On a mere perusal of the evidence in the record (which we advisedly refrain from discussing), we are not prepared to find that notice to the plaintiff of the defendant's retirement in 1920 has been established. But there is some evidence from which notice might be inferred: (Leeson v. and we have not had the advantage of observing the plaintiff's demeanour when under examination in regard to the various matters relied upon as warranting the inference of knowledge which the defendant urges should be drawn. Upon the vital question whether knowledge by the plaintiff of the defendant's retirement at the time the transactions resulting in the present claim took place was established, there is no finding by the tribunal peculiarly competent, under circumstances such as this case presents, to make it-the trial court.
As already stated, when the plaintiff shewed that the defendant had been a member of the firm with which he dealt, the burden rested on the defendant to procure such a finding. He did not obtain it. He can have another opportunity to do so only as a matter of indulgence-and upon proper terms. On the other hand, there is no finding against him on this issue.
Under all the circumstances, we are of the opinion that, while the judgment dismissing the action must be set aside, a new trial should be directed upon payment by the defendant to the plaintiff of his costs of the appeals to the Appellate Division and to this court, and that the costs of the abortive trial should abide the event of the new trial. Jones v. Hough (4); Dominion Trust Co. v. New York Life Ins. Co. (5); Cooper v. General Accident Fire and Life Ass. Corporation (6).
Appeal allowed with costs. Solicitors for the appellant: Millar, Ferguson & Hunter. Solicitors for the respondent: Young & McEvoy.
S.C.R.