undertaking and was not restricted to the "physical assets" crry of the company.
The grounds of appeal submitted to the Supreme Court of Canada were that the judgment of the Court of Appeal was erroneous, in point of law, in that by the notice of purchase dated the 30th day of July, 1929, the franchise to supply electric light to the inhabitants of the municipality did in fact and in law terminate on that date; that being so, there was no period for which the arbitrators could allow $38,000 or any sum for prospective loss of profits. The agreement should be construed in the light of the fact that the appellant corporation had no power to buy back and pay for the franchise granted. The appellant corporation was the creature of the statute, R.S.B.C., 1924, c. 179, and as such had no power to deal in its own franchises to that extent.
The Supreme Court of Canada, after hearing counsel for the appellant and for the respondent, reserved judgment; and, later, dismissed the appeal with costs.
N. H. McDiarmid for the appellant.
J. W. de B. Farris K.C. for the respondent.
CANADIAN INTERNATIONAL PAPER
1-- CO.
SOPER
APPEAL by the defendant from the judgment of the Appellate Division of the Supreme Court of Ontario (1) which allowed the plaintiffs' appeal from the judgment of Kelly J. (2) dismissing the plaintiffs' action.
The action was for the price of two snow ploughs. The defence was that the ploughs delivered were not as ordered or represented and were not accepted by the defendant. On the appeal to this Court, after hearing the arguments of counsel, the Court reserved judgment, and on a subsequent day delivered judgment allowing the defendant's appeal with costs in this Court and in the Appellate Division, and restoring Anglin C.J.C. (with whom Rinfret J. concurred), by Newcombe J., and by Smith J. (with whom Cannon J. concurred).
Anglin C.J.C. (Rinfret J. concurring) stated that, on the evidence, he was convinced that the trial judge was entirely right in his findings. He pointed out that, the moment it appeared that the description, in each of the written contracts, of the ploughs sold was equivocal, that opened the door for the admission of parol evidence to identify the subject matter intended by the parties-if, indeed, such evidence is not always admissible to identify the true subject matter, when in dispute. After reviewing the evidence at length, he held that, on the whole evidence, it was very apparent that the differences between the ploughs bought and those furnished were quite sufficient to justify the rejection by the defendant of the two ploughs sent out by the plaintiffs; as the case was put by appellant's (defendant's) counsel,-either the parties were ad idem as to the subject matter of the contract and, if so, it clearly was two ploughs the same as that seen in the City of Ottawa garage by Leclair (the defendant's representative), and suitable for work on bush roads, which could be attached to a Linn tractor in such a manner as not to interfere with the loading of supplies on the tractor platform (if need be, the written contracts should be reformed to evidence this arrangement, the testimony in the record being quite sufficient to justify that being done), or the parties were never ad idem, Leclair ordering two ploughs of the above type and Soper thinking that he was ordering two Frink "V " type ploughs with standard Linn attachments; in any case, the action fails.
Newcombe J. held that the parties were not ad idem, and that, without attempting to distribute the responsibility for this, the plaintiffs must fail.