Judgment of the Court
J.-This case arises out of the same facts that were under consideration in McCaffrey v. Ball
The same Francis McCaffrey is also here the appellant with the assistance of O'Shaugnessy.
In the previous case he claimed from Ball the boomage on the logs passed by him through the booms in question. Now he claims by saisie-revendication, the very booms themselves, with the necessary materials, chains, &c., that form part thereof. His action has been unanimously dismissed by the two courts below, and that no other conclusion could be reached is unquestionable. He has no claim whatever to the possession of these booms. They belong to the defendant, which he cannot deny and he admits that they have always been in the defendant's or his auteurs' possession.
He, McCaffrey, has a right to the boomage from all other parties than Ball, but that does not make him an usufructuary and as such entitled to the possession of these booms. Neither is O'Shaugnessy a depositary by the deed June 15th, 1877, by Mayrand to him. Both McCaffrey and O'Shaugnessy are precluded by their conduct and acquiescence from disturbing Ball in the exercise of his rights on these booms as they claim to be entitled to do in this case. I need on this point but refer to the remarks I made in the previous case.
Appeal dismissed with costs. Solicitor for appellants: Honan.
Solicitor for respondent: P. N. Martel.
Bench for Lower Canada (appeal side) confirming the judgment of the Superior Court in favour of the respondent for the sum of $2,152.
The action was instituted by the respondent against the appellant to recover the sum of $2,999.52 being the balance of the sum of $4,195.42 for the value of fees, costs and disbursements in a case before the Federal Arbitrators, before the Exchequer Court on an appeal and cross appeal from the award, and also before the Supreme Court on an appeal and cross appeal from the judgment of the Exchequer Court, and in which the appellant claimed from the crown the sum of $96,441.67 due him for land expropriated for the purposes of the Intercolonial Railway of Canada.
To this action appellant pleaded by a general denial (defense au fonds en fait), and by a peremptory exception, in which he admitted the fact that respondent acted as his attorney and solicitor but alleged that the cross PA-,s appeal to the Supreme Court was taken against his will; that respondent's services in no way benefited him; -and that he was more than paid for his said services by the amounts he had received from appellant. At the trial the respondent produced as witnesses to prove the value (quantum meruit) of his services, one judge who had acted while at the bar on behalf of the crown in expropriation cases and two prominent lawyers of the Quebec bar, and the Superior Court gave judgment for $2,152 in favour of the respondent. This judgment was confirmed by the Court of Queen's Bench on appeal.
.Belcourt and Mackay for appellant, contended that under the law of the province of Quebec unless there is an agreement in writing the attorney cannot recover against his client more than what the tariff of fees will allow him, and in the present action the respondent had no right to base his action on the tariffs of the Supreme and Exchequer Courts, and charge also a commission on the amount of judgment without an agreement in writing. The learned counsel referred to Brown v. Dorion ; Larne v. Loranger Ampot v. Gugy
Casg'rain Q.C., Attorney-General for the province of Quebec, for respondent, contended that under rule 57 of the Supreme Court Rules the tariff is only applicable as between party and party and that the respondent, having a right of action for a quantum meruit, had the right to claim and prove by oral evidence the full and real value of his services rendered; (see Doutre v. The Queen (4) ; art. 3597, R. S. Q.) ; and this court would not, upon the question of quantum, review the decision arrived at by the courts below.
Judgment of the Court
J.-There is nothing in this appeal.
I would have been of opinion to dismiss it immediately after hearing the appellant.
The respondent's right of j. action cannot be denied in the face of the decision of the Privy Council in Doutre v. The Queen
Then, it being in evidence that there is no tariff in the Exchequer Court or in the Supreme Court as between attorney and client, the respondent had the right to establish the quantum meruit of his services by oral evidence. Such is the well settled jurisprudence of the province.
As to the amount allowed to the respondent it is amply support ed by the evidence.
The appeal is dismissed with costs
Appeal dismissed with costs.