Brownlee v. McIntosh

Per Idington and Anglin JJ.-The plaintiff's claim fails for want of evidence of any request by the defendant that he should render the services in respect of which remuneration is claimed nor an agreement to reminerate him for assistance in effecting the sales in question.

The judgment appealed from West. W.R. 725; West. L.R. 30; D.L.R. 400) stood affirmed.

APPEAL from the judgment of the Court of Appeal for British Columbia(1), reversing the judgment of -*PRESENT:-Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.

(1) West. W.R. 725; 23 West. L.R. 30; D.L.R. 400. Grant Oo. J., at the trial, and dismissing the plain. tiff's action with costs.

The circumstances of the case which are material to this report are stated in the head-note.

concurred with Duff J. J.-I would dismiss this appeal with costs. J.-I cannot find any contract ever was made between the appellant and respondpnt entitling the former to make the claims he sets up.

If the dealings had between the parties, are kept in view, there is nothing in the expressions respondent is alleged to have used that can properly be twisted into a foundation for such a claim for commission as the learned trial judge allowed.

And if under the circumstances I had felt appellant entitled to some compensation for such time as he gave to Mr. Coote, I would say he had been amply compensated by what Mr. Garnham has already paid him, and is not entitled to levy on the co-adventurers a duplicate thereof, even if they are not partners.

The appeal should be dismissed with costs. J.-I do not think it is necessary to consider whether the Court of Appeal was justified in reversing the finding of the learned County Court judge on the facts; I have conie to the conclusion that the action ought to be dismissed upon another ground.

The plaintiff bases his claim upon a contract which he alleges he entered into with the defendant and his associate Garnham in the Spring of 1911, by which they agreed that if the plaintiff would assist them in selling certain lands in respect of which they then had a contract of purchase with the British Columbia Government they would remunerate him. The land in question comprises about 7,000 acres in the northern part of British Columbia. These lands had been surveyed by the plaintiff under contract with the Government.

For this the appellant was paid 25 cents an acre. Later, in the Spring of 1911, according to the plaintiff's story, McIntosh and Garnham made the further arrangement already mentioned upon which the action was brought.

It is perfectly obvious that the scheme entered upon and successfully carried out by McIntosh and Garnham, through the agency of the plaintiff, was a fraud upon the "Land Act."

The conditions upon which surveyed public lands might be purchased, in 1910, were those laid down in sections 34 and 36 of the "Land Act" of 1908; and one of those conditions is expressed in sub-section 11 of section 34, in the following words:- McIntosh, Garnham and the plaintiff would not, of course, be entitled to purchase, under the provisions of this section, more than three separate tracts of land without having complied with the conditions as to improvements.

The plan adopted to evade these. provisions was to make a number of applications in the names of the nominees of McIntosh and Garnham. There can be no question that the real applicants were McIntosh and Garnham.

The scheme was to obtain Crown grants of these lands in violation of the provisions of the statute, although in professed compliance with them, and then sell the lands to purchasers, who, in the ordinary course, would know nothing of the contrivance that had been resorted to. Any agreement entered into for the purpose of carrying out or facilitating the carrying out of this fraud upon the "Land Act" would be an agreement which it would be the duty of the courts to refuse to enforce as soon as the character of it should become apparent. The contract set up by the plaintiff under which he agreed to assist in the sale of the lands is necessarily tainted by the character of the scheme as a whole. It follows that the action ought to be dismissed.

For these reasons I concur in dismissing the appeal with costs. J.-The purchaser who bought the property, on the sale of which the plaintiff claims a commission, was introduced to the defendant and his partner by one Jones, an agent employed by them, to whom they paid the ordinary commission on the sale. I fail to find in the record any evidence that the defendant ever agreed with the plaintiff to pay him for assisting in the sale of this property a commission or a remuneration in addition to 'the 25 cents an acre paid him for procuring.the property for the defendant and his partner and furnishing them with -reports and information concerning it. Neither do I find evidence of any request from the defendant and his partner, or either of them, that the plaintiff should render the services in respect of which he sues from which, in the circumstances of this case, a promise to pay him for those services should be inferred as a matter of law. The appeal, in my opinion, fails and should be dismissed with costs.

concurred with Duff J.