Per Strong and Henry JJ.-That the court had no power to appoint an arbitrator or valuator to make the valuation provided for by the agreement after the refusal by the company to appoint their arbitrator.
Fournier J. contra.
APPEAL from the judgment of the Court of -Queen's Bench for Lower Canada (Appeal side) confirming the judgment of the Superior Court.
On the 18th November, 1864, the Corporation of the City of Quebec passed a by-law, under the authority Sir W.J. Ritchie C.J., and Strong, Fournier, Henry, Taachereau and Gwynne JJ, of 27 Vic. c. 61, intituled " A by-law allowing the Quebec Street Railway Company to construct a Railway QUEBEc in certain streets in the City of Quebec," by which RY. powers were, subject to certain restrictions and con- . ditions, conferred upon the company appellant, to build and operate a railway in the streets mentioned therein; and by the 25th section of the by-law, it was enacted:
The privilege hereby granted to the said Company shall extend over a period of forty years, from the date hereof, but at the expiration of twenty years, the said corporation may, after a notice of six months to the said Company, to be given within the twelve months immediately preceding the expiration of the said twenty years, assume the ownership of the said Railway, and of all real and per. sonal property in connection with the working thereof, and on the payment of their value, to. be determined by arbitration, together with ten per cent. over and above the value thereof.
And the 30th section provided :
This present by-law shall not come into force and effect until an agreement based upon the conditions and provisions herein mentioned, shall have been executed by a notarial deed entered into by and on the part of the said Company and the said corporation, on whose behalf the Mayor is hereby authorized to sign the said agreement.
On the 9th February, 1865, the Corporation of Quebec and the Quebec Street Railway Company executed a notarial agreement in accordance with the 30th section of the by-law, embodying such by-law and containing the above cited 25th section in these words:
That the privilege granted to the said Company by the said bylaw and by the present deed, shall extend over a period of forty years from the date hereof, but at the expiration of twenty years, the said corporation may, after a notice of six months to the said Company, to be given within the twelve months immediately preceding the expiration of the said twenty years, assume the ownership of the said Railway, and of all real and personal property in connection with the working thereof, and on payment of their value to be determined by arbitration together with ten per cent. over and above the value thereof.
The rights and privileges of the company thus extended for forty years, from the 9th February, 1865, unless terminated in the manner provided by the bylaw and agreement.
On the 9th January, 1884, the Corporation of the city o*
Quebec gave notice to the company that it intended to aval itself of the right stipulated in its favor by the bylaw, to assume possession of the railway; but subsequently they gave a second notice on the 21st November, 1884, whereby it informed the company that the previous resolution and notice was annulled, and that after the 9th February, 1885, at the time and in the manner provided by the by-law, it would assume the possession and ownership of that part of the railway in question situate within the city limits, and of the real and personal property in connection with the working thereof, and would be prepared to pay the value thereof, together with ten per cent over and above, as established by arbitrators; and by the same notice the corporation notified the company of its nomination F. X. Berlinguet as its arbitrator, and called upon it to name an arbitrator to value the property conjointly with Berlinguet: to this notification no attention was paid by the company, and on the 9th May, following, Berlinguet proceeded alone to value that part of the company's property situated within the limits of the City of Quebec, which he estimated at a sum of $23,806.30 and his award was deposited with a notary and signified to the appellants on the 18th May, 1885.
Three days afterwards legal tender of this sum with ten per cent. added was made to the appellants and on its being refused an action was instituted, by which after reciting the several statutes, by-laws, contracts, tenders, the corporation concluded that the tenders be declared good and valid; that it be adjudged that it had a right to take possession of the road, horses, harnesses, cars, &c., and that such judgment serve as a title hereto, in favor of the corporation.
This action was dismissed by the Superior Court on the ground of insufficient notice.
The Court of Queen's Bench for Lower Canada (appeal side) confirmed this judgment on other grounds, but the majority of the court expressed C" ' the opinion that the notice was sufficient, the same having been given within the year but not within the first six months of the year in which the term of twenty years had expired; and the recourse the city corporation was by the last mentioned judgment reserved.
The respondents then brought a second action, claiming that the appellant should be held bound to proceed with the arbitration; that in default of their naming an arbitrator, one should be named by the court on their behalf; and on an award being rendered, upon payment of the amount of the award and ten per cent. in addition, the respondents should be authorized to take possession of said railway and property of the appellant company situate within the limits of the City of Quebec, and that such judgment should operate a title in favor of said respondents.
To this second action, the appellants pleaded sub stantially as in the former action:
1. Want of sufficient notice.
2. That in connection with the railway they, the said company, owned a large amount of real and personal property, and that a large amount of their said property was without the city limits.
That if the City Corporation had a right to take the railway which was desired, they must take the whole railway and all the property in connection therewith. That there was no power to force the Street Railway Company to name an arbitrator or to proceed with the arbitration.
Upon these issues, Casault J. presiding in the Superior Court, whilst stating that his opinion as to the insufficiency of the notice remained the same as when he delivered the judgment in the first- action, considered himself bound by the opinion of the Court of Queen's Bench and gave judgment in favor of the respondents. This judgment being confirmed by the Court of Queen's Bench for Lower Canada (Appeal side) the Quebec Street Railway Company appealed to the Supreme Court.
Irvine Q.C. and Stuart for the appellants contended: 1. That the notice could only be given in the first six months of the twentieth year, that is between the 9th February, 1834, and the 9th August, 1884, and must have been to the effect, that on the 9th February, 1885, the Corporation would assume the ownership. Conditional obligations, dependent upon the will of the person in whose favor the obligation is contracted, must always be performed in forma specificd et indivisi. biliter. Larombiere, Obligations (1).
The court had no power to force the company to appoint an arbitrator.-The condition of the contract between the parties, gives, upon fulfilment of its provisions, to the corporation the right to purchase the property of the appellants, at a premium of ten per cent. over the price fixed by arbitrators.
No contract of sale is valid unless the price be fixed, or be susceptible of being established, by the joint consent buyer and seller.
Troplong ; Duranton (3); Delvincourt (4); Laurent (5) ; Duvergier ; Marcad6, on C. N. Art. 1562 (7); Aubry & Rau (8).
The remedy of the corporation, if there has been a breach of contract on the part of the appellants, is in damages.
3. That the corporation was obliged to tender for all the real and personal property in connection with the . working thereof, not for a part only.
Nothing was offered for a considerable part of the plant and the necessary buildings because situate outside of the city limits.
P. Pelletier Q.C. for respondents contended:
1. That the corporation could give the said notice at any time within the twelve months preceding the 9th February, i885, but the possession of the railway could not be obtained by the corporation before the 9th February, 1885, and if the notice was given at a date not leaving six months up to the 9th February, 1885, then the full space of six months was to be allowed between the notice and the taking possession of the railway.
The appellants having agreed to settle their rights by way of arbitration, it was not competent for them to escape their obligation by refusing to appoint their own arbitrator.
The jurisdiction of the Superior Court in the Province of Quebec is unlimited to enforce the contracts between the parties. Such jurisdiction is paramount to the obligations of the contracting parties.
It is a remedial power even for cases not provided for.
As to tendering for property outside of the city limits the respondents could have no control and the, portion to be taken possession of, contemplated by the by-law and contract, was the portion of the railway within the city limits.
Sir W. J. O.J.-To my mind it is clear that " after a notice of six months to the said company, to be given within the twelve months immediately preceding the expiration of the said twenty years," means that the company are entitled to a full six months notice before the expiration of the twenty years, and that such six months must be within the twelve months immediately preceding the expiration of the twenty years.
this no such notice of six months was given within the Ritchie C.J.twelve months, the notice given having been on the 21st November, 1884, which clearly was not a six months notice within the twelve months, the expiration of the twelve months being on the 9th February, I think the judgment of the Superior Court in the first action, which held the notice insufficient, was clearly right and should be restored.
I think it very clear that the right to assume the road was to be at the expiration of twenty years and at no other time. It is a mistake to say the corporation have the whole year to give the notice: they are bound to give such a notice as will entitle them. to assume the road at the expiration of twenty years; the express provision and privilege is, that at the expiration of twenty years the corporation may assume the ownership, but they cannot do this unless a notice 'of six months has been given within the twelve months immediately preceding the expiration of the said twenty years; if they fail to give such a notice the right to assume the ownership of the road at the expiration of twenty years ceases; so long as they give the six months notice within the twelve months they are all right, the six months having referefice to the expiration of the twenty years; there was no other time contemplated or fixed for the termination of defendants', or the assumption of plaintiffs', rights in the road but the expiration of the twenty years.
The notice given was on the 21st November, 1884, [YOL. XV. that they would on the 9th February, 1885, assume the possession and ownership, &c.
How can this be a good notice in any view of the by-law ? It is no notice of six months within the twelve months, nor any notice of six months at all. The notice of the 21st of November, 1884, that on the 9th of February, 1885, they would assume, is only a notice of two months and nineteen days.
CJ. The only right the plaintiffs had was to put an end to the defendants' rights on the expiration of twenty years and from that date to assume the ownership, and if they failed to give the notice necessary to accomplish this they failed to avail themselves of the privilege accorded them by the agreement and by-law.
J.-Under the authority of an act of the
Legislature of the late Province of Canada (27 Vic ch.
61) by which the present appellants (defendants in first instance) were incorporated, the City of Quebec passed a by-law, authorizing the company to lay down rails in the streets of Quebec and amongst other things providing as follows:- This by-law further provided that the railway was not to go into operation until
A notarial deed embodying an agreement of the same tenor and effect was accordingly duly passed on the 9th February, 1865.
The 20 years therefore expired on the 9th February, 1885.
On the 21st *.
November, 1884, the respondents gave notice that they would take possession of the railway and its property under the expropriation clause mentioned on the 9th February, 1885, that is, within three J.months from the date of the notice, and by the same notice the corporation appointed Mr..F. X. Berlinguet as its arbitrator to value the property according to the provision of the by-law and called upon the company to name an arbitrator to make the valuation conjointly with Mr. Berlinguet.
The company did not appoint any arbitrator and on the 9th May, 1885, Berlinguet proceeded alone to value that part of the company's property situated ^within the limits of the City of Quebec which he estimated at a sum of $23,806.30, and his valuation or award to that effect was deposited with a notary and signified to the appellants on the 18th May, 1885.
Three days afterwards the respondents caused this amount of the valuation with 10 per cent. additional to be tendered to the appellants through the ministry of a notary. They then instituted an action offering to consign the amount of Berlinguet's valuation and the 10 per cent additional and concluding for a declaration of their title, and of the right to the possession of the property.
To this action the appellants pleaded a defence in law (demurrer) and a perpetual exception and on the 8th February, 1886 the Superior Court, presided over by Mr. Justice Casault, rendered a judgment dismissing the action the ground that no notice of sii months within the twelve months immediately preceding the expiration of 20 years from the date at which the by-law came in force had been given according to the requirements the by-law and the notarial deed executed pursuant to [VOL, 17, its terms.
The corporation appealed to the Court of Queen's Bench which latter court affirmed the judgment the Superior Court but upon other grounds from those which had formed the "consid6rants of the judgment pronounced by Mr Justice Casault.
The respondents then instituted the present action in which they repeated the, allegations of their former s action and in addition the facts that the first action had been instituted and that the judgment already mentioned had been rendered therein and they 6oncluded that the company be ordered to name an arbitrator to value jointly with the one named by the corporation the property of the company, situated within the city limits. and in default of its so doing that the court should itself name an arbitrator to act for the company and that upon the payment of the amount to be awarded and 10 per cent. in addition the corporation should be authorized to take possession of such property situate within the limits of the city of Quebec and that such judgment should be declared to operate as a title in favor of the corporation.
To this action the appellants pleaded, (1) That the company had failed to give the six months notice required by the by-law and agreement; that by the notice stated in the action the company only proposed to assume and pay for so much of the company's property as was comprised within the limits of the city of Quebec' whilst the company had in accordance with its powers in that behalf extended its line beyond the city limits and had other property beyond the limits which the city if entitled at all were bound to include in any expropriation under the by-law and agreement.
The appellants pleaded a defence en droit, or demurrer, by which they denied the legal sufficiency of the notice set forth in the action, excepted to the power XV.]
and jurisdiction of the court to appoint an arbitrator for them, and insisted that the acquisition of the railway and its works and property would be ultra vires e.
of the corporation.
Upon issues taken on these pleas and defences the parties went to trial before Mr. Justice Casault who, whilst stating that his opinion as to Lthe insufficiency of the notice remained the same as Strong J. when he rendered judgment in the first action, considered himself bound by the opinion of the Court of Queen's Bench and therefore rendered a judgment by which the company were ordered to appoint an arbitrator within 15 days. This judgment having been affirmed by the Court of Appeal, two judges (Mr. Justice Baby and Mr. Justice Church) dissenting, has now been appealed from to this court.
I am of opinion that the notice of the 21st November, 1885, was too late. -The clause of the by-law and of the agreement executed in pursuance of it, already set forth, clearly contemplate that the assumption of ownership by the corporation shall be at the expiration of 20 years from the date at which the by-law took effect and not later. It is not disputed that the by-law came into force on 9th February, 1865, and that the years consequently expired on the 9th February, 1885. The corporation being in law bound to the utmost exactitude as to time in executing this unilateral clause, were therefore bound to show that they were in a position by a strict and literal observance of all prerequisite conditions to claim the right to assume the ownership on this 9th February, 1885.
Then what were the pre-requisites?
1st. They were bound to show that that they had given a notice within twelve months immediately preceding the expiration of the 20 years. The only notice given within that period was the notice of the 21st November, 1884. 2ndly, they had to prove that at the time they claimed the right to assume the ownership of the railway, at the end of the 20 years, they did so after having given to the company a notice of six months. Then, do they show that on the 9th February, 1885, they had given a six month's notice ? The only available notice they show, that is the only notice given within the immediately preceding twelve months, is that of the 21st
November, 1884. But this notice had not been given six months before the 9th February, 1885, and as no other notice is suggested to have been given within the twelve months the corporation wholly fail to establish that they have complied with these preliminary requirements and conditions upon which alone they could claim to exercise the unilateral right of pre-emption or expropriation conferred by the by-law and agreement.
That an option of purchase of the kind given to the corporation in the present case, being a condition potestative, must be executed literally and strictly as to all its terms and conditions, including time, appears well established both by French and English authorities; Pothier on Obligations (1); Demolombe on Contracts (2); Larombiere (3); Fry on Specific Performance
(4) ; Austin v. Tawney (5) ; Brooks v. Garrod
Upon this ground alone the appellants are therefore entitled to succeed.
Further, it appears very clear that the great weight of French as well as English authority is against the respondents as regards the right of the court to appoint an arbitrator or valuator to make the valuation provided for by the agreement.
It is universal and elementary law that the price is the very essence of the contract of sale and that no such contract can be XV.]
considered as completed unless either directly indirectly the parties are agreed as to the amount and terms of the price.
A valuation by an arbitrator ap- .
pointed by the corporation and one appointed of office by the court for the company after their refusal to appoint one for themselves would not involve any such agreement as to the price as the law absolutely re- Stro
J. quires.
It is not therefore surprising to find the best commentators almost universally of accord against such a jurisdiction. The jurisprudence of the French courts is also the same way. I refer to the following authorities on this point: Troplong, Vente (1); Duranton ; Delvincourt (3) ; Laurent (4) ; Zachariae par Mass6 & Verg6 (5); Marcad6 on art. 1592 (6); Aubry & Ran (7); Taulier ; Alauzet, Code de Commerce (9); and the jurisprudence is to the same effect in Dalloz Jur. Gen. Vente, 380-D. P. 62 1-242 note; Limoges 4 April, 1826, Jur. Gen. Vo. Vente, 381-10; Toulouse, 7 March, 1827, Jur. Gen. Vente, 381-20; Paris 6 July, 1812, Jur. Gen. Vol. Vente, 382 (motifs); Montpellier, 13 February, 1828 ib., 195; Jur. Gen. Vente, 380, Trans-Hy., 94, 95, D.P. 62, 1, 242 notes; Jur. Gen. Vente, 378; Pau 30 November, 1859, D.P., 60, 36.
The English authorities are decisively to the same effect : 1Vilnes v. Gery (10) ; Derby v. Whittaker ; Tillett v. Charing Cross Bridge Co. (12).
The provisions in the English Common Law Procedure Act as to the appointment of arbitrators by the court in default of an appointment under a contract do not apply to mere valuers Collins v. C. (13) ; Fry on Specific Performance (14). The circumstance that art. 1592 C. N. has SUJPREME COURP OF CANADA.
not been textually re-reproduced in the C. C. of Quebec can make no difference.
There is nothing in the code indicating that there was any intention to alter the law in such an important and radical particular as that which regards the price as an essential of the contract of sale, the rule which is the foundation of this objection. Therefore I think the appellants are entitled to have the judgment appealed against reversed upon J. this ground also.
The objections that the corporation do not propose to assume all the company's property, and that insisting that the by-law and agreement as regards the clause reserviAg an option of purchase was ultra vires of the corporation, need not be considered and I express no opinion on those points.
The appeal should be allowed with costs and the action dismissed with costs to appellants in both the courts below.
FOURNIER J.-Le 18 novembre 1864, la corporation de la cit6 de Qubbec a adopt6 un (by-law) r~glement au sujet de la construction d'un tramway dans ses limites.
Ce r~glement est textuellement ins6r6 an long dans le contrat notari6 intervenu entre la cit6 d'une part et la compagnie appelante de l'autre, par laquelle cette dernibre s'obligeait h construire le tramway dont il
6tait fait mention dans le r6glement et le contrat aux conditions et stipulations 6nonc6es dans ces deux documents.
Ces stipulations ont non-seulement la force d'un r~glement municipal, mais elles ont de plus le caractbre obligatoire d'un contrat pass6 en forme authentique.
La clause de ce r~glement donnant lieu, pour la deuxiame fois, i un .litige entre les parties, sur les m6mes questions, est identiquement la mgme que celle contenue dans le contrat, et elle eat conque dans les termes suivants:- La corporation de la cit6 de Qu6bec, aprbs l'avis de six mois requis par le contrat et le r~glement, intenta une premiere action fond6e sur une sentence arbitrale rendue par 1'arbitre nomm6 par la dite. corporation, aprbs le refus de 1'appelante de nommer son arbitre pour proc6der A 1'arbitrage pourvu pax le dit r~glement. L'honorable juge Cross a, dans ses notes sur cette cause, donn6 1'historique de la premidre action, faisant voir pour quels motifs elle a t6 renvoy6e par la Cour Sup& rieure, dont le jugement a t6 confirm6 par celle du Banc de la Reine, A 1'exception de la partie du dit jugement d6clarant que l'avis donn6 n'6tait pas suffisant, la cour du Banc de la Reine d6clarant, au contraire cet avis suffisant et rbservant A la dite corporation son recours pour une autre action.
Par sa deuxibme action la dite corporation d~sirant faire executer la convention au sujet de 1'arbitrage demande qu'il soit ordonn6 A la dite appelante de nommer un arbitre, et qu'd son d6fant de ce faire il en soit nomm6 un par la cour, etc.; que sur paiement du montant qui serait accord6 par la sentence arbitrale, avec dix par cent en outre de ce montant, la corporation serait autoris6e a prendre possession du tramway et des autres propri6t6s en faisant partie, situbs dans les limites de la cit6 et appartenant A la dite appelante et que le jugement vaudrait titre A la dite corporation. La compagnie appelante a de nouveau plaid6, lo 1'inpuitsance de 1'avis donn6; 2o que la corporation de la cit6 de Quebec n'avait le droit de poss6der ni d'exploiter un tramway comme propri6taire; 3o qu'elle avait pour l'exploitation du tramway des propri6t6s mobilibres et immobilibres dont une grande partie 6tait situ6e en dehors des limites de la cit6; que si la dite cit6 voulait ,O 0 prendre possession du tramway elle devrait aussi prendre possession de toutes les autres propri~t6s qui en faisaient partie; 4o que la dite compagie ne pouvait 16galement Atre contrainte A nommer un arbitre ni A procder A l'arbitrage.
La principale question est sans doute celle de la suffisance de l'avis requis pour mettre fin au bail fait par le r~glement.
La disposition du r~glement A cet
6gard a donn6 lieu A une diff6rence entre les deux cours appelbes
A juger cette cause.
L'hon. juge
Casault de la Cour Sup6rieure a maintenu que
1'avis pour Atre 1gal devait Atre donn6 au moins six mois avant 1'expiration des derniers douze mois de la 20me ann6e.
La majorith de la cour du Banc de la Reine a d~clarT au contraire que 1'avis tel que donn6 6tait suffisant.
La clause du riglement dit:
Mais au bout de vingt ans, la dite corporation aura le droit, aprbs un avis de six mois donn6 A la dite compagnie dans les douze mois qui pr6chderont imm~diatement 1'expiration des dites annbes, de prendre, etc.
Les premibres 20 ann6es du bail devant se terminer le
9 f&vrier 1885, 1'avis fut donn6 le 21 novembre
1884, par cons6quent avant I'expiration des derniers douze mois.
Il n'y a qu'une condition d'impos6e A la formalit6 de 1'avis, c'est qu'il sera donn6 dans les derniers douze mois; la partie oblig6e A le donner a done jusqu'A la dernire minute des douze mois pour donner son avis, et pourvu qu'il soit signifi6 en dedans des douze mois.il est lgal. Le d6lai pour le donner n'est pas de douze mois, moins six mois, comme ce serait le cas si 1'avis en question devait, comme on 'a pr6tenclu,
Atre signifi6 six mois entiers avant 'expiration des douze mois
La clause ne contient aucune expression Ry.
Co.
qui puisse justifier une interpr6tation qui r~duit aux o.
premiers six mois de la dernidre ann6e le d6lai pour donner avis. Il est clairement de douze mois. I est QCIT vrai que dans le cas actuel l'avis 6tant donn6 le 21 novembre, les six mois de d6lai qu'il comporte n'expi- Fournier J. reront qu'apr~s la 20e ann6e 6coul6e.
Mais ce sont les * termes de la convention qui le veulent ainsi. Les parties ayant jug6 , propos de la conclure de cette manire sans doute parcequ'elles ont pr6vu qu'il ne pouvait en r6sulter aucun inconv~nient.
La convention, fait remarquer 1'honorable juge Cross, n'oblige pas A donner 1'avis dans les premiers six mois:
On the contrary, it in effect says that it may be given at any time within the whole year, and, therefore, up to the last day of the year. Les arguments faits par 1'honorable juge Cross pour soutenir 1'opinion du Banc de la Reine sur la suffisance de 1'avis me paraissent tellement concluants que je crois devoir en citer la plus grande partie:- It is not like the case of a lease, where the law provides for its continuance by regular stated annual terms, and in the absence of a specific agreement, requires as a condition precedent to the tenant's right to continue, a pture notice of a period whose limit is fixed by law, and in default whereof, the law prescribes as a penalty against the lessor and in favor of the lessee, that the lease shall continue for another year.
The parties in this instance had in view the termination of their relations at the end of twenty years; that was the main object of the stipulation but it did not necessarily follow that these relations should absolutely cease on the very day of the termination of the twenty years; on the contrary, much necessarily remained to be done after the expiry of the twenty years, in the valuation of the property, the payment of the price with its augmentation, and other like matters, before the relations established between the parties could effectually cease; and this especially required time on the part of the Street Railway company. Hence when the City Corporation had expressly the whole year in which to give the notice, the Street Railway Company could always claim the six months delay after the notice, although it may have carried them nearly six %9ntbs into the following year. So that although the Street Railway Ces motifs me paraissent suffisants pour soutenir la d6cision de la cour du Banc de la Reine A laquelle je Fournier crois devoir donner mon concours.
Quant , la question du pouvoir de la corporation de poss6der et d'exploiter le tramway en question, il est tout-A-fait inutile de s'en occuper sur cette contestation, bien que 1'acte 27 Vict., ch. 61, ne laisse gubre de doute A ce sujet.
Le droit de s'en faire mettre en possession est seul mis en contestation aujourd'hui.
Lorsque la corporation voudra exploiter le dit tramway, il sera temps alors de s'occuper de l'6tendue des pouvoirs que la loi lui a conf6r6e A cet 6gard.
Quant A 1'6tendue des propri6t~s mobilires et immobilibres qui devaient 6tre comprises dans l'6valuation qui devait en 6tre faite par l'arbitrage, elle est determin~e par 1'acte notari6 pass6 le 9 f6vrier 1865. Elle doit se limiter A cette partie du tramway qui est situ6 dans les limites de la cit6. Ni le r~glement ni le contrat ne donne A ce sujet aucun pouvoir A la corporation.
Quant aux propri6t6s mobilires qui devaient Avalu6es comme d6pendances du tramway, cela doit Atre laiss6 A la d6cision des arbitres. Sur la validit6 de la clause par laquelle les parties se sont engag6es A r~f6rer & arbitres la question d'6valuation du tramway et des propri6t6s mobilibres de la compagnie, la majorit6 de la cour du Banc de la Reine s'est formellement prononce tout en admettant, comme l'a fait l'hon. juge Cross, qu'il y divergence d'opinion parmi les auteurs. Mais comme le fait observer ce savant juge, la raison semble 6tre tout-A-fait du c6t6 de YOL. IV.]
ceux qui maintiennent que cette clause pent Atre mise en force.
Les autorit6s cit6es par l'appelante dans son factum pour prouver 1'impossibilit6 de la mettre A V, ex6cution n'ont pas d'application an cas actuel. Elles ne concernent que le cas d'une vente dans laquelle un vendeur et un acheteur ayant promis de laisser la fixation du prix de vente d la d6cision d'un tiers, la ' question s'61ve au sujet de la l6galit6 du consentement indispensable 6 la validit6 de la vente. II ne s'agit pas ici d'une vente, car la proprit6 (les rues de la cit6) qui fait le sujet de la clause compromissoire est inali6nable. Il n'y a pas en et il n'a pu y avoir vente par 1'intim6e des rues de la cit6 dont elle a permis l'usage A l'appelante pour un certain nombre d'ann6es. Cette propri6t6 est inali6nable de sa .nature. La transaction dont il s'agit ne peut 6tre tout au plus qu'un bail dont la consid6ration reque par la cit6 serait la facilit6 des communications offertes aux citoyens pour les transporter en ville.
est pourvu qu'a son expiration la corporation reprendra possession du tramway et de ses d6pendances en remboursant la compagnie appelante avec en outre dix pour cent. Ce n'est pas une vente, la rue n'a pas 6t0 vendue, c'est une simple resolution de la convention qui permet A 'intim6e de rentrer dans sa propri6t6 en indemnisant la partie d6poss6d6e de ses frais de construction. La somme A payer n'est pas un prix de vente, puisque l'appelante pr6tend que 1'intim6e ne peut poss6der le chemin en question.
Ce n'est tout au plus qu'une indemnit6 pour les travaux de l'appelante.
La propri6t6 devant retourner A 1'intimbe, au bout de 20 ans, rien n'6tait plus rationnel et plus conforme aux usages judiciaires du pays que de convenir, comme on l'a fait dans le cas actuel que ce serait en en payant la valeur qui sera estimbe par arbitrage, et, de plus,'dix pour cent de la valeur ainsi estim6e.
Comme oule voit il ne s'agit nullement de vente et les autorit6s cit6es par l'appelante portent A faux. Il s'agit ici seulement de la validit6 de la clause par laquelle les parties sont convenues que leur contestation au sujet de . l'6valuation A faire serait jug6e par des arbitres.
Cette clause est-elle valable?
Il y a divergence d'opinion A ce sujet entre les auteurs, comme l'a fait observer Fo-r 1'honorable juge Cross.
Aussi, je ne me propose pas d'entrer dans la discussion des raisons donn6es de part et d'autre-ce travail est fait-je me contenterai de n'en citer que les parties qui font voir, comme 1'a si bien dit 1'honorable juge Cross, que la raison est du c6t6 de ceux qui soutiennent la validit6 de cette clause.
Voir Dalloz, Rep. de Jurisprudence (1). Mais en supposant que la transaction puisse 6tre consid6r6e comme une vente dont le prix doit 6tre laiss6 A 1'arbitrage d'experts qui seront nommis ult6rieurement, la clause est valable, comme le prouve Dalloz
Je suis d'avis de confirmer le jugement, mais je sxis seul de cet avis.
HENRY J.-By agreement and in virtue of a by-law the appellant company obtained the right to exercise the powers and privileges of a street railway company in the city of Quebec for a period of forty years, and upon one condition only could this right be put an end to, viz: " the privilege hereby granted to the said company shall extend over a period of forty years from the date hereof, but at the expiration of twenty years the said corporation may, after a notice of six months to the said company to be given within the twelve months immediately preceding the expiration of the said twenty years, assume the ownership of the said railway and of all real and personal property in connection with the working thereof and. on the VOL. IV.]
Arbitrage payment of their value to be determined by arbitration together with ten per cent. over and above the value thereof."
The notice in this case was given on the 21st. Nov. 1884, and the twenty years expired on the 9th Feb. I entirely concur in the opinion expressed by H ~the majority of my learned colleagues that the notice K
.is too short. The condition is a condition precedent to the right of the corporation to assume the ownership of the railway after twenty years.
I also concur with Mr. Justice Strong in holding that the court has no power under the agreement to appoint an arbitrator for the company. If it were the case of expropriation of public land for public use the court, no doubt, would have had power to appoint the arbitrator. But the agreement here distinctly provides that the company's arbitrator should be appointed by themselves and there is no provision that in the case of the refusal of the company to appoint their arbitrator a judge or court can then appoint one.
I have serious doubts on the other point raised, but it is sufficient for me to say that upon these two grounds I am of opinion that the present appeal should be allowed with costs and the judgment of the Superior Court in the first action restored.
J.-I am of opinion that the notice is defective and therefore the present appeal should be allowed with costs.
3.-The notice was quite insufficient; there is therefore no necessity to refer to the other points argued.
Appeal allowed with costs. Solicitors for appellants: Caron, Pentland 4- Stuart. Solicitors for respondents: Baillarg6 4- Pelletier. June HOWARD BARSS LEBARON
VAUG-HAN
R interest-Not of
APPEAL from a decision of the Supreme Court of New Brunswick refusing to set aside the verdict for the plaintiff and order a nonsuit pursuant to leave reserved. The facts of this case are simple. Barss & a Liverpool firm, cabled to one Vaughan, in St. John, N. to insure for them $3,500 on the barque " Landseer."
Under this authority Vaughan applied for the insurance, and the application asked for insurance " on our account " by H. Barss & Co. The policy was made out stating that the insurance was " for whom it may concern."
A loss having occurred a claim was made under the policy by H. Barss & Co. and several others who were shown to be interested in the vessel. The company resisted payment on the ground that only the interest of Barse & Co. was insured. Whereupon the policy was sued on by all the owners and on the trial a verdict was entered for the plaintiffs with leave reserved to the defendants to move for a nonsuit, or to reduce the verdict to an amount agreed upon as representing the interest of Barss & The verdict was sustained by the Supreme Court of New Brunswick, and the defendants appealed to the Supreme Court of Canada.
Weldon Q. and C.
Any authority that Baras & Co. may have had over the interest the other owners cannot be held to govern the action of Vaughan.
Further, there was no constructive total loss. The only evidence of loss is that of the captain, and his evidence is mostly inadmissible as it refers to the proofs of loss which are not evidence of the facts contained in them.
Lastly the notice of abandonment was insufficient. Only the person having authority to insure can abandon, and only the person having authority to transfer the property can insure.
The test is whether, independently of the Merchants' Shipping Act, Vaughan could have given a bill of sale of the interest of the owners other than Barss & Co.
The cases of Stewart v The Greenock Marine Ins. Co. (1) ; Kaltenbach v. Mackenzie ; lardine v. Leathley were cited
Forbes for the respondents cited Brown's Parliamentary Cases, Tomlins, 204.
McManus v. Etna Ins. Co. (4); Currie v. Bombay Ins. Co. ; Patapsco Ins. Co. v. Southgate ; Hunt v. Royal Ass. Co. (7) ; Rankin v. Potter
W. J. J.-I think there was sufficient evidence to warrant the jury in finding that there was a constructive total loss; that as agent for the assured H. Vaughan had a right to give notice of abandonment; and I think the notice so given was sufficient to convey to the underwriters the intention of the assured to abandon; that defendants having, by their policy, insured the vessel " on account of whom it may concern " it was open to the plaintiffs to show an insurable interest and for whose benefit the insurance was effected, the intention of the party directing the insurance determining whose interest the policy protects; and independently of the direct evidence in this case that twenty shares were intended to be insured would seem to appear very clearly from the amount insured, $3,500' on a valuation of
$10,000.
If the insurance was only on eight shares instead of twenty it would have amounted to only some $1,222 and they would have been paying premiums on $2,278 which they never could have received in case of loss-a most unlikely and unreasonable thing for business men to do-and it was, no doubt, seeing this would be the case that the agent the company insured "on account of whom it may concern " to enable the plaintiffs, in case of loss, to declare the intent and cover all the interest the insured represented and intended to insure, without requiring him to disclose what that interest was at the time of effecting the insurance.
The fact of the agent of the insured departing from the words of the application, and using language of a more extended character, would seem to show that the interest was not to be confined to the shares standing in the name of Barss & Co. but was intended to cover all the interest they represented.
As to the claim to have a reduction of freight said