-
Under this you have
contract .c mood to deliver to mm at
sun-uneraide pier a total of asoo
' bag: of potatoes.
"Mr. Rayner is expecting av boat in at any time now and must have in storage before that time the potatoes necessary for the loading of this boat. He has thcefore re- served space for your loading of this boat. He has therefore re- served space for your sooo bags of potatoes and he delnana immedi- ate delivery of name to the Sum- merside pier.
"This is therefore to inform you that you must make delivery of these potatoes to the Buomerslde pier on or before Monday. Novem- ber 5th. 1961. Failure to do this will necessitate Mir. Rayner: buy- ing the potatoes elsewhere and came against you for 'thc differ- ence between the' contract price and the price which Mr. Rayner has to pay for the potatoes.
"I trust that you will save your- self from this expense and that the potatoes will be delivered forthwith.
"Yours very truly. "W. OHES'I'!iR 3. MaoDONALD.”
"These letters demanded deliv- ery of the potatoes on the 5th day of November 1951 according to the contract. The potatoes were not delivered to the plaintiff on that date or at any time.
To Determine Damage
"I have now to determine what damage the plaintiff is entitled to by reason of the non-delivery of the potatoes by the defendant, ac- cording to the terms of the con- tract. section 51 of the sale of Goods Act reads as follows:
"in Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non deliv- cry.
"(2) The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the seller's breach of contract.
”(3) Where there is an avail- able market for the goods inques-
'
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82.00
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Yliih All These Extras
2 Head Lamps -- 1 Rear Lamp - 1 Cyclometer - 1 Clock - 1 Tire Pump - 1 Combination Bike Lock - 1 Rear View Mirror - 1 pair Taueled Handle Bar Grips - 1 Whiz Tire Bell - 1 1, Swan Ornament - 2 Fender Flaps.
FREE To The a Lucky Winner
in 2r' ucvcus WHEEL TURN IN A MILE?"
SUBDIERSIDE. e ,.em59d' raised his price to 31.00 per bushel R... as H ,5 possible rm. us Lo pm. Qial use T whtiilg would have meant 51.06 2-: Cure them E ' "Yours truly. " B. F. HUNTER R. 0. W” 5- L RAW”- IIR. J. II. CUNNINGHAM .. S On November 2nd. he had his ummerslds. P. E. l. . . . is0lIC'iI.0l' write a letter to the de- EETERLNARIAN complete Visual Analyses hr "wk mmomu mu ,0, auueu fendant: DIN 2520 Glasses Fitted m"mgg1,1gpg1ng,aettingUpNlghtl. urea: "Mr. Bruce Machlaught. Biwdl "HID-Wilt w1::::"im "42: "Coleman. P. E. l. Water Street East PHONE um i:3xi:To's."Imc'" '” cr.w'npmo um ”Novemlber 2. 1951. SMALLMANS BUILDING faction or money back. TzII'lJ!';UgrlclIMh0i "Dear sir: Ml”. J. L. Rayner of summerside OPTOIHTRIST dIIW19h9i3N3W3V”" "3 7"" this town has consulted me con- cerning your contract with him. HWINABIIKE "' WINABIKE H WINABIKE "'WINABIKE " WINABIKE " WINABIKE so 5. E ' a ” B0 8 LO0I(' lry YOU? I e d , I I I I p E E n e- : is 1 . -. ? 5 es 3 . 3 Pi E' l 3 C it ” Th' B' 5 .. Get In (in IS lg y - 1 HULMAN CONTEST - . ' , I N 0-, ' p 3 III G H T N 0 W . . 2. D u-n Solv This Eas Problem 5 9 Y or II HOW MANY TIMES DOES A STAND- i
EIYIIHV HIM
BIKE
FOLI.
Value
W'INABlKE'EWINABlKE
Times is.
WINAHKE '
APRIL
Lsrnn: o.
Euler As Many
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You Wish I
CONTEST ENDS .
25lII
. Solve This Problem: 28” Bicycle Wheel Turn In A Mile "
. Visit I-lolman'l Boys' Shop and ask for your Entry Forms. You get one entry. for every 50 cents worth that you pur- chase-fill in your answer and bring or mail to Contest Head-
Easy. lsn'i li?, Get Your Entry Forms Today
OW THESE RULES-
This Contest is open to Any Boy on Prince Edward Island except children of the employees of R. T. Holman Limited. "How Many Times Does A Standard
quarters, 1-Iolman's. Summerslde.
. The more you buy the greater your chances nt winning be- cause you get an Entry for every 50 cent purchase-for in- stance: if you buy 35.00 worth you get 10 chances and so on. . A Sale Slip showing a purchase from l-iolmnn's Eoys' Shop and dated between March 16th and April 25th MUST be in- cluded with your anlwer or answers.
. Al. the End of the Contest. April 25th. lhe hoy having the correct answer or the one nearest correri. wins the Free BIHP. In the event of more than one correct answer being received. a drawing will be made to determine the winner.
. Decisions of the Judges are final.
notified by mail or phone and his
in the local papers as soon at the judging is completed.
Join The
Now - You May Be The Lucky One!
HOLMANiS Boys Shop
I
EIXIEIVNIAI e1XIHVMIM
D g be I The winner will he name will be published I-
Fun - Enter
it 3 wmunn-wmsams -. wmsama v wrxaanm
I IXITIVNIM a.'iIXI1VNI&
tion. the measure of damages is prima. facie to be ascertained by the difference between the contact price and the market or current price of the goods at the time or times when they ought to have. been delivered, or, if no time was fixed for delivery. then at the time of the refusal to deliver.
"At this time the price of pota- toes was uncertain. and as the market was advancing. the pro- ducers were inclined to hold for s. higher price.
"The only satisfactory evidence on this point was given by name MacFarlane. on behalf of the de-
' fendant. and it is as follows:
"Q. You live in summercide? A. Yes.
"Q. You are president of Mac- Farlane Produce Co. which is a registered partnership of -which you are sole proprietor? A. Gor- reel.
"Q. And I believe as such you are engaged in the potato busi- ness? A. Yes.
"Q. Were you so engaged during the fall of 1961? A. I was.
"Q. Could you tell us Just what the prevailing prices were for pc- tatoes, or what you paid or was heing paid to the farmers for pc- tatoes from October 26th and on the subsequent data? A. October 26 to October 20. 31.38 per bus. de- livered Summerside: October 29 to November 1. 01.50 per bus. deliv- ered Summerside: November 1 to November 12, 51.00 per bus. deliv- ered Summerside: November 12 to November 15. 81.76 f.o.b. farm,that would be about SLM delivered Summer-side; November is. 32.00 farm. or 32.00 delivered summer- slde. That is about as high asthey went. I don't think they dropped below the 0300.
"Q. That would be No. 1 sebago seed? A. Yes.
"Q. Were potatoes moving quite freely at that time? A. Yes.
No Explanation
"No explanation has been given by the plaintiff as to the reason he sent two man to buy potatoes at 0'1oary. instructing them to pay as high as 8206 per bushel when Mr. MacFarlane was buying at the same time for 31.00 per bushel. The plaintiff does not give any evidence as to the price of the potatou at this time at sum.- merside, nor did he state that he made any effort to buy the pota- toes at or near sumrnerside. The price of potatoes must have been about 31.00 per bushel at O'Leary on oth November. as on that date the plaintiff's agents bought a car at 31.80 from the O'Leary Farm- ers" Co-operative, and the Co-op- crativc would naturally have a -prom. on the transaction. From the 8th to the 10th the plaintiff's buyers made no snort to secure any potatoes. and I am unable to understand the delay. .
"in the case of Jamal vs. Moolia Dawood Sons sz Co. (1916) 1 A. C.. at page l'70,I..ord westbury states:
”'It is undoubted law that a plaintiff who sues for damages owes the duty of taking all re- sponsilhle steps to mitigate the ion consequent upon the breach and cannot claim as damages any mm which is due to hls own neglect. But the loss to be ascertained is the loss at the date of the breach. If at that date the plaintiff could do -something or did something which mitigated the damage. the defendant is entitled tot-he benefit of li.'. .
"In can ease, the pi-mus-haul! have made some effort to purch- ass thrpotatoes at or in the vie-
inlty of means:-nae. but he as not do so. i"In my cpinlon, however. the
plantiff, owing to the uncertainty of the market and the unwilling- neuof iaruuratoeeil.wu not in a position to purchase the pota- ioea at Bununeuide on the our day of November or succeeding days at 11.00 per bushel. and he would have expenses for commie- sion and probably for truttage.
Makes lebate
"so that, I have to estimate as nearly as e the le
noun 1 the reuoaalglty have bout,
100. "ha
ltodooaaaeilmelllsuta.
user) red can at p. re, undie-y. J a
.. .
"'It must be remembered that rules as to damages can in the nature of things only be approxi- matoly just and that they have to be worked out, not by mathemat- icians. but by Juries! Acting as a jury, I have to award what 1 con- sider iair and reasonable under the ulrcilnltanoes.
"raiding all the olrcumstaucm into consideration. I have come to the conclusion that the plaintiff should have been able to buy the III) sacks'of potatoes from 8th November to the 12th at 51.80 per bushel or w.00 per bag. The 20 cents per bushel allowed over and above the price paid by MacFar- lane should pay commission (truckage. if any) orvany addi- Mona), expenses or increase in price. "The cost of the 2000 bags of potatoes would be 36000.00. from which must be deducted the sum of 09400.00 which the plaintiff had agreed to pay the defendant under the contract. There is aka a sum of 308.07 being costs of Diathane and D.D.T. Emulsion sold by the plaintiff to the defendant and about which there is no dllpllie. "There will be judgment for, 33653.07 against the defendant to- gether with costs of suit including coats of reference op points of law." Counsel for the plaintiff-D. 0. Stewart. QC. Counsel for the defendant--W. is. Darby. Q.C. ,
o ”LOVELY TO LOOK AT" OPENS TODAY AT
CAPITOL SUMMERSIDE
--"Lovely To Look At". M-G-M's glamorous new Technicolor musl- cal, coming to the Capitol screen today. is all that its title implies its stars are Kathryn Grayson. Red skslton, Howard Keel. Marge and (lower Champion and Ann Miller. four of them-Miss Grayeon. Keel and the Champions-reunited from their big success in "Show Boat." Its songs are by the immortal Jerome Kern. its gowns. including those worn in a fabulous fashion show finals. are by the famed de- signer, Adrian. its director is Mervyn Lelzoy. whose last picture was "Ouo Vadls." its producer is Jack Cummings, whose hits include "Three Little Words" and "The Stratlon Story."
The new offering gives the viva- cious Misa Grayson an opportunity to step out of costume musicals and into the sophisticated Adrian
clothes of today, and she sings some of Kern's loveliest songs. among them the unforgettable "smoke Gets In Your Eyes." "Yesterdays" and (with Keel) "You're Devastating" and "The
Touch of Your Hand.”
skelton returned from a reord- breaking engagement at the Lon- don Palladium for his role in "lovely To Look At." one in which he once again embellishes his slapstick talent with a straight characterization. His most recent film was "Texas Carnival."
Keel. who also starred in "Texas Carnival" and more recently, in "callaway Went Thataway.” ap- peers as a young American show- man who startles Paris with something novel in an extravagant fashion show. His song solos in- clude "Lovely to Look At" and "The Most lihlclting Night."
Before he second World War Burma 1: the world's largest ex- porter of rice. shipping more than
'Msacuys,g.
I ANNUAL MEETIIIGI "
' -xuusnvoron DAIBYING co-ormnsrrv ASSOCIATION LTD. 1
will be held on. TUESDAY. MARCH 17th. AT 2 P. M.
ST. MARKS HALL, KENSINGTON. Financial statements may be obhlned at the office of the feed warehouse in Ksnslngton.
G. L. Monkley. Secret”-y,
1
son. sans: I
Farm barn. 26 ft. 6 in. by 40 ft. 6 ln., on what is the Tessie MacNeill property on Water Street West, Summerslde. Highest or any tender not necessarily accepted. Tenders close March 21st.
Write P. 0. BOX.'195, Summerslde, P. E.'I.
known as
CAMEO THEATRE I KEN SINGTON
Monday-Tuesday 7:15-9:15. Rhythm! Lovelies! Glit- ter! Color! All these and comedy too with a capital" C, in Samuel Goldwynis musical-comedy, "UP IN ARMS". starring Danny Kaye, Dinah Shore, Dana An- drews and Constance Dowling.
3,000,000 tons annually.
d IEIIIINE IIEII llleiv vet
"IawIeI"DusIeut
N k1wsneuuiuumns.usoes:uumrunucn' . ' "'9 e
.i'lzv'1
,0 Ii0WIi'!I3.,, . M .MBIfI.IINrSKElT0NiKEEl'
i::i.'.:iliIl.liliilliiii-.:.1.'.ro'..'i. names IIEMN l;sii0Y ':.".".:.iAcK'cuMMmss Home l
REGENT T0-IIAY 3.30-7.15-9.15
Tuesday 7:15-9:15; Wednesday 3:30-7:15-9915 GARY COOPER AT HIS GREATEST! T4 THE OUTDOOR HIT OF THE YEAR
T eviknaue ' -5 Eddoumuous? . nah . ,
STANLEY KRAI153:RODUCTiON5
cm COOPERH "HIGH NooN3, &THONB I4ITCHELI.- LLOYII URIWES i run Jumbo 3 Glue: xsuv 19135 at
FLASH:?3'f3 "32.?'.L' S33.o'L"”E.c2SliZ
OF 1952 BY' 262 OF 334 CRITICS.
SAumm'ea-side
Tonight 7:15 - 9:15; Tuesday 3:30 - 7:15 - 9:15
r.uIl'iIIIit!ilii&iil-A .' AMIiileHeIsvIaIith IIIUIIIIIIII
cause 12- I . ' V ..