Tes Dy / A —s Hawkins. ov -Fletoher. Judgment. eee Isaacs J. Notwithstanding the very full and earnest presentation by Mr Macrossan of the case for this appeal, I am unable to entertain any doubt that t should be dismissed. The late and lamented Chief Justice McCawley exemined the facts with extreme thoroughness, and after giving weight to every possible con=- -sideration,arrived at jg the conclusion that the defendant, the present appellant, was liable in damages for breach of his agreement. The damages were awardad on the basis that several hundred cows . the subject of the contract,were in calf at the date of delivery. That being the basis, it becomas unnecessary to consider whether reliance can be placed upon the oral warranty, which formed an alternative ground of complaint in this case. The oral warranty may be aisregarpa, peocause the interpretation placed by McCawley C.J., upon the words i "ary cows" in the written contract of 13 September 1923, was that thai i expression meant "cows not in calf", and that interpretation,.in the circumstances of this case cannot be shaken. --------~-----~------ There were several objections taken to the judgment under appeal, and Logical these may be dealt with in/order, We ee een nee nn ne ene eee nee fa) a a First it was said that the words in the contract "as inspected "hy Mr W.Walters" negatived the idea of eny warranty, and in- j | ' dicated that Walters, the respondent's agent, bought on his { own judgment after inspection. But the words as to inspection | in their collocation merely identify the bulk inspected, out of which the lesser number purchased are to come, and as to these, the words of the contract form the terms of purchase. One of those terms ig that about 700 are sold as "ary cows". Then it was said, that to reach an interpretation, not being the ordinary and natural meaning of the words under construc- -tion, it was necessary------~--~--------------------------+ vo find @ trade usege, and trade usage, it was urged,had not. been pleaded. That objection fails because its fundamental assumption is absent. The expression "dry cows" has no primary natural meaning that could have any sensible application to the contract. There can be no doubt as to the primary meaning of the word "cow"; but the word Rixg "dry" has an extremely varied signification, dependent largely on the substantive to which it is attached. Linked to such words as shesp, garment,nurse, light, sermon, weather, wine, humour,and a host of other words, the attributes it indicates or suggests are different sometimes in nature ~ag physical or intellectual- and sometimes in degree. To pmraphrase the expression "dry cows" would be impossible unless one had or assumed the surrounding circumstances. . eae e---------------- The question here is simply what is the meaning of the phrase or term in this contract, made in the proved circumstances. Briefly those eireumstances are that the cows were bought for the purpose known to poth parties, not of keeping them for dairying, but of travelling them a considerable distance along a somewhat difficult road and fattening them for sale. What is the meaning of "dry cows" when used in that connection? Bhere being no fixed natural meaning, which would be intelligible, what is to be done in order to ascertain the intention of the parties? You can always give parol evidence to identify the subject-matter of the contract. The law as to that I have very recently stated, and made somewhat detailed reference to the most authorita- that reference, I shall do nof more as to this point than requote one passege from the judgment of Viscount Haldane L.C,, in Charring-_ -ton v_ Wooder(1914 A.C.p.71 at.p.77):- "If the language of 2 "written contract has & definite and_unambiguous meaning, parol "evidence is not admissible to shew that the parties meant something ""aifferent from what they have said. But if the description of the "subject-matter is suscep' "-dence is admissible to show what were the facts to which the "contract relates". 'he learned Lord addsi- "If there are circum- "stances which the parties must ix be taken to have had in view "when entering into the fmuxk contract, if is necessary that the Court which construes the contract should have these circumstances "hefore it", eee renee en en nnn ewer nen n nn nnn nen Now, here there is, as I have said,no definite and unambiguous mean~ ~ing attachable to the words: they have no senstble meaning at all apart from the circumstances of their use; and,conseqnently, it is neossgary for a Court of construction to familiarise itself with the surroundings of the occasion, such as the vocabulary of persons en- -gaged constantly or usually in the oe¢upations involved when dealing for the purposes of such a transaction. Ihe meaning so ascertained is not a secondary meaning, it is the natural and indeed the only sensible meening in conection with the event. %kuxitxsixmhjasxxcxxx y taakoined, If however the avidence be regarded as admissible, there. is another objection urged,namely, that the evidence is not sufficiently pre- -cise, consistent and general, to enable a Court to reach the conclu- ~sion referred to, ~---~-----~-~--------- enn -- oe ee ee ene e It must be at once observed that no attempt was made -if we except a very late and faint attempt - by way of dernier ressort - to maintain' there was no contract because of an unenforceable indefiniteness of subject-matter. Treating that suggestion with seriousness, it is suf- «ficient to say it is not tenable. The task of Lktmix finding the proper interpretation of the phrase "ary cows" was difficult, but not insiiperable. The late# learned Chief Justice carefully found his way through the differently phrased testi- -mony of the experts. Having heard the witnesses,and appraised their respective values, he came, in substance, to the coneleg@ion, that the cattle industry,like most other modern industries, has & somewhat varied terminology in keeping with its variations of purpose. "Dry cow" when applied to a cow, regarded as a milking proposition,is not of precisely the same meaning as when applied to a cow looked at ag a fattening proposition, In the latter case, the evidence accepted by the Chief Justice, as the most reliable convinced him that "dry e "cow" conveyad the sense of the cow not being in calf. It is impossibl to displace that conclusion without displacing the testimony of the witnesses relied on; and that is so dependent on the personal characteristics of the witnesses and their manner of testifying that it is hopeless to ask the Appellate Court to discard their evidence. The result is that the Appeal fails, and should be dismissed with Costs, boat?" Faw INS «Vo FLETCHER. i Higcing de The evidence of witnagses aa to the maning of the words edry cowa', a9 used in the beef cattle industry, was, in my opinion, properly adatited by the Inte Chief Justice; ani his conclugicn depends se mon on the relatives weight to bo attached to the different experts (so-called that it ought not,under the circumstances, ta be disturbed by a Court of Appeal which has not secn or heard the witnessed. The conclusion of the learned Judge was that the expression *dry Cova" in Exhibit 1 aces not mean, or include, cows in Gaif, Many of the cows deliversd by the defendent (appellant) were in calf, and thorefore died or were injured in travelling; and the defendant is liable in damages. : According to Parke B.,advising the House of Lords in shaw ve Witoon (9 Cl. & Fin. 555,555) ,not only is it competent to reeeive evidence of the meaning of a foreign language,*but it ds aieo compatent (to receive evidenos of meaning) wherw teohnical torm or peculiar term, or indesd any expressions are used which at the tine the instrument was written had acquired an appropriate meaning, either generally or by local usage or amongat partioular classes" « According to tae same Judge, when Spaking 98 a member of the House Ro parol evidence can be aimitted to add to or deseeet, from the description in the deed, or to alter 4t in any respect; but parol evidence 1a always admissible to show all * ciroun— atandes necessary to place ketgza the Court when it Construgs an tnatra~ sunt in the position of the parties to it, so as to enabl ait, to judge of the neaning of the instruments (Baird v. Fortune 4 acd ,H.L.149). According to Stephen on Evidence( 7th Kata 102) - * In order to ascertain the moaning of the signs and words mate (s10) upon @ dcoument, ofal evidense may be given of the meaning of illegible or not covonly intell- Agible oharagters, of foreign, obselete, technical local and provincial expressions, of abbreviations, and of Sotmon words which from the con- * text appear to have bewn used ia a peuliar sense; tut evidence may not be given to show that counon words, the meaning of which da pladn, and which do not appear from the Oontext io have been used in a peculiar sense, vane in fact eo waed*. The word sdrye isa comeon word; tha word "cowss dso a commen words bat the axpreasion. dey aowas aannot be @al1b4fcomon a8 used outeide the aaday industry. . Boss dt mean dry Pd vaio, or dry ef milk? Tho exprea~ Be addon ig used hore by tee men contradting in ths beef oattla industry; and the dry cows ave sold with speysd acts Sven asmuning that ve cannot find a -necegsary intontica that thé bows were to travel along a long ragh aad difiioult road, and that we mast! find in the context of the dAcoumeat itself that the exprossion 1a used ey a pesuliar ames, thore"enaugh in the contest to show that the epreacton was a0 usede i