Benner’s Sawmill Inc. entered into a contract with Chen to purchase a quantity of timber growing on land leased by Chen.  A price of $150.00 per cubic metre was agreed upon and the quantity set at approximately 600 cubic metres.  Chen was to cut, trim and timbermark (that is, marked with a provincially registered mark applied by swinging a timber hammer and striking the wood surface at both ends) the timber.  Benner’s  paid an initial deposit of $15000.00. Benner’s asked its insurance company about insuring the timber and was told that the timber could not be insured until it had been felled, trimmed, and “timbermarked”

Some weeks later, Chen phoned Benner’s and informed them that the timber had been cut, trimmed and stacked.  The total price was $94,000.00 (the quantity being a little more than 600 cubic metres). When asked if the timber had been timbermarked, Chen replied that it had not.  He was going away on a short vacation but would see to it as soon as he returned.  In accordance with the contract, Benner’s sent Chen a cheque for the full price, less the deposit already paid. 

Before Chen returned from vacation, his sheds were destroyed by fire.  When Benner’s demanded the timber back, Chen replied, “Sorry, but it was your timber that burned.”

Advise Benner’s.