Judgment of the Court
C.J.C.-The facts of this case sufficiently appear in the judgment of the learned President of the Exchequer Court. The condition of the bond sued upon is that if the goods in question
The burden of showing the fulfilment of this entire condition was, in our opinion, upon the defendants.
(R.S.C., 1906, c. 51.)
The learned trial judge found that the goods in question had not been "exported and entered for consumption or for warehouse at St. John's, Nfid.," but, on the contrary that there had been, at the port of Montreal, a substitution of water for the alcohol shipped. While, upon the evidence, we would not be prepared, without further consideration, to maintain the finding of substitution at Montreal, the defendants certainly did not prove delivery at St.
John's, Nfid., of the alcohol shipped.
Moreover, it is abundantly clear that the remaining condition of the bond was not complied with, viz., that proof was not adduced nor were the goods accounted for to his satisfaction.
The burden of proving the fulfilment of this alternative condition was clearly upon the appellants. They employed one Duncan to obtain the necessary landing certificate and it was duly given to him and was not by him returned to the appellants as they had expected. It was handed, some time in the middle of January (probably, according to the evidence, during the week of the 18th), to the Assistant
Deputy Minister of Excise, not to prove delivery of the alcohol at St. John's, but because the fraud practised had then been discovered and Duncan appears to have been anxious to ingratiate himself with the Department. The appellants themselves subsequently obtained a duplicate of this certificate, which they appear to have delivered to the Excise officer at Belleville, about the 11th of February,
1925, well beyond the 90 days, which had expired on the
16th of January, 1925.
For these reasons, we would uphold the judgment imposing liability under the bond upon the appellants. The appeal should be dismissed with costs.
Solicitors for the appellants:
Meredith, Holden, Heward
& Holden.
Solicitor for the respondent: John D. Kearney.
appeal side, province of Quebec (1), reversing the judgment of the Superior Court, Bond J. (2), and maintaining in part the appellant's action.
By a contract dated January 23, 1924, the appellant was engaged as manager of the automobile department of the respondent corporation.
The business of the respondent consisted chiefly in discounting the notes and securities held by automobile dealers for automobiles sold. The contract provided for a salary of two hundred dollars per month, plus a bonus on the net profits. The contract was for a period of five years with leave to either party to terminate it upon giving thirty days notice. The appellant worked for the respondent during the years 1924, 1925 and until July 31, 1926, when he resigned. He had been paid his salary and bonus until the end of 1925 and this action was brought to recover the sum of $5,349.75, being the bonus to which he claimed to be entitled for the seven months of 1926.
The judgment of the Superior Court dismissed the appellant's action. The Court of King's Bench maintained it to the extent of $2,994.49 with interest and costs; and the appellant appealed so that this judgment be increased to the sum of $5,349.75.
The respondent instituted a crossappeal, asking for the restoration of the judgment of the Superior Court and the dismissal of the action.
The Supreme Court of Canada dismissed the appeal and allowed the cross-appeal with costs.
Cross-appeal allowed with costs. John W. Cook K.C. and W. C. Nicholson for the appellant. Arthur Vallie K.C. for the respondent.
Bench, appeal side, province of Quebec (1), affirming the judgment of the Superior Court, Demers J., and main- .taining the respondent's action in damages.
Action was brought by the respondent both personally and in her quality of tutrix to her five minor children, for the sum of $25,000, damages resulting from the death of her husband, Alfred Nadeau, as a result of a collision between an electric car belonging to the appellant and an automobile belonging to and driven by one Cournoyer, the respondent's husband at the time a passenger in the automobile.
The Superior Court gave judgment for $12,000 and this judgment was maintained in the Court of King's Bench, Mr. Justice Hall and Mr. Justice Rivard dissenting. The sole question in the appeal before this court was whether the trial judge was bound to find on the evidence adduced that the sole direct cause of the tragedy was the negligence of Cournoyer, or whether the appellant company, knowing the crossing to be a dangerous one, failed to take reasonable precautions to avoid any accident.
The judgment of the Supreme Court of Canada dismissed the appeal with costs, thus affirming the judgments awarding $12,000 damages to the respondent.
Arthur Vallge K.C. for the appellant.
J. P. Lanct6t for the respondent.