Herrington v. City of Hamilton

J.:-On April 8, 1958, the City of Hamilton expropriated certain lands of which Alfred Herrington and Gisele Herrington, who are husband and wife, were the owners as joint tenants and which formed part of the property of a partnership in which they were the only partners.

Under the relevant statutory provisions the Ontario Municipal Board was appointed sole arbitrator to determine the compensation to be paid by the City. By order dated March 23, 1962, the Board fixed the compensation at $50,525.

Pursuant to a report of His Honour Judge Schwenger dated September 30, 1960, Samuel Taylor had been appointed Receiver of all the assets of the partnership with power to manage the business of the partnership until the final conclusion of the expropriation proceedings. Alfred Herrington, Gisele Herrington and Taylor appealed to the Court of Appeal for Ontario from the award rnade by the Board asking that the compensation be increased. On January 9, 1963, this appeal was dismissed with costs.

Apparently Alfred Herrington decided to appeal to this Court while Gisele Herrington and Taylor decided not to appeal. By notice dated March 6, 1963, Gisele Herrington and Samuel Taylor changed their solicitors. On the same day the solicitors for Alfred Herrington served a notice of appeal to this Court, using the style of cause set out above and reading as follows:

This notice was directed to and served upon the solicitors for the City and the solicitor for Gisele Herrington and Samuel Taylor.

OF On March 8, 1963, an order was made by the Registrar HAMION of this Court approving the security given by the appel- Cartwright J. lant.

Counsel for the City now moves to quash the appeal

"on the ground that the appellant Alfred Herrington has no status to maintain this appeal". Counsel for Alfred

Herrington opposes this motion and also moves:

for an order extending the time for making application for leave to appeal and for leave to appeal to this Court from the Order of the Court of

Appeal for Ontario dated the 9th day of January, 1963, dismissing the appeal of the Claimants from the Order of The Ontario Municipal Board dated the 23rd day of March, 1962, or for such further or other order as to this Honourable Court may seem just.

In support of the motion to quash, Mr. Kellock cited a number of cases holding that one partner cannot sue alone to recover a debt due to the partnership. In the earliest of these Scott v. Godwin', Eyre C.J. said at p. 73:

I take it to have been solemnly adjudged in several cases, and to be the known received law, that one co-covenantee, one co-obligee, or one joint contractor by parol, cannot sue alone.

In Kennedy, Ross and Velanoff v. Canadian General

Insurance Co. , all the members of a partnership had joined in an action on a policy issued to the partnership.

The action was dismissed. One of the partners appealed to the Court of Appeal for Ontario in his own name.

The appeal was quashed. Aylesworth J.A., who delivered the unanimous judgment of the Court, after pointing out that the policy was issued to and insured the partnership said, at pp. 688 and 689:

There is no right of an individual partner either to sue upon such a claim or if judgment be given against the partnership in an action on such claim, individually and in his personal capacity to appeal from that judgment.

It is made clear, however, in the last paragraph of the reasons of the learned Justice of Appeal that the

Court had offered to entertain an application by the appellant to regularize the proceedings; the offer was apparently disregarded. In the case at bar Mr. Wilson

1 (1797), 1 Bos. & P. 67, 126 E.R. 782.

2 (1960), 22 D.L.R. (2d) 687.

S.C.R.