Who will pay for hay gone astray? – The Law

Reading Time: 3 minutes

Published: August 15, 2002

Q: I bought some hay from a farmer several hundred kilometres away. A

few weeks later it was delivered. There were fewer bales than I bought.

When I contacted the vendor, he told me he loaded what I bought and if

there was hay missing, the problem was with the trucker. Perhaps, he

had lost some bales or even taken some, the vendor suggested. The

trucker denies that any hay was lost when he hauled it and that he

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delivered exactly what the vendor loaded on the truck. I feel like I’m

caught between a rock and a hard place.

A: You are indeed caught. Let me give you some pointers that might help

you understand the situation.

First, we have to determine the terms of the contract with the vendor.

Did the price of the hay include the trucking costs and was the vendor

responsible for having the hay delivered to you? If that is the case,

the vendor is responsible to you for non-delivery of the promised hay

and is responsible even if the hay was lost due to the trucker’s fault.

The vendor would have to pay you. If the vendor had a problem with the

trucker, that would be a matter between the vendor and trucker. The

vendor could seek damages from the trucker.

The onus would be on you to prove that the contract included the cost

of hauling and that the vendor was responsible for the trucking

arrangements. Unless you have a written contract, this may be difficult

to show. How do you prove the terms of a spoken contract?

An independent witness who heard the discussion could testify that the

vendor was looking after and paying for trucking arrangements.

Second, you could produce a cancelled cheque on which you had endorsed

“for 50 bales and trucking.” You might be questioned as to whether this

endorsement was made at the time the cheque was written.

Finally, you could try to prove the custom or standard practice in the

area is to include shipping costs with the cost of the hay. Proving

this would involve calling farm operators who have bought and sold hay

stating that the vendor is responsible for trucking costs and

arrangements. I suspect this would be difficult to prove. My

understanding is that the buyer usually looks after trucking.

The situation is different if you hired the trucker. In such a

situation, the first question that will have to be determined is who is

responsible for the loss? Was the trucker at fault or did the vendor

not load all the bales or give the trucker all the bales to load? Given

the contradictory information you have received, this may be impossible

to determine.

If the fault is with the trucker, then he is responsible to you for the

loss. In law, a truck driver is considered a bailee of the goods and

must care for the cargo as a reasonable owner would.

So if the hay was lost due to driver carelessness or theft, the trucker

would be responsible to you. A trucking company, like any other

business, is responsible for the

actions of its employees.

So what do you do? Hopefully, you can resolve this by negotiation.

Failing that, you would have to consider court proceedings. You would

have to ask yourself how much you have lost and what it will cost to

try to recover the loss.

Claims under $5,000 in Saskatchewan or $7,500 in Alberta and Manitoba

can be heard in small claims court. You could sue both the trucking

company and the vendor.

Credibility will be a factor as the judge decides whether to accept the

word of the trucker or the vendor. If fault can’t be determined, you

will indeed be between a rock and the hard place.

Of course, if you haven’t paid or paid in full, you might be in a

stronger bargaining position by withholding payment. Situations like

this can be best avoided by having a written contract.

Don Purich is a former practising lawyer who is now involved in

publishing, teaching and writing about legal issues. His columns are

intended as general advice only. Individuals are encouraged to seek

other opinions and/or personal counsel when dealing with legal matters.

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