Causeway Shopping Centre Ltd. v. Muise

The plaintiff company was the owner of a shopping centre, a section of which had been set aside for use as a bowling alley. With a view to leasing this space, the company entered into negotiations with the defendant who expressed the intention that he would not incur any personal liability but would form a company to enter into the lease. The parties signed a document in which the lessee was named as "Thomas C. Muise or his nominee". Shortly thereafter, the company's solicitor forwarded to the defendant a copy of the document together with a letter which referred to an interpretation by the landlord permitting the defendant to assign the lease to his nominee. This letter was accepted and confirmed by the defendant.

Subsequently, the defendant's nominee went into possession and paid rent for a time. It later fell into arrears and finally ceased operations. The plaintiff then brought action against the defendant for the arrears of rent, additional rent required by the lease and for damages. The trial judge dismissed the plaintiff's action and on appeal the Court of Appeal by a majority decision dismissed the appeal. The plaintiff then appealed to this Court.

Held: The appeal should be dismissed.

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division', dismissing an appeal from a judgment of Bissett J. Appeal dismissed.

Cartwright C.J. and Martland, Judson, Ritchie and Spence JJ. 1 (1967), 63 D.L.R. (2d) 26.

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(orally for the Court) :-Mr. Nunn, we do not find it necessary to call upon you. We are satisfied that the document ex. M-1 referred to during the argument as a lease is not a lease because the lessee is named as "Muise or his nominee".

Under this document Muise was not liable as a lessee. He subsequently named Olympic as his nominee and this company went into possession and paid rent for a time. No assignment of the purported lease was necessary or attempted to bring about this result. The letter ex. M-2 in referring to an interpretation permitting Muise to assign the lease to his nominee does not transform Muise into a lessee under the original document.

The appeal is dismissed with costs.

NORMAN W. OXNER (Plaintiff) ......... BANK OF MONTREAL (Defendant) .....

COUR SUPRtME DU CANADA connection signed certain pledge forms. The loan was advanced in two parts and for each advance L signed a demand note in favour of the defendant. The security delivered to the bank consisted of a certified BANK cheque and two government bonds. A change in the form of holding the cash portion of the pledge was made in 1954, and the plaintiff's bonds were converted to a new issue in 1958.

During the period from 1952 to 1962 the defendant dealt actively with the principal debtor without consulting the plaintiff. The notes were renewed from time to time at increased rates of interest, and in 1957 the bank took from L a new note for the amount of principal then owing in substitution for the two original notes.

In 1962 the defendant's manager, after making efforts to get L to pay off the balance of the principal or to reduce that balance, took steps to realize on the pledged securities. A transaction was carried out which involved the withdrawal of funds from the plaintiff's account. An action subsequently brought by the plaintiff for moneys had and received by the defendant in trust for the use of the plaintiff was successful at trial. On appeal, the Court of Appeal reversed the decision of the trial judge and dismissed the action. The plaintiff then appealed to this Court.

Held: The appeal should be dismissed.

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division, allowing an appeal from a judgment of Fielding J. Appeal dismissed.

THE CHIEF JUSTICE (orally for the Court):-Mr. Jost, we do not find it necessary to call upon you. We agree with the conclusions and the reasons of the Appeal Division' The appeal is dismissed with costs.

1 (1967), 61 D.L.R. (2d) 599.

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