Charles Sargent, C.J.
1. This reference from the Court of Small Causes arises out of a suit brought by the consignees of a cargo of 2,519 tons of coal by the ship Dunedin to recover damages from the defendant for failure to take delivery of 1,000 tons of coal under two contracts dated the 2nd June, 1888. Each of the contracts was for the purchase by the defendant of 500 tons of coal per steam ship Dunedin in harbour. The coal to be of the description known as 'Inysfeied Cardiff' and to be delivered into the purchasers' boats alongside at Rs. 220 per ton, 'delivery to be taken at a rate of not less than 200 tons per diem. All conditions in the charter party or bill of lading to be binding on the purchasers.' One of the conditions of the charter party was in the following terms: 'The cargo to be discharged, weather permitting, at the average rate of not less than 300 tons a working pay, or to pay demurrage at the rate of 30 per working day, or pro raid,' except in certain cases, which it is not necessary to mention. It is found by the case that the ship began to unload at midday of the 31st May, and that the lay days terminated on the evening of Saturday, the 9th June, by which time all the coal had been discharged, excepting 264 tons of the coal purchased by defendant, which were discharged on Monday, the 11th. The plaintiffs were obliged to pay 30 for that day's demurrage, and now claim it as damages from defendant for non-performance of his contract.
2. The provision in the contract of purchase that 'all conditions in the charter party or bill of lading are binding on the purchaser' incorporated those conditions into the contracts, and by so doing imposed the obligation on the defendant of removing his 1,000 tons of coal before the expiration of the lay days, unless indeed he was prevented from doing so by default of the captain of the ship, or of the plaintiffs themselves.
3. The case finds that there was no such default on the part of the ship, and that all the coal which was in the ship on the morning of the 4th June, when the defendant had notice from plaintiffs to take delivery, might have been discharged by the evening of the 9th, if there had not been a deficiency of lighters.
4. Can it, then, be said to have been owing to the plaintiff's default that the defendant failed to remove his coals by the evening of the 9th? It was scarcely contended that the plaintiffs could be held liable for any delay earned by the mere circumstance of there being other purchasers taking delivery of their coals at the same time. This was the well-known nature of the trade, 3 and the defendant's obligation to remove his coal before the expiration Of the lay days was an absolute one. If they had wished to guard themselves against a possible difficulty arising from the above circumstance, they should have provided for it in their contract; as was pointed out by the Court in Straker v. Kidd L.R. 3 Q.B. Div. 223 and Porteus v. Watney L.R. 3. Q.B. Div. 227 : appeal at p.534, where the plaintiff was prevented from taking delivery of his goods by reason of their being beneath the goods of other holders of bills of lading.
5. The defendant, however, contends that the plaintiffs were in default, as they were not able to deliver him 400 tons per diem, as it is alleged they were bound to do by the two contracts, and that, therefore, they cannot hold him liable for the delay which occurred in discharging the cargo. This must depend on the question whether, upon the true construction of the contract, the stipulation 'delivery to be taken at a rate of not less than 200 tons per diem' was one on which the defendant could insist, or was only in favour of the plaintiffs; and we think that, looking at the circumstances under which contracts of this description are made in the coaling trade, the clause was an independent stipulation in favour of the owners of the cargo, and intended to give them the power of insisting, if they thought proper, on the coals being cleared out at the above rate per diem. As an illustration of such a distinction, we may refer to Neill v. Whitworth 18 C.B.N.S.435 where there was a clause 'that the cotton should be taken from the quay,' which was held to be solely in favour of the vendors, and not a condition precedent of the purchase.
6. Lastly, it was said that the plaintiffs should have informed the defendant, when they entered into their contracts, that only 511 tons had been taken delivery of on the 1st and 2nd June instead of 750, as contemplated by the charter party. The finding, however, of the Judge that all the coal might have been cleared out during the remaining lay days if there had been sufficient lighters, makes it unnecessary to consider this question, as it is plain that the above circumstance did not in any way prevent the defendant from co implying with his obligation to take delivery before the evening of the 9th. Lastly, the circumstance of the plaintiffs having waived a written notice of the commencement of the lay days could not affect the contracts, between the plaintiffs 'and defendant. The plaintiffs could of course waive a written notice, and their doing so prior to the sale to the defendant was a matter in which the latter had no concern.