The party most interested in securing the deed is the appellant. He needs it for purposes of registration. The respondent did not require it to sue for the annuities. If it were otherwise, she could not recover under the present J. action. It devolves primarily upon the appellant to ensure the execution of the deed.
Unless this be done by mutual agreement and the deed be properly completed within one month from the present judgment, the appellant is authorized to cause to be prepared by a notary a deed similar to that drafted by the Superior Court, as amended by this court, and to sign it. He may then put the respondent en demeure to affix her own signature to the said deed; and, in default of her so doing within fifteen days after the mise en demeure, the appellant may again come before this court to apply for an order to the effect that the judgment be registered to all intents and purposes in lieu of and to take the place of a deed between the parties. In the meantime, the case will stand adjourned until the 2nd day of February, 1930, or such other day as may be fixed upon application by either of the parties.
Solicitors for the appellant: Ste. Marie & Ste. Marie. Solicitors for the respondent: Aylen & Aylen.
SIMONITE v. MOXAM
APPEAL from the decision of the Court of Appeal for Manitoba (1), reversing the judgment of Galt J. at the trial (2) and dismissing the appellant's action.
The appellant is a real estate agent in Winnipeg and the respondent is a builder in the same city. The appellant claims that the respondent employed him to find a purchaser for an apartment block known as the " Blackstone" in St. Boniface and at the same time named the sum of $100,000 as the price he was willing to accept for the -M. premises. The appellant further says that he then introduced to the respondent one F., the manager of a trust company; and as a result of the appellant's efforts, this company purchased the apartment block for $100,000. The appellant claims by his action $3,060 representing his commission. The respondent denies most of the material allegations in the statement of claim and alleges that he sold the property through the agency of a different real estate agent.
The question at issue in the case was whether, upon the facts, the appellant was entitled to his commission. The trial judge, Galt J., decided in the affirmative; and the majority of the Court of Appeal, Dennistoun, Prendergast and Trueman JJ. reversed this judgment, Perdue C.J.M. and Fullerton J.A. dissenting.
At the conclusion of the argument of counsel for the appellant before this court, and without calling on counsel for the respondent, the court orally delivered judgment dismissing the appeal with costs.
J. C. Collinson for the appellant.
W. F. Hull K.C. for the respondent.
CHERTKOW v. FEINSTEIN
APPEAL by the plaintiff from the decision of the Appellate Division of the Supreme Court of Alberta (1), reversing the judgment of the trial judge, Ives J. (2), and dismissing the appellant's action in annulment of marriage. The issue to be determined in the case was whether the respondent at the time of the marriage was of sound mind so as to be able to enter into the contract of matrimony. At the conclusion of the argument of counsel for the appellant, and without calling on counsel for the respondent, the court orally delivered judgment dismissing the appeal with costs.
J. B. Barron for the appellant.
J. J. Frawley and H. G. Nolan for the respondent. HENRY K. WAMPOLE & CO. v. HERVAY CHEMICAL CO. OF CANADA
APPEAL from the judgment of the Exchequer Court of Canada, Audette J. (1), dismissing with costs the appellant's action to restrain the respondent from infringing its trade-marks.
For some years previous to the date of appellant's registration of its trade-marks in question in this case, it had been common to the trade, including the respondent, to market cod liver oil in pink or red packings, similar to the appellant's. The respondent's package complained of however bore his name prominently at the top. This was so also of the label on the bottle itself inside. Appellant's outside package also bore the name " Wampole " in large letters at top. This being the essential characteristic of the two trade-marks.
The trial judge (1) held that the two trade marks were perfectly distinct and not liable to create deception. At the conclusion of the argument of counsel for the appellant before this court, and without calling on counsel for the respondent, the court orally delivered judgment dismissing the appeal with costs.
0. M. Biggar K.C. and H. A. O'Donnell for the appellant. J. L. Perron K.C. for the respondent.
the Supreme Court of Alberta (1), affirming on equal division of the court the judgment of the trial judge, Boyle J. (2) and maintaining the respondent's action.
The respondent was walking at night along the centre of the graded portion of an unpaved street. There was no sidewalk but at one side was a path. It was raining slightly and the street was muddy. The annual fair was in progress in the city and the street in question was adjacent to the fair grounds. The'respondent saw the light of an approaching motor car and started to move over to the right side of the street. While doing so he noticed that the ground was lighted by the lights from a car coming from behind. He did not stop or look back and was struck by the latter car (the appellant's) before he reached the ditch.
The trial judge (2) awarded respondent damages. The appellate court (1), affirming this judgment, held that the respondent took reasonable precautions to avoid being struck and was not negligent and that the appellant had not satisfied the onus on him of proving that the damage did not arise through his negligence.
At the conclusion of the argument of counsel for the appellant before the court, and without calling on counsel for the respondent, the court orally delivered judgment dismissing the appeal with costs.
0. M. Biggar K.C. for the appellant.
Eug. Lafleur K.C. for the respondent.