wards & Co. merely undertook, as far as Hurteau & Frère and Little were concerned, to carry out with Little or his appointee, the sale made by Hurteau & Frère to Little.

Little's order in favour of Ross & Co. and the undertaking thereon by Edwards & Co. of which Hurteau & Frère knew nothing, carried the matter no farther towards a completed delivery by attornment. The effect was to entitle Ross & Co. to obtain the delivery free on board when the time for shipping arrived, or sooner if they sent teams, but it was not delivery.

It seems to me very clear that the right of Hurteau & Frère, as unpaid vendors, to refuse to deliver to Ross & Co. is established, unless they waived it by making the lumber deliverable to Little's order, or unless they have done or authorized to be done something which estops them from asserting against Ross & Co. their right to stop in transitû, or what is the same thing in principle, to refuse to deliver or to revoke their order for delivery.

The analogous nature of these remedies is pointed out in the second edition of Blackburn on Sales at pp. 341 and 342.

The vendor's lien does not appear to be affected by his directing the delivery of the goods to the order of the purchaser.

In Gunn v. Bolckow, Vaughan & Co. (k), where a loan had been effected by the deposit of a wharfinger's certificate, which was not a document of title like a bill of lading, and where it was held that the vendor's lien remained good against the pledge of the certificate, Mellish, L.J., used language which might seem to countenance the idea that an order requring the delivery of goods to order or to bearer would free the goods from the lien as against a transferee. He said:

The vendor having agreed by his contract that he would give the wharfinger's certificate, in order that the purchaser may have evidence that the goods have been actually made, and now are

(k) 10 Ch. App. 491.

1900

Ross

v.

HURTEAU.

Patterson J.

1900

Ross

v.

actually ready to be shipped, cannot help giving the certificate; and how the fact of his giving that certificate, which does not profess to be negotiable, and does not profess to require the delivery of the HURTEAU. goods to order or to bearer, or anything of the kind, can affect his lien as vendor, merely because the purchaser chooses to borrow Patterson J. money on the faith of it, I am at a loss to conceive.

Now whatever the Lord Justice had in his mind when he spoke thus of goods being required to be delivered to order or to bearer, he cannot have intended to intimate that, as a general rule, the insertion of those words would give a delivery order the character of an instrument of title or a negotiable instrument. In Farmeloe v. Bain (l) the vendor gave to the purchasers undertakings in these words: "We hereby undertake to deliver to your order indorsed hereon," etc., etc. The purchasers sold part of the goods, indorsed one of the documents to their vendees, and became insolvent. The original vendors were held entitled to set up their lien.

In the Imperial Bank v. The London & St. Katharine Docks Co. (m) Messrs. Carter sold goods to Dalton, a broker, who purchased for undisclosed principals, and signed a delivery order addressed to the Docks Co. requiring delivery to Dalton's order. Dalton indorsed the order to his principals, who pledged it with the plaintiffs. The purchasers, Dalton's principals, becoming insolvent, and possession not having been obtained under the delivery order, although the order had been deposited with the Docks Co., it was held that the unpaid vendor's lien had not been discharged.

These cases and several others are noticed in Blackburn on Sales in the discussion of the subject of dock warrants and delivery orders. In one of the cases, Merchant Banking Co. of London v. The Phoenix Bessemer Steel Co. (n), the goods were held to be free from the vendor's lien, on proof of a custom that by warrants such as the one in that case, which stated the iron to be deliverable to the purchasers or their assigns by indorsement, it was understood that the (m) 5 Ch. D. 195.

(1) 1 C.P.D. 445.

(n) 5 Ch. D. 205.

vendor had given up his lien. Jessel M.R., held that the custom had been proved; that a person giving such a warrant must be taken to know the custom, and virtually tells the trade when he issues the warrant that the goods are free from the vendor's lien. His Lordship also stated that, in the particular circumstances of that case, the defendants must have known that the warrants were intended to be used for the special purpose of pledging, and could not, therefore, be heard to set up their lien against the plaintiffs to whom the vendees had pledged the warrants.

We have nothing in the case before us like the custom proved in the case cited, nor have we, as I may state in advance of the discussion of the question of estoppel, anything resembling the circumstances which were considered sufficient to preclude the plaintiff from setting up his lien against the indorsee of the warrants.

The question of estoppel must be dealt with in this as in every other case, in my view of the principles on which the doctrine rests. These may safely be taken from the propositions formulated by Lord Esher in his judgment in Carr v. London and N.W. Ry. Co. (o). Four propositions are

enunciated.

1st. If a man by his words or conduct wilfully endeavours to cause another to believe in a certain state of things which he knows to be false, and if the second believes in such state of things, and acts on his belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things did not in fact exist.

2ndly. If a man, either in express terms or by conduct, makes a representation to another of the existence of a certain state of facts which he intends to be acted on in a certain way, and it be acted upon in that way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts.

3rdly. If a man, whatever his real meaning may be, so

(0) L.R. 10 C.P. 307.

1900

Ross

v.

HUBTEAU.

Patterson J.

1900

Ross

v. HURTEAU.

Patterson J.

conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying that the facts were as represented.

4thly. If in the transaction itself which is in dispute, one has led another into the belief of a certain state of facts by conduct of culpable negligence calculated to have that result, and such culpable negligence has been the proximate cause of leading, and has led, the other to act by mistake upon such belief to his prejudice, the second cannot be heard afterwards as against the first, to shew that the state of facts referred to did not exist.

Familiar as these accurate and comprehensive propositions may be, it is as well to have them distinctly before us, because there is unfortunately a good deal of looseness in the way we find the 'doctrine of estoppel frequently appealed to and occasionally applied.

The basis of all the propositions is the representation of some fact or state of things different from the real fact, which representation has been believed and acted on. The various modes of making the representation and the circumstances under which it is made are the distinguishing features of the different propositions.

The misleading representation necessary to be established in this case is that the lumber was held by Edwards & Co. for Little free from the vendors' lien.

That representation, if made at all, was contained either in Lemay's order of the 18th of January, with the acceptance of Edwards & Co. written across it, or in the other order and undertaking which were indorsed and which are in these words:

Please hold the within mentioned quantity of deals subject to the order of Ross & Co., Quebec.

Quebec, 28th Feb., 1888.

(Sgd.) WM. LITTLE.

Will hold within deals subject to order of Messrs. Ross & Co., as above authorized.

1900

Rockland, March 15, 1888.

Ross

(Sgd.) W. C. EDWARDS & Co.

v.

HURTEAU.

The first answer on the part of Hurteau & Frère is that, whatever representation may be involved in these indorsed documents the documents were not made by them and the representation did not emanate from them. We are not trying any question between Edwards & Co. and Ross & Co.

The order given by Lemay on the 18th of January did not follow the authority he had from Hurteau & Frère, inasmuch as it omitted the qualification, upon which rightly or wrongly they placed some stress of f.o.b., etc. If the absence of those words would make it appear that the goods were free from liability to be taken in assertion of the lien, which probably would not be the case, Hurteau & Frère might justly disavow the order and maintain that they did not by any culpable negligence place Lemay in a position to give the order or lead Edwards & Co. to accept it in its imperfect shape, because they were careful to mention the terms in their letter of the 12th, which accredited the order that Lemay was to give.

But the order does not involve any statement to the prejudice of the vendor's lien. It merely designates or permits Little to designate, the person who is to receive delivery when delivery comes to be made. It seems to me to be in this respect undistinguishable from the undertaking in Farmeloe v. Bain (p), to which I have already adverted, and of which Lord Esher said in that case:

It is admitted that the document in question is not a known document amongst merchants; therefore the court must look at it as they would at any other ordinary written instrument. So looking at it, it obviously contains no representation of any fact, and the plaintiff's had no right to rely upon it as such a representation, and consequently they do not bring themselves within either of the propositions as to estoppel, which I ventured to lay down in Carr v. London & North-Western Ry. Co.(q), and to which I still

(p) 1 C.P.D. 445.

(q) L.R. 10 C.P. 307.

Patterson J.