Montreal Agencies Ltd. v. Kimpton

the parties other than those expressed therein. With the learned trial judge (Boyle, J.) and Hyndman and Clarke, JJ.A., we are of the opinion that the plaintiff is entitled to commissions only in respect of premiums paid, whether in Ban.

cash or notes, prior to his discharge. We would, however, for the reasons indicated by Clarke, J.A., fix the date of discharge at the 20th of June, 1924, rather than the 14th of June, 1924.

For these reasons the appeal should be allowed with costs here and in the Appellate Division and, with the slight modification suggested, the judgment of the learned trial judge should be restored.

RINFRET J.-The Bank of Nova Scotia, being the owner of a certain immovable property on St. James street, Montreal, agreed, if the sale of that property were effected by the appellant The Montreal Agencies Limited, to pay it a commission of 2z per cent. on the sale price. The bank fixed that price at $300,000.

The respondent, L. E. Kimpton, approached the Montreal Agencies and intimated that he had a prospective purchaser.

The company promised that, in the event of his being able to bring this sale to a successful issue, it would divide its commission of 2i per cent. equally with him. Whereupon Kimpton disclosed the intended purchaser as being The L. E. Waterman Company Limited, and submitted the latter's offer to the Montreal Agencies, which in turn .placed it before the bank. The offer however was only for $250,000, partly cash and partly in deferred payments and, for the moment at least, did not J. prove acceptable to the bank. The parties went on negotiating through the Montreal Agencies, to which the bank wrote, on the 25th September, 1916:- On October 4, Kimpton notified the Montreal Agencies that the Waterman company had withdrawn its offer "on account of it not being acceptable to you " and that the negotiations in connection with the same should be considered cancelled.

This was not, in fact, true. Lane J., who tried the case, found-and we agree with him-that Kimpton wrote this letter to the Agencies company in bad faith, for the purpose of carrying the deal through on his own eccount and of securing for himself the whole instead- of one-half only of the commission. He sought, at the trial, to explain that Kissock, the assistant manager of the Montreal Agencies, had deceived him by falsely telling him that his company held an exclusive right of sale. This was denied by Kissock; no such reason was assigned by Kimpton in his letter of the 4th October and the trial judge disbelieved his story.

In reality, the offer of the Waterman company to the bank was never withdrawn. The very next day after his notification to the Montreal Agencies, Kimpton wrote to the bank about the matter. Although without the participation of the Montreal Agencies, the negotiations continued and their outcome was an agreement of sale between the bank and the Waterman company signed on the 7th March, 1917, for $250,000 cash.

On this state of facts, Lane J. held the Montreal Agencies entitled to its conunission from the bank and we think rightly so.

No doubt the Waterman company was originally Kimpton's client. But Kimpton agreed that it should be introduced to the bank by the Montreal Agencies. That he, Kimpton, would " bring this sale to a successful issue " and that, in consideration for same, he would expect his remuneration not from the bank but from the Montreal Agencies, was precisely the bargain he made on the

19th May, 1916. So far as the bank was concerned, the appellant found the purchaser and brought the parties together as buyer and seller. This was done not only with the full consent of Kimpton, but as part of the agreement which he had made with the Montreal Agencies.

J. Against the bank, therefore, that company is entitled to the commission.

The agent who brings his principal into relation with the actual purchaser is the effective cause of the sale, although the principal sells " behind the back of the agent and unknown to him." (Burchell v. Gowrie (1).

The commission is due even if the price paid be less than the sum at first demanded by the principal, especially if the price finally accepted by him is that which he had originally refused, when the buyer was introduced by the agent. It would not lie within the power of the principal, by his initial refusal, thus to prevent the agent from receiving his commission (Art. 1084 C.C.).

In the deed of sale, the Waterman company assumed payment of all commissions. Both the company and F. D.

Waterman personally undertook to indemnify the bank against any such charges, if asserted.

The Waterman company obtained from Kimpton a guarantee against the payment of any remuneration other than to him.

Upon learning of the sale, the Montreal Agencies claimed its commission and, the bank having refused to pay it, the present action was brought.

The bank called Waterman and the Waterman company in warranty and they, in turn, called Kimpton in sub-warranty.

No plea was fyled by the bank, sole defendant in the principal action; nor did

Waterman and the Waterman company contest the action in warranty. But Kimpton intervened under Art. 186 of the Code of Civil Procedure, which reads as follows:- The judgment of the Superior Court dismissed the intervention and maintained the principal action together with the actions in warranty and in sub-warranty.

Kimpton alone appealed from this judgment and only upon his intervention. The consequence was that the judgment declaring the action well founded as against the MONTREAL bank became absolute. So did the decision on the actions in warranty and in sub-warranty.

This situation is well explained by Glasson (Pr6cis de Procedure Civile, 2e 6d., vol. I, no. 875):- Rinfret

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* de m~me encore I'acquiescement d'une partie au jugement n'empiche pas I'intervenant d'interjeter appel de son chef, et ainsi il pourra arriver que le jugement acquibre chose jug6e vis-h-vis de l'une des parties et soit r6form6 sur I'appel de l'intervenant ou r6ciproquement. Nevertheless, by a majority of three to two, the Court of King's Bench reversed the judgment of the Superior Court in toto. It dismissed the principal action against the principal defendant (who had acquiesced) with costs against the plaintiff and also the actions in warranty and in subwarranty with costs of both actions against Waterman and the Waterman Company. This the Court of King's Bench clearly could not do. There was no appeal on those issues. The judgment of the Superior Court, to that extent, had become res judicata. Moreover, the bank, Waterman, and the Waterman company were not parties to the appeal and were not before the court. Even when they are joined to the principal action for purposes of hearing and of judgment, the actions in simple warranty remain distinct from it and are not merged by the joinder.

This doctrine is expounded with great lucidity by Japiot (Trait6 de Proc6dure Civile, p. 631, no. 1024):- Supposons qu'en preminre instance figuraient plusieurs demandeurs ou plusieurs d6fendeurs, originaires ou intervenants. La question se pose alors de savoir si l'appel, interjet6 par 1'une des parties qui ont succomb6, va produire son effet et permettre de r6former le jugement vish-vis de la partie seulement qui l'a interjet6, ou, en outre, vis-&-vis des aigree parties qui sont dans la mime situation qu'elle.

Par exemple, A l'6gard de quelques-uns d'entre eux, le d6lai d'appel est expir6; ils ne peuvent plus personnellement interieter appel; mais le d6lai court encore A l'6gard de l'un d'eux.

Celui-ci interjette appel en temps utile. Les autres demandeurs ou d~fendeurs vont-ils 6tre relev6s de la d6chdanoe par eux encourue, en ce sens qu'ils pourront figurer dans l'instance d'appel, y conclure et demander la r6formation du jugement dans leur intirit?

Le sens commun indique que celui-lk seul sauvegarde son droit et le met 1'abri des causes d'an6antisement, qui l'exerce avec les formalitis prescrites et dans les d6lais impartis par la loi: Jura vigilantibus subveniunt, non dormientibus. Chacun des plaideurs, en principe, ne sauvegarde par ses actes que son propre int6rt.

En rbde g6ndrale, The author then points out that there are exceptions to this rule in cases where the obligation is joint and several . or indivisible.

The exception does not apply here.

meroN. We also find the same doctrine in Dalloz, R6pertoire Pratique, verbo Appel cn matibre civile, no. 322:intrit

The Court of King's Bench also maintained the intervention, which was the only matter properly involved in the appeal.

We have already indicated that, in our opinion, the intervenant was wrong and, on that point, the judgment of the Superior Court ought to have been confirmed. The difficulty lies in the fact that the Montreal Agencies alone appealed to this court and its notice of appeal was only against Kimpton. At first, we had some doubt whether, under these circumstances, without having the bank and the other parties before us as respondents, our view being in favour of restoring the judgment of the Superior Court on the intervention, we could deal with that part of the judgment of the Court of King's Bench which dismissed the principal action against the defendant as well as the action in warranty (save for costs) and the action in subwarranty.

We have come to the conclusion that we can.

The judgment of the Court of King's Bench was rendered upon an appeal exclusively between Kimpton and the

Montreal Agencies. This judgment is ultra vires, so far as the bank, Waterman and the Waterman company are concerned. It is therefore quasi non-existent arid cannot affect them, as they were not parties to the appeal. This judgment can neither avail against them, nor can they claim any right under it. We have before us the same parties who were before the Court of King's Bench and.as to whom alone the appeal was heard and could be decided. We think therefore the whole judgment open for discussion and disposal by us.

By force of section 51 of the Supreme Court Act, this court may

The decision appealed against was the outcome of an appeal to the Court of King's Bench, in which the Montreal Agencies Limited and Kimpton alone participated. Upon the appeal to this court between the same parties, we can deal with that decision as irregular and ultra vires and give the judgment which should have been given by the Court of King's Bench, so as to leave its full effect to the judgment of the Superior Court, thus reversed illegally and without right.

The judgment of the Court of King's Bench will therefore be set aside with costs against Kimpton and the judgment of the Superior Court will be restored.

The result is that the Montreal Agencies Limited is declared entitled to the full amount of the commission it claimed from the bank and the actions in warranty and in sub-warranty are maintained.

The appellant may yet have to account to Kimpton for half of the commission. This question does not arise now and will be left for decision upon an issue properly raised between the Montreal Agencies and Kimpton.

The issue here was, and could only be, whether the bank owed that commission to Montreal Agencies.

As regards the position of the warrantors, had the intervention been successful in this court, while the judgment of the Superior Court had been allowed to become res judicata on the actions in warranty and in sub-warranty, we refer the parties to Archibald v. Delisle (1), where it was held that actions to enforce simple or personal warranties issued before judgment upon the principal action,