Judgment of the Court
J.-This is an Ontario appeal, but the merits of the case are to be determined by the laws of the Province of Quebec.
On the 9th day of April, 1896, in the City of Hull, in the Province of Quebec, the respondent purchased for cash from the appellant, as curator to the insolvent estate of one F. X. Martin, merchant, of Hull, the stock in trade and all the assets abandoned by the said F. X. Martin, for the benefit of his creditors, but a short time afterwards he repudiated the sale and refused to take the goods. In consequence of this refusal, on the 21st April, 1896, the respondent was put in default and protested and finally sued.
It was not till the 18th of March, 1897, that, in satisfaction of a judgment of the Superior Court of the Province of Quebec against him, he took possession and paid the balance of the purchase money, amounting to $11,712.57, together with the interest thereon from the date of service of process and costs of suit.
. Now the appellant demands from the respondent the further sum of $953.63, as special damages which his default has caused to the creditors of the said estate.
The respondent pleaded res judicata, alleging that he had satisfied the judgment rendered against him, in principal and damages, the latter consisting in the interest on the balance of the purchase money and all the costs, and as stated in his plea, he contends Whatever may be the meaning of res judicata under the laws of Ontario, there is no possible doubt that Girouard J. under the laws of Quebec the Quebec judgment is not res judicata of the present claim.
The payment of the interest and costs means that and nothing more; C. C. Arts. 1077, 1534; it does not mean other damages resulting from the default in accepting delivery goods, such as insurance, care-taking, etc., which are specially excluded and reserved by the declaration in the former suit,
(rights Art. 1065 of the Civil Code of Quebec says:
Art. 1071 :
Article 1073:
The loss here consisted not only in the. loss of the purchase money for a time, but also the cost of keeping the property in dispute. The appellant could not include the damages which he now claims in the Quebec suit, either in the principal action or by an incidental demand.
Some had happened before the institution of the suit, but the greatest part were in the future and could not be ascertained when the case was instituted or argued, less when it was decided. In fact these damages could not be ascertained before the default had ceased defacto, that is before the payment of the full amount of the purchase money, on the 18th of March, 1897.
They are necessary expenses and disbursements which the curator and the creditors had to incur pending the default of the respondent, which might have been of several years if the respondent had resorted to the appellate courts of the country. He wisely submitted to the judgment of the first court; he is nevertheless responsible for all the damages caused by his default.
C.
The respondent contends that he never authorized these expenses.
This is perfectly true. The appellant was not his agent; he was not even a negotiorum gestor under article 1043 and following of the Civil Code; he was simply a curator of an insolvent estate; and it is only in that capacity that he can succeed. Now, what is the legal position of such a curator? What are his duties, obligations and powers ? They are defined in article 771 of the Code of Civil Procedure in force when this matter was pending:
The curator is therefore in possession and an administrator, and his administration ends only when the property is sold in the manner indicated by the Code, that is, if for cash, till the cash is paid.
As an administrator, was the appellant justified in making the claim he has preferred ? Mr. Justice Moss has very accurately and concisely summarized its particulars, and I cannot do better than reproduce his observations :
allowed to continue until they expired, instead of being put an end to, and a return secured of a proportionate part of the premiums as would have been done if the defendant had fulfilled his contract HD according to its terms. The plaintiff claims the proportion of these premiums, amounting to $164.77.
(2.) When some of these policies expired after the sale to the Girouard J. defendant, short term risks were effected and premiums were paid out of the moneys of the estate in respect of them. These are claimed and amount to $42.60.
(3.) Certain disbursements were made out of the moneys of the estate for the care and feed of some horses forming part of the property sold, for coals supplied to heat the shop where the stock of goods was, and for men carrying some of the goods upstairs and removing ice from the basement of the shop.
These are claimed and amount to $60.25.
(4.) A person named Mutchmore was directed by the plaintiff to look after the stock of goods, and he visited the place once, and occasionally twice a day, lit fires in the winter months, turned over the goods, packed away furs, and otherwise cared for the property until the defendant took it away.
For this he had not been paid at the time of the trial, but in respect of these services and of the plaintiff's supervision a claim is made of $686.00.
I would, however, add to the word " supervision" in the last line of the item, the words " and respon. sibility."
All these expenses and disbursements were made in the safe keeping of the property in question.
Can it be pretended seriously that a prudent administrator, for instance, a tutor or an executor, or a trustee, is not in duty bound to keep the property entrusted to his care and administration insured against accidents by fire?
Is the appellant to be less careful than the insolvent who kept the same property insured while in his possession ? Is he not justified in keeping a caretaker or guardian of an estate worth nearly $13,- 000 ? He had one before the sale, as is the practice pending the liquidation of insolvent estates. Why not one also after the sale, till the payment of the purchase money and the delivery according to the terms of the sale ? Why not one till the property is removed from the curator's hands ? Is he to continue to discharge 599, his duties and obligations for another year or more for nothing ? I think all the classes of items contained in the bill of particulars, except the first, should be allowed, not because they were incurred in the interest J. and for the benefit of the respondent, but because they were the necessary consequence of his default, in the interest of the creditors.
The creditors are responsible to the curator for the amount of the damage he claims, and it is only just that they be refunded or indemnified by the wrong doer.
The respondent is clearly liable.
The first class of items, composed of insurance premiums paid by the insolvent before the abandonment, cannot be entertained, because the respondent not only bought the stock in trade, but also all the assets of the insolvent, and this item was certainly one of his assets. We are therefore of opinion that the appeal should be allowed with costs before all the courts and that this action be referred to William L. Scott, Esquire, one of the masters of the High Court of Justice of Ontario, at Ottawa, to take an account ot the amount reasonably and properly paid or incurred by appellant as such curator in respect of the above items 3 and 4, in respect of insurance upon the stock in trade and fixtures of the said estate from the 21st of April, 1896, date of the default, to the 18th of March, 1897, date of the payment and delivery, and also in respect of the care and guardianship of the said property during the above period, including the curator's fees or remuneration, and those of his guardian, and generally all the items of the bill of particulars filed, excluding only said item no. 1 in respect of insurance premiums paid by the insolvent previous to the assignment.
Appeal allowed with costs.