fically enumerated in respect of which indemnity is sought by this action are not actionable, or directly consequential upon the breach of obligation stated; the judgment of the Superior Court cannot, in my opinion, be sustained; this appeal therefore should ballowed with costs and the action in the.court below dismissed with costs. With the greatest <deference to my learned brother Fournier I am unable to concur in regarding the county of Ottawa; by reason of their being shareholders in the railway company, as partners with the company who can therefore sue the county for damages within article 1840 C.
Nor if they can be so regarded does that, as it appears to me, get over the difficulty that the .damages specially sought to be recovered are not recoverable, being altogether too remote, and, in fact, not consequential on the non-execution of the obligation declared upon nor, as it appears to me, is there any loss alleged and proved to support a judgment for the $100 given and what it has been given for it is impossible to say.
the judgment of the Superior Court dismissing the appellants' action.
The facts and pleadings are fully stated in the judgements hereinafter given.
See also report of the case in M. L. R. 2 Q. B. (2).
Church Q.C. for appellants:
Was this an agreement to pledge and not a sale ? This seems to me the important question to be decided on.this appeal.
That it was not a contract of pledge is, I contend, sufficiently established by two facts:- 1. The plaintiffs were not creditors of Barlow, to whom a pledge could be given, because the notes which they endorsed were to be held, and were held, by the Bank. of Montreal; and
(1) M. L. R. 2 Q.
(2) P. 332 et seq.
2. The parties did not intend to make a pledge, because a pledge would have involved the transfer of possession of the locomotives from Barlow to the plaintiffs ; on the contrary, they called their contract a sale in terms, and acted upon it as such-Art 1025 C. C.
The consideration of the sale appears by the documents to have been the endorsation of notes drawn by Barlow in favor of third parties, which notes the appellants undertook to pay.
Barlow, however, reserved the right practically (although not in formal terms) to intervene and pay the notes himself at maturity, or pay them after maturity, in which case he was entitled by the agreement to a re-delivery of the locomotives sold. The accepted principle of construction and interpretation, made a rule of law in the Province of Quebec by Art. 1013 of the Civil Code, which provides that when the meaning of the parties to a contract is doubtful their common intention must be determined by interpretation rather than by an adherence to the literal meaning of the words of the contract, should be applied here if there is any doubt of what was meant; and the subsequent rules laid.down in articles 1014 and 1015 concur in showing that no ambiguity of meaning or expression shall be permitted to defeat the real meaning of the contract. These rules would manifestly be overlooked and set at naught if this agreement or contract were taken as a pledge.
Moreover, the defendant Barlow and the other defendants could say that the contract was inchoate, because no delivery had been made, and therefore no pledge given, and the whole transaction, like the agreement, would become purposeless and meaningless.
Moreover, the words of the contract show that a sale was intended; " I have this day sold " are the words of the contract. The price was clearly the payment by the plaintiffs, at their maturity, of the notes.
The delay of payment . m was the period which would elapse between the signing of the notes and their maturity. Considered as a contract of sale, this delay in payment, and nondelivery at the time of the sale, did not affect it, because article 1025 C. C. provides that a contract for the alienation of a thing certain and determinate, makes the purchaser owner of the thing by the consent alone of the parties, although no delivery be made; and this interpretation makes the documept a binding obligation, and avoids its jmiscarriage as a pledge. The things sold in this instance were certain and determinate, because the defendant Barlow sold ten locomotive engines of the make of the Rhode Island Locomotive Works then owned by him- " which I now own " are the words of the contractand it appears from the statement that of the fifteen locomotives of the make of the Rhode Island Locomotive Works, which were sold to the parties in this cause, ten only were sold to Barlow individually. See also arts. 1472, 1027,
As to the trustees of the bondholders. tjhey have no laus standi.
The bondholders could, if they wished, have intervened, as they had been notified through their trustees of the suit.
Our code in terms.declares " no person can plead in the name of another," ad that " corporations plead in their corporate names," and that ouly those who have not the free exercise of their rights plead through others representing them.
;Vde, art. 19 C. C. P.
Brown v. Pinsonneault (1); Bobillard v. Socield de .Construction (2); Valliers v. Drapeau
Now, as to the intervenant's remedy, we contend that [VOL. 117. his only legal remedy would have been to take an attachment by garnishment of these locomotives in the hands of the South Eastern Railway Company, and B. the trustees, and the appellants; and that certainly he could have no greater right, even if allowed to intervene in the present cause, than to ask that when the appellants had recovered possession of the engines, they should be ordered to hold them in the interest of the insolvent Barlow's creditors generally, or that the seizure avail as a conservatory attachment in the interest of all Barlow's creditors, or some conclusion of that nature.
But this he has not asked; he merely seeks to defeat appellants' action; and appellants submit that his prayer is not justified, and should be rejected.
O'Halloran Q.C. for respondents contended that there had been no sale, no price mentioned, no absolute vesting of the property in the appellants, and cited and relied on Cushing v. Dupuy (1); Grand Trunk Railway v. Eastern Townships Bank (2); as to the intervenant's claim it is clear that having proved Barlow's insolvency, plaintiffs cannot be entitled to the property of these locomotives in the possession of a third party as against the intervenant a judgment creditor of Barlow.
Sir W. J. RITCHIE C.J.-By their action the appellants, Fairbanks and his partners, sought to recover possession of ten locomotive engines, which they alleged had been sold to them by Bradley Barlow, one of the respondents, to secure them against the endorsement of three promissory notes, of the aggregate amount of fifty thousand dollars, endorsed at his request, and which had been renewed and the renewals taken up by them.
The suit was accompanied by a 10LG.Jur.
seizure and was directed as well against Barlow as against the South Eastern Railway Company, and again st Redfield, Farwell & McIntyre, trustees, under a statute of Quebec, 43 and 44 Vic. ch. 49.
The defendant, Barlow, made default.
The South Eastern Railway Company by their plea claimed the locomotives as their property, and denied having given Barlow any authority to sell or pledge them.
The trustees pleaded their possession and ownership under the statute of Quebec 43 and 44 Vic. ch. 49, having in good faith received the locomotives from the South Eastern Railway Company.
The railway company pleaded that the locomotives belonged to them, and never were the property of Barlow, nor was he ever authorized to sell or pledge the same. The appellants produced the title under which they claimed being a sous-seing privd document dated 16th January, 1883, which declares that Barlow sold them.
After a certain amount of evidence had been taken on these issues, the respondent, James O'Halloran, intervened, alleging that he was a creditor of Barlow, and denying any right,whether of ownership or authority, in Barlow to pledge the locomotives, or to guarantee them against an endorsement of his notes for $50,000; Barlow's insolvency long before the institution of the action; the non-delivery of the locomotive to the appellants, and a denial of appellants having any right to or lien or privilege on the locomotives, and his right as a creditor, to have the pretended sale or pledge declared invalid. He concluded that the plaintiffs be declared to have no lien on the locomotives, and that their action should be dismissed.
The plaintiffs claim is on two instruments, the one dated the 16th January, 1883, and the other the 10th of May, 1883, as follows:i$3 JoHNsoY, January 16, 1883. Hon. Horace Fairbanks and Hon. Franklin Fairbanks having endorsed for my accommodation two notes for twenty thousand . dollars each, one dated January 1st, 1883, and one dated January 10th, 1883, and payable in four months at the Bank of Montreal, and R one note of ten thousand dollars, dated January 16th, payable at the R Bank of Montreal, in three months from date, in considerati.n of the said endorsement, I have this day sold to the said Horace atid Franklin Fairbanks, ten locomotive engines of the make of the Rhode Island Locomotive Works, which I now own, and which I agree to deliver to the said Horace and Franklin Fairbanks on demand, to be held by them as collateral security for the payment of said notes at maturity, and when said notes are paid, the said ten locomotives are to be re-delivered to me.
(Signed),
May 10, 1883. Whereas, as appears by my agreement of the 16th of January, 1883, Horace Fairbank and Franklin Fairbanks endorsed for me certain notes to the amount of ($50,000) fifty thousand dollars, described in an agreement, signed by me, pledging ten locomotives as collateral security for the payment of said notes, the names of said locomotives now declared to be as follows: "C. W. Foster," "Bradley Barlow," "B.
"Newport," "North Troy," "A. B. Chaffee," "Richford," and "Farnham," said locomotives to be held as collateral security for the payment of said notes, or any renewals thereof, for value received.
(Signed),
As regards this document, I quite agree with Judge Cross that
It is obvious that it does not make any evidence of a sale, or that the transaction amounted to a sale.
It was a mere pledge of the locomotives in security for the appellants' endorsement of notes fox Barlow's accommodation.
A pledge that was wholly inoperative as against any party having an adverse interest in the absence of an effective delivery to and a lawful possession by the pledgee of the locomotives, the subject of the pledge.
The conclusions I deduce from the foregoing remarks, is that the appellants have shewn no grievance entitling them to relief in any respect from the judgment they have appealed; it must consequently be confirmed. . The appellants' claim is based entirely on the property being the property of Barlow. Assuming such to be the case, of which, on the evidence, I should very much doubt, then the appellants are out of court, and the conclusions taken by the intervention O'Halloran must prevail.
Whether the locomotives were owned by the railway company or by Barlow, who was insolvent, the plaintiffs proved no title to them, and no right to their possession, as against a bond fide creditor Barlow, which O'Halloran clearly was.
STnoNe J.-For the reasons given by the majority of the court below, I am of opinion that the appeal should be dismissed with costs.
J. :-Les Appelants, demandeurs en Cour Sup6rieure, out r6clan6 des Intimbs dix locomotives qu'ils all~guent leur avoir & donnhes en gage, par Bradley Barlow l'un des d~fendeurs, comme srLret6 du paiement d'un billet de $50,000 qu'ils ont endosse pour L'action allkgue que Barlow qui a repu le produit des billets endoss6s pour lui 6tait alors le g6rant de la dite compagnie et qu'il a disparu depuis pour se soustraire aux actions de ses cr~anciers.
Les Appelants font reposer leur droit sur les deux lettros suivantes (1).
La compagnie intim6e a plaid6 A cette action par d6fense au fonds en fait, et par exception p6remptoire que lorsque Barlow a fait les 6crits ci-dessus cit6s les locomotives en question 6taient la propriat6 et en la possession de la dite compagnie, et non celle de Barlow qui n'a fait les dits 6crits qu'en son nom personnel non pas comme le repr6sentant autoris6 de la dite compagnie.
Les autres Intim6s, Redfield, Farwell et McIntyre out plaid& qu'en leur qualit6 de fid6i commissaires, vertu d'un acte cr6ant un mortgage sur le South E. R., en favenr de ses porteurs de bons, la dite compagnie leur avait transport6 le dit chemin de fer et lear en avait confi6 l'administration, et que les locomotives en question qui se trouvaient alors faire partie du roulant & du dit chemin de fer 6taient aussi pass~es de bonne foi en leur possession, en leur qualit6 de fideicommissaires et qu'ils avaient droit de les retenir en vertu de l'acte de fid6icommis.
Ils ont aussi plaid6 le- statut autorisant la compagnie a constituer ce fid6icommis pour faire un emprunt.
Barlow mis aussi en cause comme d6fendour n'a pas plaid6.
La contestation 6tait li~e et la. preuve conmenche lorsque 1'Intimb O'Halloran prbsenta son intervention all6guant: lo, qu'il 6tait cr6ancier de Barlow en vertu d'un jugement; 2, que. longtemps avant 1'institution de 1'action des Appelants, Barlow 6tait insolvable et en diconfiture ; 3, qu'en admettant m~me la v6rit6 des all6gations de 'action des Appelants, ceux-cin'avaient en cons6quence de leur d6faut de possession aucun droit de propri6t6 ni privilige sur les dites locomotives A l'encontre des autres cr6anciers de Barlow.
Les Appelants ont r6pondu A 1'intervention par une d~negation g~n6rale et par une r6ponse sp6ciale allkguant qu'd 1'6poque de leur transaction avec Barlow, celui-ci 6tait solvable et en 6tat de disposer librement de ses biens; ils out aussi all~gu6 que leur transaction 6tait une vente avec droit de r6mbr6,-que l'intervenant agit de connivence et collusoirement avec la compagnie. Cette rdponse 6tait accompagn6e d'une d6fense en droit a 1'intervention, soulevant des questions qui ne pouvaient aucunement affecter l'issue en cette cause et elle a t6 renvoy6e.
Les diff6rentes contestations li~es entre les parties soulvent les. questions suivantes : 1. Lors de la transaction du 16 janvier 1883, Barlow 6tait-il solvable et les locomotives en question lui appartenaient-elles ? 2. La transaction du 16 janvier 1883 constitue-t-elle un contrat de vente ou n contrat de gage?
AO.
Les Appelants apris avoir dans leur declaration qualifi6 la transaction du janvier comme un contrat de gage se sont d~sist6s de cette pr6tention par leur r~ponse sp6ciale & 1'intervention.
l'ont 6galement abandonn6e par leur factum dans lequel d. la page ils donnent de fortes bonnes raisons pour d6montrer 1'erreur de cette pr6tention; d'abord, qu'ils n'6taient pas or6anciers pouvant prendre un droit de gage, et ensuite que 1'intention des parties n'avaient pas t de faire un contrat de gage, parce que ce contrat aurait exig6 la remise par Barlow aux Appelants de la possession des locomotives.
Apris une enqute assez consid~rable, la Cour Sup6rieure, aprbs audition sur le mirite de 'action et de l'intervention seulement, a rendu le 12 mars 1885, jugement d~clarant que les Appelants n'avaient pas prouv6 leur droit de propri&t, et que la transaction all6gu~e n'6tait qu'une vente simule pour obtenir un privilege sir les locomotives, sans donner la possession. Elle a maintenu 1'intervention et renvoy6 1'action des Appelants.
Ce jugement port6 en appel A la Cour du Banc de la Reine a 6t6 confirm&.
Les Appelants ont produit plusieurs timoins pour prouver que Barlow 6tait le propri6taire des locomotives en question.
Aprbs en avoir dispos& comme de sa propri~t6 personnelle, Barlow ne pouvait gu~re faire autrement que de d6clarer comme il 'a fait dans son t6moignage, que ces locomotives lui appartenaient. Mais le contraire de cette pr6tention a 6t6 d6montr6 par les faits prouv6s par lui-mime dans ses transquestions et par le t6moignage de A. B. Chaffee, le secr6taire-tr6sorier de la compagnie South Eastern Railway, dont Barlow 6tait le president et le g~rant gbn6ral. Tous deux 6tablissent que tous les argents provenant soit de Pexploitation du chemin de fer, soit d'emprunts, 6taient d6pos6s au cr6dit personnel de Barlow et pay6s par lui sur son propre chque. I achetait tout ce qui 6tait n6cessaire pour le chemin de fer, m~me le droit de passage et prenait les titres en son nom. avait aussi fait mettre en son nom le compte pour 1'achat des locomotives; mais elles furent envoy6es directement de la manufacture sur le chemin de fer de la compagnie qui en paya le fret. Elles furent, pendant plusieurs ann~es, employees comme propri6t6s de ]a compagnie, sans aucune convention de loyer on de paiement pour leur usage. Jamais Barlow n'61eva la pr6tention d'en stre le propri~taire, avant sa fuite de la province de Qu6bec vers le 5 d'ao-ht 1883.
Au contraire, dans les rapports faits au gouvernement par la compagnie et sign6s par Barlow, comme pr6sident, elles sont mentionnies comme faisant partie des proprit~s de la compagnie. Dans un autre 6tat desbaffaires de la compagnie, pr6par6 sous la direction de Barlow pour la n6gociation d'un emprunt avec Stephens et autres, ces m~mes locomotives furent comprises comme faisant partie du rolling stock de la compagnie. En cons6quence les cr~anciers de la compagnie avaient droit de les consid6rer comme faisant partie du chemin de fer, et la conduite de Barlow 6tait de nature & les confirmer dans cette croyance. La pr~tendue vente que leur en aurait fait Barlow ne peut avoir aucun effet quelconque parce qu'il n'6tait ni propri6taire ni en possession, qu 'au contraire la compagnie en avait la possession ouverte et publique.
La pr6tendue vente 6tant d'une chose qui n'appartenait pas au pr6tendu vendeur Barlow et dont il n'a jamais fait la tradition, est absolument sans effet 1'6gard de la compagnie (1) qui en 6tait en possesion.
Quant au caractbre de 1'6crit dont les Appelants inf6rent maintenant une vente apris 1'avoir trait6 comme un contrat de gage dans leur d6claration, je le considbre absolument sous le m6me point de vue que 1'ho- Fournier . norable juge Cross qui, dans ses notes, en parle dans les termes suivants
L'intervenant, ayant 6tabli sa qualit6 de cr6ancier vertu d'un jugement obtenu par lui contre Barlow la Compagnie du South Eastern Railway, avait droit d'intervenir dans cette cause pour sauvegarder ses intlrits en faisant maintenir la dite compagnie, sa d6bitrice, dans la possession des locomotives rclam~es. Je suis d'avis que 1'appel doit 6tre renvoy6 avec d6pens.
HENRY J.-I am of the opinion from the evidence afforded by the documents that the appellants were but the pledgees and not the bond fide owners of the locomotives in question, and that inasmuch as they had not, as such pledgees, the possession of them they cannot maintain this action, and that as the question of the ownership of them as between O'Halloran and the South Eastern Railway Company does not arise on the pleadings in this case, it is unnecessary I think to refer to it. The appellants, to recover, must show their rights to do so, and in that they have, in my opinion, failed.
The appeal should, therefore, be dismissed with costs.
J.-The appellants were plaintiffs in the court 6f prenidre instance.
The respondents are the South Eastern Railway Company, William Farwell, Win. C. Van Horne, and Warren Blodgett in their quality as trustees of the bondholders of the South Eastern Railway, who were defendants with Barlow, and the intervenant, James O'Hal- ,h. loran, a judgment creditor of Barlow. The plaintiffs allege that defendant Barlow obtained their endorsation to promissory notes to the amount of $50,000, and for their security, pledged to them ten locomotives then and still used and operated on the South Eastern Rail. way, but never delivered the locomotives to plaintiffs. That said locomotives are in the possession of said railway company or the trustees of its bondholders, and that plaintiffs having a lien on said locomotives are entitled to demand and have the same out of the possession said railway company .or said trustees, inasmuch as they have had to pay said notes;
unless said defendants prefer to pay said sum of $50,000, interest and costs.
They also allege that Barlow, who had received the money on said notes, was president and general manager of the South Eastern Railway, at the time, and that he has since absconded.
Plaintiffs' action is accompanied with an attachment, saisie-arret conservatoire.
Plaintiffs action is based on the following documents (1)
To this action the South Eastern Railway Company pleaded:- 1. A general denial.
2. That at the time when the plaintiffs allege that the foregoing letters of pledge were made to them by defendant Barlow, the ten locomotives claimed to have been pledged to plaintiffs, were the property the South Eastern Railway Company, and not Barlow, who had no property or ownership in said locomotives.
That as appears by said letters and plaintiffs' declaration, Barlow, in his transaction with plaintiffs, was acting solely in his private individual capacity, and not as an officer of the South Eastern Railway Company, and that any transactions which Barlow may have had with plaintiffs was without the knowledge, consent or authority of said railway company. They conclude that this attachment be quashed, and plaintiffs' action dismissed.
The plaintiffs have adduced a large amount of evidence to prove that the locomotives were Barlow's; and Barlow himself as a witness for plaintiffs, swears that six of them, at least, were his. But his own cross-examination and the evidence of defendant's witness, A. B. Chaffee, fully disposed of his pretentions.
He was president and general manager of the company.
All monies belonging to the company, whether derived from earnings or loans, were placed to his credit individually, and he disbursed them as he pleased.
He was in the habit buying for the company even real estate for right way and other purposes, and taking the deeds in his own individual name. He appears to have taken bills of sale of the locomotives in question in this manner, but they came directly from the manufacturer to the company's road, the company paid freight, and never until Barlow, on or about the fifth August, 1883, absconded from this province, was any pretension made by Barlow or any one else, that these locomotives were not the property of the company. Plaintiffs allege in their declaration that they never obtained possession of the locomotives, but that they then (at the time of the institution of the action) were in possession of the defendants, the South Eastern Railway Company or the Trustees of its bond holders. There is no pretense that Barlow had any authority from the railway company to pledge the locomotives, [VOL. 11V. or that the railway company ever received a dollar of the proceeds of the promisory notes.
The question of the ownership of these locomotives seems to me quite immaterial if the determination the present case, and on the general issue alone, the plaintiffs' action must fail.
By the very documents upon which the plaintiffs base their claim, it is patent that there was no sale by Barlow of these locomotives.
They moreover admit it, for their own declaration in this case is based on the ground that there was no sale to them. They do not claim these locomotives as their property, they do not revendicate them as theirs; they purely and simply allege that they have a lien upon them. That is as clear an admission as possible that they do not own them, and that they did not purchase them.
Now if these documents did not operate a sale, if they did not vest the ownership of these locomotives in the plaintiffs, did they operate as a pledge in their favour ? Clearly not. Since there can be no pledge without the delivery of the article pledged in the hands of the pledgee.
This delivery is of the essence of the pledge, and the pledgee has no privilege if the article is not in his hands.
The plaintiffs are therefore not entitled to the possession of these locomotives, and their action was rightly dismissed by the two courts below.
There is no ground for the contention that their action can be maintained because they might be entitled as against Barlow to the specific performance of his obligations to deliver them up, the said locomotives; for the gist of their action against the South Eastern Railway and the Trustees, is that Barlow is not in possession of these locomotives.
As to the intervention, it was rightly allowed. O'Halloran had a clear right to intervene to protect YOL.