by Hurteau & Brothers was duly concluded by Lemay and Little. For the purpose of ratifying that sale Messrs. Hurteau & Brother on the same 12th January addressed the following letter to Messrs. Edwards & Co.: Messrs. Edwards & Co. Montreal, 12th Jan., 1888. Gentlemen,-You will please ratify Mr. Lemay's order for one million feet 3-inch mill culls, 8-13 feet, and 493,590 feet 3-inch mill culls, 14-16, sold to Mr. William Little, f.o.b. of barges, with option to draw them from the piles if he wants some during winter. (Sdg.) N. HURTEAU & FRÈRE. Upon the same 12th of January Mr. Lemay addressed the following leter to Messrs. Edwards & Co., Rockland: Montreal, January 12th, 1888. Gentlemen, I have this day sold to William Little, Esq., the following lumber now in your yard to my order, 1,000,000 feet 3inch M.C. deals, 8-13; 493,590 feet 3-inch M.C. deals, 14-16. I have given him an order on you for the delivery of same, which you will please accept, and in shipping this lumber to him you will do me a favour by seeing that he is treated as well as myself. Your reply will oblige. Yours truly, E. H. LEMAY. The within order is the one I mention as having been given to Little. (Sgd.) E. H. LEMAY. Please accept the within order and return to me at once, as I wish to get the note on delivery of same. (Sgd.) E. H. LEMAY. The following order was the one which was enclosed in the above letter for the acceptance of Messrs. Edwards & Co.: Montreal, January 18th, 1888. Messrs. W. C. Edwards & Co., Rockland, Ont. Gentlemen, Please deliver to Wm. Little, Esq., or order, the following lumber now in your yard, to my order, viz.: 1,000,000 feet B.M. 3-inch M. cull deals, 8-13. 493,590 feet B.M. 3-inch M. cull deals, 14-16. 1890 Ross บ. HURTEAU. Gwynne J. And oblige yours truly, (Sgd.) E. H. LEMAY. 1890 Ross บ. HURTEAU. Gwynne J. Messrs. Edwards & Co., having already received Messrs. Hurteau & Brother's letter affirming the sale by Lemay to Little and directing them to ratify Lemay's order for the lumber sold to Little wrote across the order: "Accepted, W. C. Edwards & Co., January 20th, 1888," and returned the order so accepted to Lemay, who thereupon obtained Little's note for the price of the lumber and delivered the order with Edwards & Co.'s acceptance upon it to Little. In the month of February, 1888, Little applied to Messrs. Ross & Co., of Quebec, for an advance of $7,500 upon security of certain deals which he represented that he had at Messrs. Edwards & Co.'s yard, Rockland. Messrs. Ross & Co. consented to make the advance if Little should give them an order for the lumber and that Edwards & Co. would undertake to hold for and on behalf of Ross & Co. Accordingly, Little wrote on the back of the order which he held, accepted by Edwards & Co., the following: Please hold the within mentioned quantity of deals subject to the order of Ross &Co., of Quebec. Quebec, 28th February, 1888. (Sgd.) Wm. Little. and procured Edwards & Co. to sign the following undertaking also on Lemay's order, accepted by Edwards & Co., at the foot of Little's direction to hold the deals on behalf of Ross & Co.: Will hold within deals subject to order of Messrs. Ross & Co., as above authorized. Rockland, March 15th. 1888. (Sgd.) W. C. Edwards & Co. Upon taking this undertaking and delivering it to Ross & Co. they upon the faith of it made to Little the advance of $7,500, and subsequently Edwards & Co. delivered to the order of Messrs. Ross & Co. or to themselves 96,975 feet of the lumber. Three months afterwards and on the 13th of June, 1888, Little's note to Messrs. Hurteau & Brother not having been paid, they by their solicitor addressed and sent the following letter to Messrs. W. C. Edwards & Co. Toronto, June 13th, 1888. 1890 Messrs. W. C. Edwards & Co., We forbid you to deliver to William C. Little or James Ross & Co., or any person claiming under them, any lumber referred to in order dated January 12th, 1888, signed by E. H. Lemay, we being the owners thereof, and the said Little having become insolvent without having paid for the same, and we also forbid you delivering any lumber belonging to N. Hurteau & Frère that is now in your yard to the said Little or Ross or from separating or interfering with any lumber at any time owned by us and claimed by Little or Ross. (Sgd.) BEATTY, CHADWICK, BLACKSTOCK & GALT, Solicitors for N. Hurteau & Frère. Now at this time there can, I apprehend, be entertained no doubt that, upon the authority of Stonard v. Dunkin (e); Gosling v. Birnie (f); Hawes v. Watson (g); Woodley v. Coventry (h); Knights v. Wiffen (i), and the doctrine of estoppel as expounded in Simm v. Anglo-American Telegraph Co.(j) in an action of trover if brought by Ross & Co., against Edwards & Co. upon their refusal to deliver to Ross & Co. the quantity of lumber described in their undertaking of the 20th March as being held by them for Ross & Co., they would have been estopped from denying Ross & Co.'s title to the lumber whoever might be the persons in whom the legal title was really vested. So long as Edwards & Co. were solvent the claim of Hurteau & Brother with whom Ross & Co. had no connection was a matter of indifference to Ross & Co. Hurteau & Brother quite independently of Ross & Co.'s clear claim against Edwards & Co. might also have a good cause of action against Edwards & Co. in the result of which Ross & Co. were in no way concerned. However, it appears that Edwards & Co. as if they were indifferent holders of property of which Hurteau & Brother and Ross & Co. respectively claimed to be the owners filed a bill in the Court of Chancery for Ontario setting out the facts as above and calling upon Hurteau & Brother and (e) 2 Camp. 344. (h) 2 H. & C. 164. (j) 5 Q.B.D. 188. Ross บ. HURTEAU. Gwynne J. 1890 Ross v. HURTEAU. Gwynne J. Ross & Co. to contest between themselves the title to the lumber in Edwards & Co.'s possession, and which they had undertaken to hold for Ross & Co. and obtained an order from that court for sale of the lumber and the depositing in court the proceeds arising from such sale to abide the result of an interpleader issue directed to be tried between Ross & Co. as plaintiffs and Hurteau & Brother as defendants, wherein the question to be tried should be whether the plaintiffs or the defendants in the said issue were entitled to the said lumber so sold under direction of the court or to the proceeds thereof. Why, under the circumstances of the case, Ross & Co. should have been required to be parties to such issue or why they should have assented thereto appears to me, I confess, singular, for even though the issue should be determined against them such determination of it would not, that I can see, in any respect prejudice or affect their claim against Edwards & Co. founded upon their undertaking of the 20th March upon the faith of which Ross & Co advanced their $7,500. However, that is the issue which has been tried and the judgment upon which is now in appeal before us and we must deal with it, even though the result should not be conclusive upon the rights of the respective parties as it will not be if the judgment pronounced in the court of Ontario must be maintained; the effect of which upon Ross & Co. would seem to be simply to subject them to the costs of this interpleader issue without affecting their rights as against Edwards & Co. The question as it seems to me which we have to determine is not, as it appears to have been treated in the Ontario courts, whether the legal title in the lumber specified in the sale to Little ever actually passed out of Hurteau & Brother, but whether in view of the terms of the sale note to Little and of the order in his favour upon Edwards & Co. and of Lemay's (Hurteau's broker) letter to Edwards & Co. enclosing to them that order for their acceptance and of Hurteau & Brother's letter to Edwards & Co. accompanying the order in Little's favour, Hurteau & Brother in an action 1890 Ross v. Gwynne J. against them at the suit of Ross & Co., who claim through Little and Edwards & Co., should or should not be estopped from asserting that the title did not pass to Ross & Co. HURTEAU. Whether in fact Hurteau & Brother have not so conducted themselves as to authorize Edwards & Co. to enter into the obligation which they have entered into with Ross & Co. so as to be estopped from asserting title in themselves in the lumber with which Edwards & Co. have upon the faith of the authority derived from Hurteau & Brother undertaken to hold for and as the property of Ross & Co. ? The sale note which was expressly approved by Hurteau & Brother shews that what was intended was a sale of lumber to Little. The order to Edwards & Co. consequent upon the sale was an order to deliver the lumber mentioned therein to Little or his order. This order Lemay, as Hurteau's agent, enclosed to Edwards & Co., directing them to accept it and to return it when accepted to Lemay in order that he as Hurteau's broker should upon Hurteau's behalf receive from Little his note for the price of the lumber as agreed upon, and Hurteau & Brother in their letter to Edwards & Co. direct them to ratify Lemay's order in Little's favour. Upon the faith of this acceptance, Little gave his promissory note for the price of the lumber, and reeeived Edwards & Co 's acceptance of Lemay's order to deliver the lumber in pursuance of a sale which Lemay informed Edwards & Co. by a letter, enclosing the order to them for acceptance that he, Lemay, had made of the lumber to Little. The effect of this transaction was plainly, as it appears to me, to direct Edwards & Co. to accept the order in Little's favour so as to become the bailees of Little of the property mentioned in the order subject to Little's order and to invest them with authority from Hurteau & Brother to do everything which might be necessary to enter into a valid agreement with Little to hold the lumber subject to his order; and it was for this purpose that Edwards & Co. were directed to accept the order so that upon Hurteau & Brother's broker handing the accepted order to Little they |