Jackson Asphalt Co

Essay

Jackson Asphalt Co. Ltd. had been informed of upcoming requirements of the Ministry of Transportation for the supply of $600,000 worth of asphalt for a nearby road project. To comply with the requirements for tenders, Jackson Asphalt was required to have their bid submitted to the Minister of Transport no later than 3 p.m. on October 2^nd of that year. Jackson Asphalt prepared their bid and contacted Swisher Couriers Limited and requested them to pick up the envelope. Swisher attended at the Jackson offices at 12 noon on October 1, and their driver was met by an engineer of Jackson Asphalt. "I do not know if you can do this or not, but this must get to the addressee by 3 p.m. tomorrow. If you can do it, that's great, it will save me driving up myself." In response the driver said, "Well, we have our noon next day service." The engineer answered, "Well, noon would be three hours grace, do you have any problem doing that?" The driver responded, "They probably build in a little lead time anyway, but I do not think they would advertise it if we could not come through." The engineer nodded and the driver handed him the bill of lading. The engineer filled it out, marked it as a tender, and removed his copy. On it was a clause which read in fine print, "Maximum liability $2 per pound, not responsible for any further loss, damage, or injury, however caused." The envelope arrived at the provincial capital at 11:00 a.m. the following morning but missed the local routine morning deliveries. The envelope was finally delivered at 3:25 p.m. that day but was rejected by the government clerk as not being submitted in time. As matters would have it, when the tenders were opened, had the tender from Jackson Asphalt been delivered on time, it would have received the government contract and would have made a profit of $85,000. On learning this, Jackson Asphalt Co. Ltd. brought suit against Swisher Courier Ltd., for the amount of its lost profits.
Discuss the issues with respect to breach of contract that arise in this case and render a decision.
D.L.R. (3d) 267.