Chertkow v. Feinstein

MORNING NEWS

COM- APPELLANT; PANY (PLAINTIFF) ...................

AND

*Feb.4.

W. G. B. THOMPSON AND F.

RESPONDENTS- WAI HON (DEFENDANTS) ..............

ON APPEAL FROM THE APPEAL BRITISH COLUMBIA

The members of the Chinese National League of Canada, scattered throughout the Dominion (hereinafter called the League) subscribed money for the purchase of a site and the erection of a building in Vancouver for "headquarters" purposes. As the League was an unincorporated and unregistered society, the conveyance of the property was taken in the name of a branch of the League, called " The Chinese Nationalist League," which was incorporated under the Benevolent Societies Act, with headquarters at Victoria. After the erection of the building the then president and secretary of the League leased a portion of the premises to the appellant company, first in July, 1922, under a verbal arrangement and later in September, 1924, under the same arrangement put in writing. The appellant paid rents to the League for some time but falling in arrears, in April, 1927, the then president and secretary of the League, the respondents Low and Wai, issued a distress warrant, and the respondents Thompson and Binnington, bailiffs, distained the goods, chattels and fixtures of the appellant. In an action for illegal distress, the appellant recovered 8500 damages; but that judgment was reversed in the appellate court. Held that, upon the evidence, the relationship of landlord and tenant never existed between the appellant company and the League, on whose behalf the distress was made; therefore the distress was illegal and the appellant was entitled to recover the damages awarded bythe trial judge.

Held, also, that an unincorporated society such as the League (although not within the prohibition of section 8 of the Companies Act, R.S.B.C. 1924, c. 38, inasmuch as it has not "for its object the acquisition of gain ") is incapable of making a lease. Jarrott v. Ackerley (85 L.J. Ch. 135) and Henderson v. Toronto General Trusts Corporation (62 O.L.R. 303) followed.

Held, further, that the appellate court erred in holding that the appellant was estopped from setting up incapacity of the alleged landlords on the ground that to do so would be tantamount to impeaching the title to the premises of the persons by whom it was let into posses-sion of them as tenant. To extend the estoppel, which exists where *PRESENT:-Anglin C.J.C. and Duff, Newcombe, Lamont and Smith JJ.