Glendinning v. Cavanagh

GiROUARD J.-I concur in the judgment of Mr. Justice Idington.

.-For the reasons given by Giroud J. Meredith and Riddell JJ., in the Court of Appeal for - Ontario, to which I feel I cannot usefully add anything, I am of opinion this appeal should be allowed and the judgment of the Chancellor restored.

IDINGTON J.-I think this appeal should be dismissed with costs. I agree so entirely with the reasoning of the judgment of the Chief Justice of Ontario that no useful purpose can be served by repeating it here.

I, however, desire to call attention to the following evidence of defendant McLeod explaining why the agreement of 24th April, 1905, was entered into. Do you remember giving an agreement to Browning? Yes. Do you remember why you gave that?

A. Yes.

Why?

Some time previous to this Mr. Timmons had called me to his office at the Larose Mine and told me a certain amount of the circumstances.

And as a result of that?

As a result of that we were willing to give an agreement.

That was an agreement to protect these men against loss in regard to the moneys they had advanced.

Yes, he asked me if we would accept Hanson's position and pay them back the money they had advanced for the removal of the caution.

If we would they would release. And I said no, the only thing we could possibly do then was to sell the property to them, and I agreed to do so. Hanson wanted to protect Browning, and there is no dispute about that; that Browning wanted to be protected?

A. Except we had a release.

And you got the release? A. Yes.

Subsequently the property was sold to Ferguson; do you know how that was?

A. Yes.

Tell us how that came about?

A. Mr. Browning and Mr. Ferguson or both made representations to us that Mr. Ferguson was putting up the money or instrumental in putting up the money and There is in the case such a repetition by witnesses and others of the view that the later transaction was "an independent sale" that, until I found this explicit statement of the reason for "the independent sale," I was somewhat embarrassed. This witness also calls it so.

The "independent sale" was merely a method of carrying out exactly what the assignees of Hanson's bargain or some of them desired and were entitled to. It was his bargain that was carried out. I prefer looking for the substance of things to adopting the mere form.

Every one got as the result all they ever had any right to expect except the plaintiffs whom the defendants seek to deprive of their commission.

To treat such an "independent sale" as a legal reason for depriving brokers of commission would, I fear, if adopted, lead to an undue development of human ingenuity.

As to the claim made before us for commission on the $20,000 of reduction made from the price fixed in the original agreement I do not see any ground to allow it. It is somewhat difficult to say exactly what the terms of the plaintiff's retainer were.

I do not think the commission was payable immediately upon the execution of the agreement with Hanson. Something more effective was needed as I read the understanding such as we are left to infer it was.

The bargain by which this reduction of price came about was the effective basis upon which the only hopes of the plaintiffs could possibly rest for a commission such as is allowed.

There is only another alternative which no doubt was present to the mind of Chief Justice Meredith in granting a new trial. I suspect plaintiffs prefer what has been adjudged.

and JJ. concurred in the opinion stated by Idington J.

Appeal dismissed with costs.

Co.