Majority
iRESPONDENT. TIFF)............................
APPEAL FROM THE OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Per Brodeur J.-Although the vendor is obliged to furnish the documents of title, including the registrar's certified abstract, yet, in the present case, as it appeared that the vendor made it a condition that the titles and certificate were not to be delivered into the possession of the purchaser the request in the letter acceptance was a stipulation of a new term which left the tract incomplete. La Banque Ville Marie Kent (Q.R. and Saved Picard Rev. Jur. referred to. Judgment appealed from (Q.R. K.B. affirmed.
APPEAL from the judgment of the Court of King's Beneb, appeal side(1), reversing the judgment of the *PRESENT:-5ir Charles Fitzpatrick C.J. and Idington, Duff, Anglin and Brodeur JJ.
(1) K.B. 495, sub nom. Poirier Archambault. Superior Court sitting in review(1), and restoring the judgment of Demers J. at the trial, in the Superior Court, District of Montreal, by which the action of the plaintiff, respondent, was maintained with costs. The circumstances of the case are stated in the judments now reported.
St. Germain K.O. and G. A. Archambault for the appellant.
St. Jacques for the respondent.
would dismiss this appeal with costs.
The sale was complete when the respondent accepted the offer of Mr. Archambault, the vendor. There was no doubt left as to the thing (chose) which the vendor offered to sell nor as to the price at which he was prepared to sell it. Once the appellant agreed to give the property at the price fixed, nothing was left to uncertainty, the obligation to pay the purchase price was then absolute.
It may be that when the vendor seeks to collect the second half of the purchase price a question may arise as to the time at which it becomes payable. In my view, nothing turns on that now. This -action was brought merely to get a deed evidencing the sale which was complete and produced all its effects from the moment the vendor agreed to give his property and the vendee obliged himself to take it at the stipulated price.
(Art. 1472, C.C.; S. V., 87.1.167.)
No question was ever raised during the lifetime the vendor, Archambault, now represented by the appellant, as to the conditions subject to which the purchase price was to be paid.
Considerable negotiations took place between the parties after the contract was entered into. But the sole dispute between them turned exclusively upon the right of the purchaser to insist upon the production of the vendor's title deeds and the registrar's certificate. The vendor's position then was that there was a concluded agreement, a completed sale, between him and the respondent here. The language which he nses invariably is "qu'il s'en tenait ih la lettre stricte de son contrat" (see protest exchanged between the parties and fyled in the case). In his pleadings the appellant says:dui erit And he repeats the same thing again here. One witness only was examined on behalf of the respondent, plaintiff below, and his evidence is to the same effect.
There does not seem to have been any doubt as to this in the minds of the judges below, as appears by the observations of Mr. Justice Tellier in the Court of Review.
It is true, as found by the trial judge, that Guilloniard and Duvergier would seem to make the condition of payment of the price of sale a condition of the sale itself, but it is to be noticed here that all the conditions with respect to the purchase price and to the terms of payment were settled except as to the time at which the second instalment would become due and exigible. As I said before, I do not consider this question arises on this record, but if it did, I quite agree with the judges in Bartley v. Breakey(1), where they say that the court would have, in a case like this, the power to fix the delay for payment. To the same effect, Baudry-Lacantinerie, vol. 19, page 540, No. 499; Aubry & Rau, vol. 4, paragraph 303, page 87. Reference may possibly be made to Dalloz 82,2,177, and to the note. would draw special attention to the second "consid6rant" of that judgment which explains why it was there held that the sale was not perfect. On this point see also Duranton, vol. 16, No. 107 bis; 17 Laurent, No. 59 in fine.
A question was raised as to the effect of the last paragraph in the writing accepting the offer of sale. "Faites venir vos titres et certificat chez man notaire." Do these words qualify the acceptance; I do not think so. The vendee bound himself absolutely in the first paragraph to buy on the terms contained in the offer and the words above quoted constituted merely a request for information as to the title and not a condition subject to which the offer was accepted. As admitted by the Court of Review, the letter of acceptance contained two distinct, separate and separable things; first, an acceptance pure and simple of the offer; secondly, a request which had reference not to the sale which was complete when the off eree expressed his intention to accept (arts. 1472 and 1025, C.C.), but to the obligation to deliver which follows on the completion of the contract of sale.
I do not think there can be any doubt that the obligation to deliver the thing sold includes its accessories, (art. 1492 C.C.; Pothier, Vente, No. 47) :- See also authorities in Revue Legale, N.S. Vol. 1, pages 322, 323, 324, 325, 326; Banque Ville-Marie v. Kent(1).
On the assumption that the vendor brought suit, could the vendee escape on the ground that having accepted the offer absolutely he asked for something in :addition which the vendor might or might not be obliged to give ? I think not. All the circumstances were fully and carefully considered by the trial judge and I agree in his conclusions wfhich have the approval of the court of appeal.
I understand that the opinion of some of my colleagues is that the sale was not complete because, although the purchase price was fixed, by an inadvertent omission the time at which the second instalment of that purchase price was made payable was not stated in the deed.
I find comfort in the thought that all the judges below who heard this case agree that this objection is without substance.
J.-I think this appeal should be dismissed with costs.
(dissenting).-The principal question is whether there was a concluded agreement of sale. I think the agreement was incomplete. The date of payment of the second instalment does not appear and I think that was an essential term.
There does not ~appear to be any rule supplied by the general law where -the parties agree that time shall be given, but do not specify what the time is to be. Where nothing is said as to the date of payment the law may imply a term that payment shall be made in cash or that it shall be within a delay necessitated by the circumstances where the circumstances enable the court to fix the necessary delay.
The implications in both cases rest upon the presumed intentions of the parties. There are no circumstances here from which the intentions of the parties can be presumed or inferred in respect of the date of payment. The respondent's suggestion necessarily involves the hypothesis that the parties had no common intention on -the point except that the court should make a bargain between them in the event of their failing to agree. I think that is an inadmissible hypothesis.
Moreover, it is not the function of the courts to complete incomplete juridical acts, but to interpret and to give effect to complete juridical acts according to law.
In construing the offer we must give it the meaning which a person of reasonable knowledge of business would expect it would convey to another person having like knowledge.
I think any business man reading -the offer in question would conclude either that the failure to mention the time of the payment of the second instalment was an oversight or that the point was to be left to further negotiations. reading the offer and the acceptance together I have no doubt that a reasonable construction of them is that the question of this date was left to be settled and inserted in the formal deed of sale.
The evidence given by the notary, Olivier, to the T. effect that a period of two years was agreed upon cannot in my judgment be safely acted upon for these reasons: Neither the learned trial judge nor the court . of appeal has accepted the evidence. There is no mention of the conversation in the protest; and the draft deed prepared by the notary leaves the matter at large. Add to that the fact that the notary was the real party in interest-a fact that he concealed from Archambault-and it seems clear that his uncorroborated evidence ought not to be accepted, on this point the evidence of Mr. Archambault being no longer available.
As to the reference in the protest to the strict letter of the offer, I do not think any inference can be built upon it because it is obvious that the point then under discussion was not the question of the teims of payment, and I think the expression must be taken only to refer to the subject matter of the discussion. J.-If this case fell to be disposed of under English law I should be prepared to allow this appeal on the ground taken by my brother Duff. But after devoting a great deal of time to the question I remain in doubt whether under the law of the Province of Quebec the failure of the parties to fix a date for the payment of the second half of the purchase money renders the contract alleged by the plaintiff incomplete and ineffective.
The weight of the authorities to which I have had access rather favours the view that it does not.
On the other branch of -the case I entertain no doubt that in making his request that documents of title should be sent to his notary the respondent did J. not and did not intend to stipulate for that as a term of the contract.
(dissident).-Pour qu'un contrat de vente puisse 4tre consid6r6 comme conclu il faut que les parties contractantes s'entendent sur la chose et sur le prix. Ce sont H deux conditions essentielles sans lesquelles il ne saurait y avoir de convention. II peut y avoir aussi d'autres conditions que 1'une on Pautre des parties pent stipuler et qui seraient de nature A restreindre les obligations et les droits respectifs du vendeur on de Facheteur.
Ces derni~res conditions ne sont pas essentielles; mais, cependant, si Pune des parties ne veut pas .s'engager sans que ces conditions ne solent accept6es par Pautre, alors il n'y a pas de convention tant qu'elles ne se sont pas entendues sur ces clauses additionnelles.
Dans le cas actuel, les parties paraissent 6tre tomb6es d'accord sur la chose. Quant an prix il a 6t6 convenu qu'une partie du prix de vente serait payable h terme, mais on a omis de stipuler quand elle serait payable.
Serait-ce dans un an, dans deux ans ou dans cinq ans, leurs 6crits n'indiquent aucune date. Dans les cas ordinaires je crois que cette absence de stipulation devrait nous faire consid6rer que la vente n'est pas parfaite parce que les parties ne se seraient pas entendues sur ce point.
La loi nous dit bien (art. 1533, C.C.) que si le temps du paiement
'est pas fix6 par la convention Pacheteur doit payer au temps de la livraison de la VOL. Li.] SUPREME COURT OF CANADA.
chose. Mais dans le cas les parties out stipul6 un terme, alors 'article 1533 ne s'applique pas. Ce terme alors doit faire Pobjet de nouvelles n6gociations. La vente reste l'6tat de projet taut que ce point n'a pas regu de solution par un accord intervenu sur ce point: Dalloz, 1882-2-177; Baudry-Lacantinerie, 36ne 6dition, vol. 19, No. 24.
Dans cette cause-ci, ce point, quoique soulev6e par le r6put6 vendeur, Archambault, dans son protit du 3 novembre, 1910, n'a pas fait Pobjet d'une all6gation sp6cifique de son plaidoyer et ce n'est qu'A Fargument qu'il a 6t6 discut6.
Il perd, dans ces circonstances, beaucoup de sa force; car il est toujours dangereux de decider une cause sur des faits qui n'ont pas &t mentionn6s dans Faction, dans la d6fense, dans les autres pikces de plaidoiries.
Mais dans cette cause-ci j'en suis venu a la conclusion 6galement qu'il n'y avait pas eu de convention qui donnft lieu h Faction en passation de titre parce que les parties ne se sont pas entendues sur un point accessoire, savoir Pobligation pour le vendeur de fournir des titres et des certificats de recherche. Voici en effet ce qui s'est pass&.
Le 27 octobre, 1910, Archambault 6crivait 1 Poirier la lettre suivante:- A A Le mame jour Fintim6 r6pondit:- Le contrat de concession auquel Archambault r6f6rait contenait plusieurs conditions.
La premibre, c'est que 1'acheteur devait payer les frais d'actes et d'enregistrement. La seconde condition avait trait an paiement des taxes municipales.
En troisibme lieu il 6tait dit que le vendeur ne-serait pas tenu de fournir de titres on de certificat d'enregistrement; mais que ces titres et ce certificat d'enregistrenent resteraient an bureau d'un tiers, ofi Pacheteur ou ses reprisentants pourraient en prendre connaissance.
II y avait aussi certaines autres conditions sur la nature des btiments qui devaient Stre 6rigbs sur la proprit6 vendue.
Poirier, en acceptant 1offre de M. Archambault dans les termes employds par ce dernier et en lui deiandant en mime temps de fournir ses titres et ses certificats, est-il cens6 avoir accept6 purement et simplement 1offre qu'Archambault lui avait faite ? Si oui, le contrat de vente s'est alors form6; et, par cons6quent, Faction en passation de titre intent~e par Poirier devrait 6tre maintenue.
Si non, le contrat ne s'est pas fori6, les parties ne se sont pas entendues et alors M. Archambault 6tait en droit, quelques jours apr~s, de d6clarer an demandeur par prott, comme il l'a fait, que son offre 6tait retir6e.
A premire vue, h la lecture de ces deux lettres, on serait porte a croire que l'offre de .1. Archambault 6tait accepte purement et simplement. Mais quand on examine cette offre et le contrat de concession J. auquel elle rfre et qu'on examine en mime temps la lettre d'acceptation et surtout la demande qui y est contenue quant aux titres et aux certificats de recherches, il me seible 6vident que les parties ne se sont pas entendues sur cette condition du vendeur qu'il ne serait tenu de fournir ni titres ni certificats de recherches.
En effet, sur ce point que dit 1offre de If. Archambault ?
En rbsujm, elle comporte qu'il 6tait prt A vendre sa proprit6, mais a la condition de ne pas livrer de titres A son acheteur ni de lui donner de certificats.
L'acheteur lui aurait r6pondu: "Je suis pr~t a acheter la proprit6; mais vous allez me donner vos titres et vos certificats." Voilh exactement que ces deux 6crits comportent. Peut-on pr6tendre qu'il y a en convention ?
Il me semble que poser la question c'est la r6soudre.
Le 29 octobre, 1910, il y a eu &videmment de nouvelles entrevues, de nouvelles n6gociations; mais la prenve testimoniale ne pourrait 16galeinent nous r6v41er ce qui s'est alors pass6. (Art. 1235, C..). Nous sommes donc oblig6s de nous en rapporter aux ereits que nous avons devant nous. Or, ces 6crits nous dmoutrent qu'il n'y a pas eu d'accord entre les parties ni sur le paiement qui devait 6tre fait ni sur Fhtendue de P'obligation du vendeur de fournir des titres. Les jugements de la cour d'appel et de la Cour Sup~rieure qui out maintenu laction en passation de titre seraient suivant moi mal fond~s et je serais d'opinion de r6tablir le jugement de la Cour de Revision qui avait d6bout6 Ioirier de ses conclusions. Tout en maintenant le jugeilent de la Cour de Re J. vision, je ne puis acquiescer h l'opinion exprime par l'un des honorables juges de cette cour qui d6clare qu'en loi un acheteur ne peut pas forcer son vendeur a lui fournir le certificat du r6gistrateur.
Je crois, an contraire, que le vendeur est tenu de fournir les titres de Pirmmeuble qu'il vend, y compris le certificat.
La premire obligation du vendeur est la dblivrance qui consiste en la translation de la chose vendue en la puissance et possesion de Placheteur.
(Arts. 1491 et 1492, C.C.)
L'article 1493 nous dit:- Cet article correspond h Particle 1605 du Code Napol6on, qui se lit comme suit:- Comme on le volt, il y a une diff6rence entre les deux articles 1493 de notre code et 1605 du Code Napol6on.
Le Code Napoleon declare express6ment que le vendeur dolt fournir les titres; notre article, au contraire, n'en parle pas. Mais les codificateurs nous donnent la raison de cette diff6rence; et voici ce qu'ils nous disent:- L'article 1605 du Code Napol6on avait 6t6, comme le disent les codificateurs, critiqu6 par les commentateurs et notamment par Boileux, 6me 6dition, p. 643, Marcad6, pp. 221-222 et 225 et par Troplong, "Trait6 de la Vente," Nos. 675-6-7-8.
Marcad6 disait, par exemple, qu'il serait absurde de dire que le vendeur a rempli son obligation quand il remet les titres en gardant les clefs:- Nos codificateurs, en pr6sence de ces critiques de la r6daction de l'article 1605 du Code Napol6on, ont cru simplement devoir d6clarer qu'ils adoptaient la rbgle de l'article du Code Napol6on, mais qu'ils ne donnaient pas les d6tails portes dans cet article parce (u'ils 6talent incomplets et qu'ils laissaient la disposition imparfaite.
La seule conclusion a tirer, dans les circonstances, c'est que sous notre Code Civil, comme sous le Code Napolbon, I'acheteur, pour remplir son obligation de d6livrance, est oblig6 de remettre les titres qui concernent la propri6t6.
Maintenant le certificat doit-il Atre aussi donn6 par le vendeur ?
On sait parfaitement qu'un acheteur ne vondrait pas se porter acqu6reur d'une propri6t6 sans connaltre exactement les entr6es qui affectent cette proprit6 an bureau d'enregistrement: meme, a part le contrat de vente lui-m~me, ce que 1'acheteur a le plus d'intr&t A avoir c'est la situation daiis laquelle 1'immenble vendu se trouve an bureau d'enregistrement.
La chaine des titres peut 6tre parfaite; mais, par coitre, si un des vendeurs ant6rieurs avait dispos6 de sa propri6td entre les mains de deux acheteurs, celui qui aurait un titre parfait h la proprit6 serait celui qui aurait fait enregistrer son titre d'abord. D'un autre ctd, un acheteur prudent ne paierait jamais un montant consid6rable sur la propri6th en acompte sur son prix de vente sans connaitre exactement les hypothbques qui doivent affecter cette propri6t&l.
Alors le certificat d'enregistrement est done des titres les plus importants que Facheteur doit se procurer.
Troplong, en discutant 1article 1615 duI Code Napolbon, dit (No. 324) :- A Selon Boileux, tons les actes qui sont une garantie pour Placqu6reur doivent tre livrbs Pacheteur. Laurent et Mourlon sont aussi du mme avis. Or, il est incontestable que le certificat, Kous nos lois d'enregistrement, est absolument ncessaire pour 6tablir qui est le v~ritable propri6taire d'un inmeuble. Ces certificats d'enregistrement sont g6ndralement assez dispendieux, surtout dans un cas comine celuici oit il y a plusieurs lots on parties de lots qui font partie du contrat de vente. Il est done extremement utile pour Pacheteur d'avoir ce certificat du r6gistrateur en sa possession et le vendeur, je crois, devrait
6tre oblig6 de le remettre A son acheteur.
C'est P'opinion 6mise par Bouchard dans une
6tude renarquable qu'il a faite sur la matibre et qui se trouve aw premier volume de la Revue L6gale,
Nouvelle Srie.
C'est aussi la dcision rendue par 'Honorable Juge
Mathieu, un ancien notaire et l'un de nos jurisconsultes les plus distinguds, dans une cause de La Ban que de Ville-Marie v. Kent (1).
L'Honorable Juge Bruneau, dans une cause de
Saudv v. Picard(2), en est venu 6galement h cette conclusion.
Pour ces raisons, l'appel doit 6tre maintenu et l'action du demandeur intim6 doit 6tre renvoy~e avee d6pens de cette cour et des cours inf~rieures.
Appeal dismissed with costs.
Solicitor for the appellant: C. A. Archambault.
Solicitors for the respondent: Lamothe, St. .Jacques G
Lamothe.
ACTION-Illicit contract-Lottery-Sale purchaser pdtitoire-Right of recovery-Ultra vires- Legal maxim-Notary.] D. sold lands to incorporated company for the purpcse assisting in carrying on a lottery scheme and, subsequently, conveyed the same lands to the plaintiff, who brought an action, au pititoire, claiming the lands and to have the deed to the company set aside.- Held, per Fitzpatrick C.J. and Anglin and
Brodeur JJ., that the conveyance to the company was void for illegality and that the plaintiff had a right action to be declared owner of the lands subsequently conveyed to him and to have the prior conveyance to the company set aside as having been granted for illicit consideration. Lapointe v. Messier Can. S.C.R.
followed.-Per Duff J. In the circumstances the case the pretended contract was ultra vires and void and no right property passed to the company.
Ashbury Railway Carriage and Iron Co. v.
Riche (L.R. H.L. followed.
further, as the notary before whom the deed in question was executed was, at the time its execution, an official of the the deed was without validity as an authentic conveyance the lands to the company.-Per Idington J. dissenting.
the plaintiff obtained his conveyance in circumstances which placed him in the same position as the vendor, who had knowingly entered into the illicit contract with the company and to whom the right recovery was not open, there could be no relief given by the courts as prayed in the action.-Judgment appealed from
(Q.R. S.C. affirmed, Idington J.
2--Railays-Shipping contract-Carrying person in charge of live stock-Free pass-Release from' liability-A pproved form-Negligence-Action dependents- Conflict of laws.] The shipping bill live stock, to be carried from Manitoba to its destination in the Province Quebec, was in a form approved by the Board
Railway Commissioners and provided that, if the person in charge the stock should be carried at a rate less than full passenger fare on the train by which the stock was transported, the company should be free from liability for death injury whether caused by the negligence the company or its servants. travelled by the train in charge of the stock upon a "Live-Stock Transportation Pass" and signed conditions indorsed English thereon by which he assumed all risks injury and released the company from liability for damages to person property while travelling on the pass, I whether caused by negligence or otherwise.
While train was passing through the Province Ontario, an accident happened through the negligence the company's employees and C. was killed.
In an action by his dependents, instituted in the Province Quebec, it was shewn that could neither read nor write, except to sign his name, and that he only understood enough English to comprehend orders in respect his occupation as a stock-man; there was no evidence that the nature of the conditions was explained to him.-Held (Fitzpatrick C.J. dissenting), that the railway company was liable for -damages in the action by the dependents.-Per Davies, Idington, Duff and Brodeur JJ. (Fitzpatrick that, as could not have known the nature the conditions or that they released the company from liability, and the company had not done what was reasonably cient to give him notice the conditions on which he was being carried, the company was liable in damages either under the law Ontario or that Quebec.- Per Anglin J.-Although no action would lie in Ontario unless the deceased would have had a right of action, had he survived, and such an action would have been barred there by the contract signed by him, nevertheless, in Quebec, where there is no such rule of law, the action would lie, though the wrongful act had been committed in Ontario, as it was a class actionable in Ontario.
Machado v. Fontes (
Q.B.
Company-Dominion corporation- Provincial registration-Juristic disability-Right of action-Contract-Carrying on business within province-Legislative jurisdiction-R.S. ss.
10-Non-compliance with S.C.
Rule- Costs.] company, having its chief place business in the Province Quebec and incorporated under the Dominion statute with power to trade and carry its business throughout the Dominion
Canada, did not comply with the provisions the "Foreign Companies Act,"
R.S. Sask., ch. requiring registration previous to carrying on business within the Province Saskatchewan.
In the ordinary course its business, sold and brought certain machinery into the province and did the work installing it therein for a price which included setting it up and starting it working.
action for the contract price was dismissed by the judgment the trial court
West. W.R. and this judgment was affirmed by the Supreme Court
Saskatchewan on the grourd that the unregistered extra-provincial was denied the right action in the courts the province by the tenth section the "Foreign Companies Act."
On appeal to the Supreme Court of Canada, the judgment appealed from (7
West. .W.R.
Idington J.-The mere setting up and starting the working the machinery the extra-provincial company did not constitute the carrying on business the Province Saskatchewan within the meaning of the "Foreign
Companies
Act."-Per Anglin J.-The installation the plant was a substantial part the consideration the, contract and, consequently, the unregistered extra-provincial company would be denied the right enforcing its claim by action the courts the province under the provisions the tenth section the "Foreign Companies Act," but, inasmuch as the legislation in question had the effect depriving the extra-provincial company the status, capacities and powers which were the natural and logical consequences its incorporation by the
Dominion Government, it is ultra vires the provincial legislature and inoperative for the purpose depriving the company of its right to maintain the action in the courts. John Deere Plow
Company v. Wharton applied.-Costs were refused the appellant, on the allowance of the appeal, in consequence of non-compliance with Supreme Court Rule No. in respect the printing the statutes regarding which questions were raised.
4- Lease of land-Special condition- Promise of sale-Option-Pacte de prif- 6rence- Unilateral contract-Real rightsaction.] In lease lands for the term registered, the sor agreed to sell the property to the lesthe term the lease.
It was also stipulated that in the event a proposed sale After the expiration about two years and conditions of the proposed sale and, veyance in which the latter regard to exercising- his option; the rights of the lessee under the deed de prifirence were accessory to the contract lease and created a real right in favour of the lessee which was capable of The registration of the deed of lease and actual knowledge by the purchaser of the rights of the lessee thereunder placed P. in the position of a purchaser in bad faith and, consequently, he became bound by promise sale and pacte prifdrence, the regisiry laws the Province Quebec. Under the laws that province not render such purchaser liable to a lease, (lid not impose upon the lessee
......
5-Libel-Business reputation-Action
-Practice-Evidence-Special damages- New trial ........................
6-Rectification of register-"Trade Mark and Design Act" - Jurisdiction of Exchequer Court.......................
ADMIRALTY LAW-Maritime law-Tug and tow-Contract of navigation-Collision of tug-Liability of tow-Foreign ship- Proceedings in foreign court-Jurisdiction in Canada.] The American tug "A. L.
Smith" was ascending the River St. Clair having in tow the barge "Chinook," the two being engaged in the business their common owner. The "Chinook" having no propelling power nor steering apparatus the navigation was controlled by the officers and crew the tug, the tow being attached by a line fifteen feet long. They kept on the American side and the
"Smith"
sheered and collided with a barge being towed down, causing it to sink.-Held, affirming the judgment the
Exchequer Court Ex. C.R. Da- ADMIRALTY LAW-- Continued. vies and Anglin JJ. dissenting, that the tug and tow must be regarded as one ship and each was liable for the consequences the collision.
The "American" and the "Syria" (L.R. P.C. discussed and distinguished.-Per Davies and Anglin JJ. dissenting, that as the "Chinook" took no part in the navigation, and there being no master and servant relationship between her and the "Smith," she should not held liable.-Shortly after the collision the owner brought action in a United States court to limit the liability the "Smith" and the extent her liability was fixed at
Later the two ships were seized in Canadian waters, taken into a Canadian port and released on receipt a bond by a guarantee company conditioned to pay any amount awarded against either or both. The action in rem was then proceeded with, resulting in both ships being condemned. -Held, that the proceedings United States did not oust the Canadian court jurisdiction.-Held, per Idington J.-The defendants are not entitled to limitation the damages under United States or Canadian statutes, the same I not having been pleaded nor any evidence it produced.-Per Davies and Anglin JJ.-As the collision occurred in the domestic waters the foreign ship held at fault the extent her liability must be determined by the lex loci commissi delicti, and the damages should be limited to the value the "Smith" immediately after the collision.-Held, per Duff J. following the "Dictator" P. and the "Gemma" P. that as the owners appeared and contested the I liability the ships they became parties to the action and subject to have personal judgment pronounced against them for the amount damages properly recoverable for the negligence their servants. The trial judge having held, on the sole issue fact raised at the trial, that the "Smith,"
as between her
"Moyles," was solely to blame, the appellant owners were primd facie liable for the full amount damages suffered. Assuming, however, that if the "Chinook" was free from blame, they were entitled to the benefit of the United States laws limiting their liability to the value the offending res, then, as this issue was not raised or tried in the Exchequer Court, they could only succeed if the facts in evidence conclusively demonstrated the innocence the "Chi- ADMIRALTY LAW-Continued.
nook"
or, in other words, that the
"Smith" and "Chinook" were not identified for the purpose assigning liability, the question identification being a question fact depending upon the particular circumstances.
"A. L.
AMENDMENT
See 5.
Court of Review-Modi fication of trial judgment-Affirmance-"Supreme Court Act,"
R.S.C., 40.] An action to restrain the flooding of the plaintiff's land from the defendants' railway ditch, was maintained by the Superior Court and an order made directing the railway company to construct the necessary works to cause the trouble to cease within time mentioned, failing which the plaintiff was authorised to do the works at the company's expense.
On an appeal from this judgment, the Court Review, its own motion, added more specific directions as to the works to be done and, instead authorizing the plaintiff to construct the works, in case of default, reserved his recourse for future damages and dismissed the appeal.-Held, that the judgment the Court Review had confirmed that the court first instance and, therefore, an app6al therefrom would lie to the Supreme Court Canada under the provisions section the preme Court Act," R.S.C ch.
Hull Electric Co. v. Clement Can.
S.C.R. followed.
2-Matter in controversy-Quantum damages-Jurisdiction-3 & 4 Geo. V.
Held, per Anglin J.-The substantive right in controversy on the appeal is the quantum damages; that against; they were, thetefore, not deprived a "substantive right in controversy in the action" within the meaning that phrase in clause & Geo.
sec. 1, and the appeal should be quashed for want jurisdiction which
APPEAL-Continued.
would dispose the cross-appeal as well. Co.. 283 Surrogate Court-Manitoba "Succession Duties Act"-Persona designata- Jurisdiction to entertain appeal.] Idington and Anglin JJ. questioned the jurisdiction the Supreme Court Canada under sub-section section the "Supreme Court Act," to entertain an appeal in a matter or proceeding originating in the Surrogate Court Manitoba.- Anglin J. suggested that in the proceedings provided for by section the Manitoba Duties the judge the Surrogate Court would act as persona designata and that there may not be an appeal from his order to the Supreme Court Canada.
In re Mum Es- 4-Negligence-Defective system-Injury employee-Evidence-Verdict-Practice-Exception to judge's charge-New 5- Company-Dominion corporationof action-Contract-Carrying diction-R.S. Sask. ss. ......... 6of pleadings-Jurisdiction-Costs-Settlement of minutes..................... ASSIGNMENT-Lessor and lessee-Lease of adjoining lots-Separate demises-Assignment to one person-Termination lease-Valuation of Improvements-Valuation as a whole-Consent of counsel.. BANKS BANKING-Company law -Trading company-Powers-Contract surelyship-R.S.O., ...... BILL OF SALE-Transfer between near relatives-Preferential assignment-Suspicious circumstances-Corroborative evidence-Bona fides-Practice.] Where a near relatives is impeached as being in fraud creditors and the circumstances attending its execution are such as to arouse suspicion the court may, as a matter prudence, exact corroborative'evidence in support the reality the consideration and the bona fides the transaction.-Judgment appealed from B.C. Rep. West.
W.R. reversed.
Koor v.
BOARD OF COMMISSION- Shipping Contract
Carrying person in charge of live stock- Free pass-Release from liability proved form-Negligence-Action pendents -- Conflict of laws - Act," R.S.C., s. Section ch. provides that "no contract, condition, notice by the company impairing, restricting or limiting its liability in respect the carriage any traffic shall
.
.
.
relieve the company from such liability unless such class
.
.
.
shall have been first authorized or approved by order or regulation the
Board.
The Board may, in any case or by regulation, determine the extent to which the liability the company may be so impaired, restricted or limiteh."
The Board Railway Commissioners made an interim order permitting the use by the company, until otherwise determined, the shipping form used, but did
Held, per Fitzpatrick C.J. and Davies and
Anglin JJ. (Idington, Duff and Brodeur
JJ. contra), that the contract signed deceased was one a class contracts authorized by the Board.-Per Duff J.- The contract signed by deceased could not have the effect limiting the liability the company in respect death because it was not in a form authorized approved by the Board Railway Commissioners and there had been no order or regulation made by the Board expressdetermining the extent to which the company's liability should be impaired, restricted or limited as provided by subsection section 340 the "Railway
PARENT............................
RAILWAY COM.-Continued. 2-Expropriation -Materials for construction of railway-Compensation-Date for ascertainment of value - Approval 3-Construction of statute- "Railway tolls-R.S. 66, s. BOND-Insurance - Fidelity bond - Untrue representations-lateriality-H.S.O. BROKER-"Real estate agent"-Sale land-"Listing" broker's books-Principal and agent-Authority to make contract.] Where the principal has merely instructed a broker to place lands on his list properties for sale, such "listing" does not itself constitute an authorization for the sale the lands on behelf his principal.-Judgment appealed from West. W.R. affirmed.
WILKINSON......................... BUILDERS CONSTRUCTORS Negligence-Defective system-Tnjury to employee-Evidence- Vcrdict-Practice appeal- New trial................... CARRIERS -Railways -Shipping tract-Carrying person in charge of live stock-Free pass -Release from liability- Approved form-Negligence-Action by dependents-Conflict of laws-"Railway Act," R.S.C. c. ...... 1- "American," The, v. The "Syria" (L.R. P.C. discussed and distinguished.......................... 2-Arnprior, Town of, United States Fidelity and Guarantee Co. Ont. L.R. ......... 3-Ashbury Railway Carriage and Iron
Co. v. Riche (L.R. H.L. followed.
.. ............ . ........ .. .. .......
3a-Alorney-General v. Bradlaugh (14
Q.B.D. referred to.............
4-Banque Ville-Marie v. Kent (Q.R.
S.C. referred to.............
B dard v. Phoenix Land and Improvement Co. (Q.R. S.C. affirmed..
Booth v. The King Ex. C.R.
7-Caeron v. Cuddy ( A.C.
8-Campbell v. Irwin Ont. L.R.
9--Chicoutimi Pulp Co. v. Price (Q.R.
K.B. affirmed...............
10-Cotton v. The King A.C.
1Oa-Curry v. The King Can. S.C.R.
referred to.....................
"Dictator," The ( P.
follow ed ...........................
Evangeline Fruit Co. v. Provincial
Fire Ins. Co. N.S. Rep. reversed
....................
13-Field v. Rutherford U.C.C.P.
referred to.....................
( follow ed ...........................
15-Greer v. Canadian Pacific Rway. Co. (32 Ont. L.R. affirmed......... "Halley," The (L.R. P.C. referred to......................... Hull Electric Co. v. Clement Can. S.C.R. followed.......... 18-Jackson v. Grand Trunk Rway. Co. Can. S.C.R. referred to.... Jackson v. Hyde U.C.Q.B. referred to......................... 20- Johnson v. Southern Pacific Co. Jones v. Spencer L.T. referred to ........
...................
22-Jordan Provincial Provident Institution Can. S.C.R. followed . . . . . . . . .. .. . ..
. . . . . . . .. . . . . . . . . . . 23-Koop v. Smith B.C. Rep. West. W.R. 416;
D.L.R. 440) reversed............................ 24--Lapointe v. Messier Can. S.C.R. followed....................... 25-Linde Canadian Refrigerator Co. v. Saskatchewan Creamery Co.
West. .R. reversed.................. 26- McArthur v. Dominion Cartridge Co. ( A.C. referred to.... 27- Machado v. Fontes ( Q.B. 28-Metropolitan Asylum District v.
Hill L.T. referred to........
Muir, in re Estate of lan. R.
30-Ontario Gravel Freighting Co.
L. Smith" and "Chinook"
Ex. C.R.
31-Parent v. Canadian Pacific Rway.
Co. (Q.R. K.B.
S.C.
Omychund Barker (1 Atk.
referred to.......................
32-Parker v. Capital Life Assurance
Co. N.S. Rep. affirmed .....
33-Peacock v. Wilkinson (7 West.
34- Penrose
Knight (Cout. Dig.
referred to....................
35-Phelan v. Grand Trunk Pacific
Rway. Co. Man. R. affirmed.
36- Poirier Archambault (Q.R.
K.B. affirmed..................
Quibec, Citd Mahoney (Q.R.
K.B. applied...............
38-Quebec Fire Ins. Co. v. St. Louis
Moo. P.C. applied .........
38a-Queen's Case, The Brod. & Bing.
referred to.....................
Rattray v.
Young
(Cout. Dig.
CASES -ontinued.
40-Raynor v. Toronto Power Co. Ont. L.R. reversed............ 40a-Rex v. Lai Ping B.C. Rep. referred to.........................
41-Rex v. Lovitt ( A.C. followed......................... 42- Rex v. Shajoo Ram D.L.R. 30 West. L.R. affirmed.......... 43-St.
Denis v. Querillon (Q.R. K.B. reversed................. 44-Saskatchewan Land and Homestead Co. v. Calgary and Edmonton Co. Alta. L.R. affirmed......... 4&-Saud v. Picard Rev. Jur. referred to..................... 46- Toronto Rway. Co. v. Fleming S.C.R. to 47-Turgeon v. The King Ex. C.R. 48-Union Bank v. McKillop & Sons Ont. L.R. affirmed.......... See 3
49-Vansickler v. McKnight Construction Co. Ont. L.R. affirmed.. 50- Vivian & Co. v. Clergue Ont. L.R. affirmed.................. "Vulcan" Trade Mark, in re (15 Ex. C.R. affirmed............. Weir v. Hamilton Street Rway. Co. L.R. reversed.......... 53-White v. Victoria Lumber and Manufacturing Co. ( A.C. followed
....................
54- Willson v. Thomson Ont. L.R.
affirmed in part and varied..... 307
55-Wood v. Grand Valley Rway. Co.
L.R.
1- Arts. (Registry laws).
Arts. (Obligations)...
3-Arts.
(S ale)..............................
COMPANY-Powers-Sale of business premises-Seal-Agreement signed cer.] An industrial company, unless forbidden by its charter, has power to sell its business premises in order to secure others more suitable, and contract such sale may be valid though not under the company's seal.-Where the contract executed by an officer the company to whom the necessary authority might given the other party thereto not called upon to ascertain proper steps had been taken to clothe him with such authority; it is sufficient that he is the apparent agent the company to transact business the kind and that the power which he purports to exercise such as, under the constitution the company, he might possess.-Per Idington J. dissenting.-A person dealing with a minor officer a company supposed to know what powers he has by by-law, passed in the manner provided by its charter, to enter into any unusual trans- In this case it was not proved that the officer signing the contract was empowered to do so, and as the company was not authorized to deal in real estate the transaction not within the authority.
contract was, therefore, not binding the company.-Judgment the Appellate
Division Ont. L.R. affirmed.
Co. V.
SICKLER............................
COMPANY-Continued.
2-Dominion corporation registration-Juristic disability-Right action-Contract-Carrying on business compliance with Rule-Costs.] A company, having its chief place business in the Province Quebec and incorporated under the Dominion statute with power to trade and carry its business throughout the Dominion Canada, did not comply with the provisions the "Foreign Companies Act," R.S. Sask., requiring registration previous to carrying on business within the Province Saskatchewan.
In the ordinary course of its business, it sold and brought certain machinery into the province and did the work installing therein for a price which included setting it up and starting it working.
An action for the contract price was dismissed the judgment the trial court West. W.R. and this judgment was firmed by the Supreme Court Saskatchewan, the ground that the unregistered extra-provincial company was I denied the right action in the courts the province by the tenth section the "Foreign Companies Act."-On appeal to the Supreme Court Canada, the judgment appealed from West. W.R. Idington J. The mere setting up and starting the working the machinery by the extra-provincial company did not constitute the carrying on business in the Province Saskatchewan within the meaning the "Foreign Companies Act."-Per Anglin J. The installation the plant was a substantial part the consideration the contract and, consequently, the unregistered extra-provincial would be denied the right enforcing its claim by action in the courts the province under the provisions the tenth section the "Foreign Companies Act," but, inasmuch as the legislation question had the effect depriving the extra-provincial company the status, capacities and powers which were the natural and logical consequences of its incorporation by the Dominion Government, it is ultra vires the provincial legislature and inoperative for the purpose depriving the company its right to maintain the action in the provincial courts. John Deere Plow Company v. Wharton
Costs were refused the appellant, on the COMPANY-Continued.
allowance the appeal, in consequence non-compliance with Supreme Court
Rule No. in respect the printing the statutes regarding which questions were raised.
3-Trading com pany-Powers-Con tract of suretyship-R.S.O.
industrial company incorporated under, and governed by the "Ontario Companies
Act," R.S.O. ch. has no power to guarantee payment advances by a bank to another company whose sole connection with the guarantor is that a customer, for the general purposes the latter's business and such a contract suretyship is ultra vires and void.-Judgment appealed against Ont. L.R.
SoNs..................
4-Libel-Business reputation-Action
-Practice--Evidence-Special damages- New trial........................
5-Contract-Purchase of railway bonds
Extension
Breach of contract-Damages-Personal liability of President of company-Appeal
CONDITION-Lease of land-Special condition-Promise of sale-Option-Pacte prdftrence-Unilateral contract-Real rights-Registry laws-Arts,
C.C.-Specijic performance-Dam ages- Right of action .....................
CONFLICT OF LAWS-Practice-Common employment-Defence-Foreign law- Legislation in province where injury curred.] Per Anglin J. (Idington J. contra)-The defence common employment, although taken away by legislation in the Province Saskatchewan, where the injuries sued for were sustained, was available as a defence in the courts
Manitoba, where the action was brought.
The "Halley" (L.R. P.C. referred
CONFLICT LAWS-Continued. 2- Railways-Shipping contract-Carrying person in charge of live stock-Free pass-Release from liability-Approved form-Negligence-Action dependents- "Railway Act," R.S.C., s. ........ CONSTITUTIONAL legislation-Succession duties-Taxation- Specialty-Construction of statute-Severable provisions-R.S.M. 5 (Man.)-4 & Edw. VII., s. 4 (Man.)-Appeal-Jurisdiction-'Surrogate Court-Persona designata.] M., who died June, had his domicile in Manitoba Canadian Pacific Railway Company in main the property M. who was to rereduction the price for which they had also owned lands chasers. The agreements contained no lands.
The executors denied the right the Government Manitoba to collect succession duties in respect these debts Act," R.S.M., ch. sec. as re- Edw. VII., ch. 4.-Per curiam.- Manitoba and, as such, was liable toba statute. Also, Davies J. dissenting, that under the agreements for sale the "Kirkella Lands" a covenant to pay CONSTITUTIONAL LAW-Continued.
of Manitoba and were liable for succession quently, the legislation imposing them is intra vires of the provincial legislature.benefit of probate.-Per Duff J. In so duties in respect of property having a situs within Manitoba it is intra vires of the provincial legislature. Rex v. Lovitt
([1912] A.C. 212) followed. In so far as the statute professes to impose duties on and without respect to the domicile of the owner, the reasoning of Lord Moulton in
Cotton v. The King ([1914] A.C. 176), applies, the result of which is that such beneficiary is domiciled abroad cannot be
"direct taxation" within the meaning of section 92 of the "British North America to the restrictions mentioned in item 2 of section 92 of the "British North America
The provisions of the Manitoba "Succes- Anglin JJ. questioned the jurisdiction of the Supreme Court of Canada under subsection (d) of section 37 of the "Supreme
Surrogate Court of Manitoba.-Anglin J.
vided for by section of the Manitoba
"Succession Duties Act" the judge of the
Surrogate Court would act as persona appeal from his order to the Supreme
Court of Canada.-The judgment appealed from (24 Man. R. 310) was affirmed. In re
CONTRACT-Illicit contract-Lottery- Sale of land-Subsequent purchaser-Action pititoire-Right of recovery-Ultra vires-Legal maxim-Notary.] D. sold lands to an incorporated company for the purpose of assisting in carrying on a lottery scheme and, subsequently, conveyed the same lands to the plaintiff, who brought an action, au pititoire, claiming the lands and to have the deed to the company set aside.-Held, per Fitzpatrick C.J. and Anglin and Brodeur JJ., that the conveyance to the company was void for illegality and that the plaintiff had the right of action to be declared owner of the lands subsequently conveyed to him and to have the prior conveyance to the company set aside as having been granted for illicit consideration. Lapointe v. Messier (49 Can. S.C.R. 271) followed.-Per Duff J. In the circumstances of the case the pretended contract was ultra vires and void and no right of property passed to the company. Ashbury Railway Carriage and Iron Co. v. Riche (L.R. 7 H.L. 653) followed. further, as the notary before whom the deed in question was executed was, at the time of its execution, an official of the the deed was without validity as an authentic conveyance of the lands to the company.-Per Idington J., dissenting. As the plaintiff obtained his conveyance in circumstances which placed him in the same position as the vendor, who had knowingly entered into the illicit contract with the company and to whom the right of recovery was not open, there could be no relief given by the courts as prayed in the action.-Judgment pealed from (Q.R. 43 S.C. 50) affirmed, Idington J. dissenting.
2- Principal and agent-Commission on sales-"Accepted orders"-Contract for sale-Construction.] A paper manufacturing company in Quebec agreed to give W. a commission of five per cent. on all "accepted orders" obtained by him in Ontario to be payable as soon as an order was shipped. Through W.'s agency a contract was entered into whereby a company in Toronto agreed to purchase from the Quebec company during one year paper of a specified kind to the extent of not less than $35,000 to be furnished from time to time on receipt of specifications and directions as to destination. When paper to the value of over $5,000 had been shipped under this contract the Toronto company refused to furnish further specifications on the ground that said paper was not satisfactory and the contract was not further performed.-Held, per Fitzpatrick C.J. and Idington J. (Duff J. contra), that the contract with the Toronto company constituted an "accepted order"
within the terms of the agreement with
W. who, as it was through the fault of his principals that the contract was not performed, was entitled to the balance of his commission on the contract price of
$35,000.-Per Davies and Anglin JJ.-If under the contract the only "accepted orders" were those filled from time to time on receipt of specifications and directions from the purchasers the discontinuance of their sending in the same was due to the failure of the vendors to furnish satisfactory paper and W. was entitled to damages for being prevented by such failure from earning his commission.
As the evidence shewed that he had done all that could be incumbent upon him to have the contract performed the measure of his damages would be his commission on the contract price.-Per Duff J. dissenting.-The only "accepted orders"
under the contract were those to be filled from time to time on receipt of specifications. As his case under the pleadings was confined to recovery of the commission on the basis of the contract with the
Ontario company being an "accepted order" and as no claim was put forward
(or investigated) at the trial on the basis the appellant having wrongfully been prevented earning his commission by procuring "accepted orders," or advanced by the appellant at any stage of the proceedings, the judgment could not be sustained on that basis unless it was clear that all the evidence bearing upon such a claim was to be found in the record.
Railways-Shipping contract-Carrying person in charge of live stock-Free pass
-Release from liability-Approved form- Negligence-Action dependents-Conjlict of laws-"Railway Act,"
1906, c. 37, s. 340.]
Section 340 of the
"Railway Act," R.S.C. 1906, ch. 37, provides that "no contract, condition, .
.
.
or notice made or given by the company impairing, restricting or limiting its liability in respect of the carriage of any traffic shall
. . . relieve the company from such liability unless such class of contract . . . shall have been first authorized or approved by order or regulation of the Board.
(2) The Board may, in any case or by regulation, determine the extent to which the liability of the company may be so impaired, restricted or limited." The Board of Railway Commissioners made an interim order permitting the use by the company, until otherwise determined, of the shipping form used, but did Held, per Fitzpatrick C.J. and Davies and Anglin JJ. (Idington, Duff and Brodeur JJ. contra), that the contract signed by deceased was one of a class of contracts authorized by the Board.-Per Duff J.- The contract signed by deceased could not have the effect of limiting the liability of the company in respect of death because it was not in a form authorized or approved by the Board of Railway Commissioners and there had been no order or regulation made by the Board expressly determining the extent to which the company's liability should be impaired, restricted or limited as provided by subsection 2 of section 340 of the "Railway PACIFIc Ry. Co. 4- Purchase of railway bonds-Consideration-Extension of line-Breach of contract-Damages-Personal liability of president of company-Appeal-Jurisdiction.] An agreement in writing provided that in consideration of the purchase of bonds of the Grand Valley Railway Co. by certain manufacturing companies and other citizens of St. George, Ont., P., president of the company, undertook and agreed on his own behialf and on behalf of his company to procure a through traffic arrangement with the Canadian Pacific Ry. Co. so as to give St. George the benefit of competitive freight rates; that he would do all things lawful to secure such arrangement; and that the extension of the Grand Valley road to St. George and the securing of said arrangement would be proceeded with at once and with the greatest possible despatch.
The agreement was signed "The Grand
Valley Ry. Co., J. Pattison, Pres't."
Some work was done on the extension of thq line to St. George, but it was never completed.
The purchasers paid worth bonds on which dividends were paid for five years when payments ceased. The purchasers brought action against the company and P.
claiming the return of the money paid damages for breach contract.
trial judge held Ont. L.R. that each the purchasers was entitled to substantial damages and gave them judgment for and directed return the bonds on payment. The Divisional
Court Ont. L.R. held that the individual purchasers were only entitled to nominal damages and gave judgment for the corporate purchasers for the amount they paid for the bonds. The
Appellate Division Ont. L.R. held that all were entitled to substantial damages, but ordered a reference as the evidence was not sufficient to determine the amount.
All held P. personally liable well as the company.
The purchasers appealed to the Supreme Court Canada, asking that the judgment at the trial be restored. The defendants by crossappeal claimed dismissal the action.- Held, Idington J. dissenting, that the judgment the Appellate Division be affirmed.-Per Davies J., while not formally dissenting from the conclusion to affirm, that the damages might be assessed at as at the trial.-Per
Idington J. That the individual purchasers are only entitled to nominal damages; that the maximum to be allowed the corporate purchasers is the amount they subscribed for the bonds; and that the order reference should be modified accordingly.-Held, per Anglin J. The substantive right in controversy on the appeal is the quantum damages; that against; they were, therefore, not deprived of a "substantive right in controversy in the action" within the meaning of that phrase in clause of & 4
Geo. V. ch. sec. 1, and the appeal should be quashed for want jurisdiction which would dispose the crossappeal as well.
5-Sale of mining land-Substiuted purchaser-Reservation of claim against original purchaser-Forfeiture of second contract-Sale of land to other parties-Effect on reserved claim.] In June, & Co., by agreement in writing, contracted to sell, and C. to buy, mining property to be paid $5,000 down and the balance in annual instalments $24,000. The $5,000 was paid and in March, when an instalment was overdue and the second accruing, a new agreement was executed, to which C. was a party, for sale the property to a mining company the same price and on the same terms. This agreement provided that nothing it should affect the right the vendor to claim from C. the amount payable under the original contract up to March, otherwise the latter was to be merged the new contract.
The mining company made default in their payments and, as provided in their contract, the vendors gave notice that the contract was at an end and, later, sold the property for $75,000.
They then took action against for the amount unpaid on the original agreement and recovered
After the final sale the mine C. applied for and obtained from a judge an order declaring that V. & Co. were not entitled to enforce their judgment against him except for the costs.
On appeal from the affirmance this order by the Appellate Division.-Held, affirming the decision the Appellate Division Ont. L.R. that by extinguishing the interest the mining company in the land and then selling it V. & Co. had put it out their power to place C. in the position he was entitled to occupy on making payment and had thus disabled themselves from enforcing their judgment. & CLERGUE........................... 6- Con tract-Construction-Sale offoxes -Mixed breeds.] By contract in writing 0. agreed to sell to C., who agreed to buy, two black foxes "to be the offspring purchased the from Charles Dalton and R. Oulton in the year 1911."-Hleld (Davies and Duff JJ. dissenting), that the proper construction the contract was that the two foxes to be sold must have both Dalton and Oulton parentage and G. could not be compelled to deliver a pair bred from the Dalton strain only.
GLouES......................... 7-Sale of land-Deferred payment- Omission of date-Completion of Contract- Acceptance purchaser-New term- Instruments of title-Delivery-Arts.
A contract for the sale land, in the Province Quebec, by which the date of the deferred payment an instalment the price is not fixed is, nevertheless, according to the law that province, a completed contract which specific performance may be enforced.
(Duff and
Brodeur JJ. contra.)-In his letter accepting the offer sale, the purchaser requested the vendor to send to his notary the documents title and the registrar's certified abstract the deeds affecting the property.-Held, per Fitzpatrick C.J.
and Anglin J. that this request did not intend the stipulation a new term to the contract.-Per Brodeur J. Although the vendor is obliged to furnish the documents title, including the registrar's certified abstract, yet, in the present case, as it appeared that the vendor made it a condition that the titles and certificate were not to be delivered into the possession the purchaser the request in the letter acceptance was a stipulation a new term which left the contract incomplete. La Banque Ville Marie v.
Kent (Q.R. S.C. and Saund v.
Picard Rev. de Jur. referred to.- Fidelity
Untrue representation-lateriality-R.S.O., s.-s. 2................
9-Broker-"Real Estate Agent"-Sale of land-"Listing" on broker's books- Principal and agent-Authority to make
10-Company-Powers-Sale of business premises-Seal-Agreement signed cer.............................
11-Company-Dominion corporationof action-Carrying on business compliance with S.C. Rules-Costs... 400
Constitutional law-Provincial legislation
-Specialty-Construction statute- Severable provisions-R.S.M., s. 5-4 & Edw. VII., 4 (Man.)-Appeal-Jurisdiction ....... 13-Lease of land-Special condition- Promise of sale-Option-Pacte pr4firence-Unilateral contract-Real rights- COSTS-Supreme Court Rule No. Printing statutes-Refusal of costs.] Costs were refused the appellant, on the allowance of the appeal, in consequence of noncompliance with Supreme Court Rule No. in respect the printing the statutes regarding which questions were raised. 2-"Expropriation Act," R.S.C. ss. 31-Abandonment of proceedings-Compensation-Allowance of interest -Construction of statute-Practice -- Taxation of costs-Solicitor and client-Reimbursement of expenses-Interpretation formal judgment-Reference to opinion judge.] While the owners still continued in possession lands in respect which expropriation proceedings had been commenced under the "Expropriation Act," R.S.C. ch. and before the indemnity to he paid had been ascertained, the proceedings were abandoned, no special damages having been sustained.- The trial judge, by his written opinion, held that the owners were entitled to be fully indemnified for their costs as between solicitor and client and for all legitimate and reasonable charges and disbursements made in consequence the proceedings which had been taken. The formal judgment provided merely that costs should be taxed as between solicitor and client.-Per Davies, Idington, Anglin and Brodeur JJ. - In the taxation costs, the registrar should follow the directions given in the judge's opinion to interpret the formal judgment as framed. Duff J. COSTS-Continued.
contra.-Per Duff J. The registrar, in taxing costs, is required by law to follow the terms of the formal judgment and it is not open to him to correct it in order to make it accord with his interpretation of the opinion judgment. The court appealed from, however, may correct the formal judgment in so far as it does not express the intention of the opinion judgment.
Co. v. KING....................
3-Practice-Recalling judgment-Deof pleadings-Jurisdiction-Settlement minutes.] On an application, subsequent to the transmission the formal judgment to the court below, to recall the judgment and vary the minutes by adding a direction respecting the amendment errors in the judgment appealed from and the plaintiff's declaration, the application was allowed only upon payment the costs thereof by the party moving inasmuch as it had been his duty to have seen that the provision was inserted at the time the settlement the minutes
COUNSEL-Lessor and lessee-Lease adjoining lots-Separate demises-Assign- Valuation of improvements-Valuation as a whole-Consent of counsel...........
CRIMINAL LAW-Perjury-Form of oath
-Practice-Voire dire.] After examination on voire dire, in a judicial proceeding, a person called as a witness (with the assistance an interpreter) went through a ceremony accepted as the taking an class, knowing and intending that his testimony should be received and acted been duly sworn.
Rex v. Lai Ping (11
B.C. Rep. 102); The Queen's Case (2
Brod. & Bing. Omychund v. Barker
(1 Atk. 21); Attorney-General v. Brad- CRIMINAL LAW-Continued. D.L.R. West. L.R. affirmed. RAM THE KING................... CROWN LANDS-Licence to cut timber -Indian lands-R.S.C., ss. 54, 55--Licence for twelve months-Regulations-Renewal of licence ............ DAMAGES-Contract-Purchase of railway bonds-Consideration-Extenion line-Breach of contract-Personal liability of president of company-Appeal-Jurisdiction.] An agreement in writing provided that in consideration the purchase bonds the Grand Valley Railway Co. by certain manufacturing companies and other citizens St. George, Ont., P., president of the company, undertook and agreed on his own behalf and on behalf of his company to procure a through traffic arrangement with the Canadian Pacific Ry. Co. so as to give St. George the benefit of competitive freight rates; that he would do all things lawful to secure such arrangement;
and that the extension of the Grand Valley road to St. George and the securing of said arrangement would be proceeded with at once and with the greatest possible despatch. The agreement was signed "The Grand Valley Ry. Co., A. J. Pattison, Pres't." Some work was done on the extension of the line to St. George, but it was never completed.
The purchasers paid for $10,000 worth of bonds on which dividends were paid for five years when pay-. ments ceased. The purchasers brought action against the company and P. claiming the return of the money paid or damages for breach of contract. The trial judge held (26 Ont. L.R. 441) that each of the purchasers was entitled to substantial damages and gave them judgment for $10,000 and directed return of the bonds on payment. The Divisional Court (27 Ont. L.R. 556) held that the individual purchasers were only entitled to nominal damages and gave judgment for the corporate purchasers for the amount they paid for the bonds. The Appellate Division (30 Ont. L.R. 44) held that all were entitled to substantial damages, but ordered a reference as the evidence was not sufficient to determine the amount. All held P. personally liable as well as the company.
The purchasers DAMAGES-Continued.
appealed to the Supreme Court of Canada, asking that the judgment at the trial be restored. The defendants by crossappeal claimed dismissal of the action.- Held, Idington J. dissenting, that the judgment of the Appellate Division be affirmed.-Per Davies J., while not formally dissenting from the conclusion to affirm, that the damages might be assessed at $10,000 as at the trial.-Per
Idington J. That the individual purchasers are only entitled to nominal damages; that the maximum to be allowed the corporate purchasers is the amount they subscribed for the bonds; and that the order of reference should be modified accordingly.-Held, per Anglin J. The substantive right in controversy on the appeal is the quantum of damages; that against; they were, therefore, not deprived of a "substantive right in controversy in the action" within the meaning of that phrase in clause (e) of 3 & 4
Geo. V. ch. sec. 1, and the appeal should be quashed for want of jurisdiction which would dispose of the crossappeal as well.
RW Co..........................
2-Maritime law-Tug and tow-Contract of navigation-Collision of tug-Liability of tow-Foreign ship-Proceedings in foreign court-Jurisdiction in Canada.
3-Lease of land-Special condition- Promise of sale-Option-Pacte de prdfirence-Unilateral contract-Real rights- Specific performance-Right of action.
DEED-Company-Powers-Sale of business premises-Seal-Agreement signed by officer...........................
Simple contract-Specialty................ 428
ELECTRIC RAILWAY
EMINENT DOMAIN
EMPLOYER AND EMPLOYEE-Negligence-Power company-Accident to employee-Injury from supposed dead wire- Duty of employer-Proper system.] A power company is not liable for injury to an employee from contact with an electric wire represented to be harmless, but which had, in some way become charged, when it is shewn that every reasonable precaution had been taken for the safety of employees and there is nothing which proves or from which it can be inferred that the accident was due to the negligence of some person for which the company was responsible.-Per Idington J. dissenting. The only reasonable inference from the evidence is that the was caused by negligence; therefore, as decided by McArthur v. Dominion Cartridge Co. A.C. and Toronto Railway Co.
Fleming (47 Can. S.C.R. 612), it is not necessary to determine precisely how such negligence produced the injury complained of.
There was also some evifailure to employ competent persons to superintend the work.-Judgment of the Appellate Division (32 Ont. L.R. 612) reversed, Fitzpatrick C.J. and Idington J. dissenting.
RAYNOR............................ 2--Operation of railway-Equipmentmaintain-Protection of employee-Inspection-"Inevitable accident"-Negligence- Findings of jury-Evidence-Common employment-Conflict laws-"Railway Act," R.S.C., s. 264-Construction of statute-Vis major ....... 3-Negligence-Defective system-Injury to employee-Evidence-Verdict-Practice-Exception to judge's charge-New railway regulations-Operation of trains-Negligent signalling- Cause of injury..................... ESTOPPEL-Life insurance - Non-payment of premiums-Misrepresentation insured-Conduct.] P., in payment of ESTOPPEL-Continued.
premiums on a life policy, gave his note for one instalment and an overdue balance another.
Shortly before it matured an official the company, specially authorized to deal with the matter, informed P. that his policy had lapsed owing to the inclusion in the note of the overdue balance which was against the company rules.
In consequence this representation P. did not pay the note nor tender the amount another instalment falling due before his death.
action on the policy by the beneficiary no rule the company was proved avoiding the policy as stated.-Held, affirming the judgment appealed against (48 N.S. Rep.
Fitzpatrick C.J. and Davies J. (dissenting)
, that the company was estopped, by conduct, from claiming that the policy lapsed on non-payment of the note and subsequent instalment.-Per Davies that the non-payment of the note could not be relied on as avoiding the policy, but the estoppel did not extend to the failure to pay the quarterly premium which afterwards became due.
EVIDENCE-Bill of sale-Transfer tween near relatives-Preferential assignment-Suspicious circumstances-Corroborative evidence-Bona fides-Practice.]
Where a bill sale made between near relatives is impeached as being in fraud creditors and the circumstances attending its execution are such as to arouse suspicion the court may, as a matter of prudence, exact corroborative evidence in support the reality the consideration and the bona Jides the transaction.
Judgment appealed from B.C. Rep.
West W.R. reversed.
Koor
2--Operation of railway-Equipmentmaintain-Protection of employee-Inspection-'"Inevitable accident"-Negligence-- Findings of jury-Common employment- Conflict of laws-"Railway Act," R.S.C.,
264-Construction of statute
- Vis major........................
3-Libel-Business reputation-Action lic interest-Qualified privilege-Charge to
EVIDENCE-Continued.
-Practice-Special damages-New trial .........................
......... Negligence-Defective system-Injury to emnployee-Verdict-Practice-Exception to judge's charge-New points on appeal- New trial..................... EXCHEQUER COURT-Registration trade mark--Rectificationof register-Jurisdiction of court-Construction of statute ........ EXECUTION-Contract-Sale of mining land-Substituted purchaser-Reservation of claim against original purchaser-Forfeiture of second contract-Sale to other parties-Effect on reserved claim ..... EXPROPRIATION-"Expropriation Act," R.S.C., ss. 31-Abandonment of proceedings-Compensation- Allowance of interest-Construction of statute-Practice-Taxation of costs-Solicitor and client-Reimbursement of expenses- Interpretation of formal judgment-Reference to opinion of judge.] While the owners still continued in possession lands in respect which expropriation proceedings had been commenced under the "Expropriation Act," R.S.C. ch. and before the indemnity to be paid had been ascertained, the proceedings were abandoned, no special damages having been sustained.-Held, that in assessing the amount to be paid as compensation to the owners, under the provisions of the fourth sub-section section the "Expropriation Act," there could be no allowance interest either upon the estimated value the lands or upon the amount tendered therefor by the Government.-The trial judge by his written opinion, held that the owners were entitled to be fully indemnified for their costs as between solicitor and client and for all legitimate and reasonable charges and disbursements made in consequence the proceedings which had been taken.
The formal judgment provided merely that costs should be taxed as between solicitor and client.-Per Davies, Idington, Anglin and Brodeur JJ.-In the taxation costs, the registrar should follow the EXPROPRIATION-Continued.
directions given in the judge's opinion to interpret the formal judgment as framed.
Duff J. contra.-Per Duff J. The registrar, in taxing costs, is required by law to follow the terms the formal judgment and it is not open to him to correct it order to make it accord with his interpretation the opinion judgment.
court appealed from, however, may correct the formal judgment in so far as does not express the intention the opinion
2-Railways-Materials for construction
-Notice to treat-Statute-"Railway Act",
R.S.C., ss.
196-Compensation-Date of ascertainment of value-Order for possession- Deposit of plans-Approval of Board
Railway Commissioners..............
FELLOW SERVANT-Government railway regulations-Operation of trains- Negligent signalling-Fault of fellow servant-Common fault-Boarding moving train-Disobedience of employee-Voluntary exposure to danger-Cause of injury
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
FORECLOSURE-Mortgage - Payment instalments-Acceleration clause - Payment of part postponed-Right of foreclosure.] A mortgage provided for payment in three annual sums $2,500 each.
There was a special provision that out the last instalment the mortgagor could retain until he received a conveyance the interest an infant who, with the mortgagee, executed an agreement to convey when he became age.
There was also the acceleration clause making the whole amount due on default in paying any part.
In an action to foreclose default having been made in payment the first annual instalment, Held, affirming the decision the Appellate Division Ont. L.R. 471), which maintained the judgment at the trial Ont. L.R.
that the postponement the time for payment the $1,000, part the last instalment, did not disentitle the mortgagee to his remedy of foreclosing; but
Held, varying the judgment below, that the acceleration clause in the mortgage did not apply to the payment of
FORECLOSURE-Continued.
which was postponed; that the personal recovery against the mortgagor should not include this sum; and that the judgment below should be amended by providing that the proceedings should be stayed by payment into court of the FRAUDULENT
ASSIGNMENT - Bill of sale-Transfer between near relatives- Preferential assignment-Suspicious circumstances-Corroborative evidence-Bona fides-Practice.................... GUARANTEE-Company law Trading company-Powers-Contract of suretyship - R.S.O.1897, c.191................ of highway-Street railway-Trolley poles between tracks-Statutory authority - Protection light...................... INDIAN LANDS-License to cut timber ss. and 1 License for twelve months-Regulations- Renewal of license.] Section R.S.C. ch. (now R.S.C. ch. enacted that licenses might be issued to cut timber on Indian lands, and sec. that "no license shall be so granted a longer period than twelve months from the date thereof."
by the Governor-General in Council and sanctioned by Parliament it was provided that license holders who had complied with all existing regulations should be entitled to renewal on application.- Held, affirming the judgment the Exchequer Court Ex. C.R. that a 1 license holder who has complied with the regulations has no absolute right to a renewal as a regulation making perpetual renewal obligatory would be inconsistent with the statutory limitation twelve months and, therefore, non-operative. INSURANCE, FIRE-Fire insurance - Statutory conditions-Gasoline "stored kept" on premises-Supply kept near building-Material circumstances-Non-disclosure.] By a condition in a policy of in- INSURANCE, FIRE-Continued.
surance against fire the policy would be void if more than five gallons of gasoline were "kept or stored" at one time in the building containing the property insured.
-Held, that keeping 15 or 16 feet from said building, under an adjacent platform, a barrel of gasoline for supplying the quantity required for daily use was not a breach of such condition.-Held, also, reversing the decision of the Supreme
Court of Nova Scotia (48 N.S. Rep. 39), that as the company, when issuing the policy, knew that a gasoline engine had been installed in the building for use in manufacturing, and must be deemed to have known that a reasonable supply of gasoline for feeding it would be kept close at hand, the keeping of the barrel where it was placed was not a circumstance material to the risk, non-disclosure of which would avoid the policy.
CANADA...........
2-General Conflagration-Acts of municipal officials-Demolition of buildings - Statutory authority-R.S.Q., art.
4426-Indemnity
Subrogation
Tort
Transfer of rights to municipality-Liability of insurer.] Article 4426, R.S.Q.,
1888, empowers town corporations, subject to indemnity to the owners, to cause the demolition of buildings in order to arrest the progress of fires; in the absence of a by-law to such effect power is sary demolition. In the town of Chicoutimi, no such by-law having been enacted, the mayor gave orders for the demolition of a building for the purpose of arresting the progress of a general conflagration and, in carrying out his directions, an adjacent building was destroyed which was insured by respondents for $4,700.
The municipality settled with the owner by paying her $5,500, as full indemnity for all damages sustained, and obtained a transfer of her rights under her policy of insurance. In an action on the policy so transferred, Held (Duff J. dissenting), that, as the destruction of the building insured was occasioned by an act justified by statutory authority and full indemnity had been paid, the municipality was entitled to subrogation in the rights of the owner and to maintain the action against the insurance company for reimbursement to the extent of the amount of the insurance upon the property.-Per
Duff J. (dissenting)
.-Although the de- INSURANCE, FIRE-Continued. struction of the building insured was occasioned by an act justified at common law, the rights of the municipal corporation were determined by the principle laid down in Qufbec v. Mahoney (Q.R. 10 K.B. 378), and the claim for reimbursement to the extent of the amount for which the property was insured should not be maintained. Quebec Fire Insurance Co. v. St. Louis Moo. P.C. 286) applied.
Cnicourni INSURANCE, GUARANTEE-Insurance -Fidelity bond-Untrue representations- Materiality-R.S.O. s.-s. 2.1 The tax collector of a town applied to a guarantee company for a bond to secure the corporation against loss by his dishonesty.
The company submitted to the mayor a number of questions which he answered in writing, one being, "What means will you use to ascertain whether his accounts are correct?" His answer was, "Auditors examine rolls and his vouchers from treasurer yearly." The auditors never examined the rolls during the time the security continued.- Held, per Fitzpatrick C.J. and Idington and Anglin JJ., affirming the judgment of the Appellate Division (30 Ont. L.R. 618), Davies J. dissenting, that this was an untrue representation which avoided the security.-Held, per Duff J.-That the judgment of the court below could be supported on the ground that material representations made upon the application for the contract of renewal upon which the action was brought were untrue and that the effect of sub-section (a) is that such misrepresentations avoid the contract ab initio.-Per Davies J.-That the answer meant only that the "Municipalities Act" required a yearly audit, which would be complied with, and that it was not themayor's duty to check such audit and see that it was properly performed.-The bond was renewed without fresh submission of,the' questions to the mayor.-Held, that as the renewal referred to the mayor's answers as incorporated therein, and as the latter had signed an agreement that they should form the basis of the bond or any renewal or continuation of the same the answers and representations made thereby applied to such renewal.-Held, further, that subsection 2 of section of the Ontario "Insurance Act" (R.S.O. [1897] ch. 203) does not require the.policy to state that GUARANTEE-Con.
any particular representation is material to the contract, its effect being only that no misrepresentation shall avoid the policy unless it is material.-Jordan v.
Provincial Provident Institution Can.
S.C.R. followed.
TowN
INSURANCE, LIFE - Non-payment premiums-Misrepresentation to insured- Estoppel.] P., in payment of premiums on a life policy, gave his note for one instalment and an overdue balance another.
Shortly before it matured an official the company, specially authorized to deal with the matter, informed
P. that his policy had lapsed owing to the inclusion in the note the overdue balance which was against the company's rules.
In consequence this representation P. did not pay the note nor tender the amount another instalment falling due before his death.
In an action the policy by the beneficiary no rule of the company was proved avoiding the policy as stated.-Held, affirming the judgment appealed against N.S. Rep.
Fitzpatrick C.J. and Davies J. (dissenting)
, that the company was estopped, by conduct, from claiming that the policy lapsed on non-payment the note and subsequent instalment.-Per Davies J., that the non-payment of the note could not be relied on as avoiding the policy, but the estoppel did not extend to the failure to pay the quarterly premium which afterwards became due.
INTEREST - R.S.C., ss. 31-Abandonment of proceedings-Compensation - Allowance of interest-Construction of statute-Practice-Taxation of costs-Solicitor and client-Reimbursement of expenses
-Interpretation of formal judgment- Reference to opinion of judge.........
JUDGMENT-Contract-Sale of Mining land-Substituted purchaser-Reservation of claim against original purchaser-Forfeiture of second contract-Sale to other parties-Effect on reserved claim.....
2-"Expropriation Act," R.S.C.,
JUDGMENT-Continued.
ss. 31-Abandonment of prointerest-Construction of statute-Practice -Taxation of costs-Solicitor and client- Reimbursement of expenses-Interpretation of formal judgment-Reference to opinion ofjudge..........................
3-Practice - Recalling judgment-Deof pleadings - Jurisdiction-Costs-Settlement of minutes................. JURISDICTION-Maritime law - Collision-Foreign ship-Proceedings in foreign court-Jurisdiction in Canada. ]-Shortly after a collision the owner brought action in a United States court to limit the liability of the tug "Smith" and the extent her liabiltiy was fixed at
Later the two ships (tug and tow) were seized in Canadian waters, taken into a Canadian port and released on receipt of a bond by a guarantee company conditioned to pay any amount awarded against either or both. The action in rem was then proceeded with, resulting in both ships being condemned.-Held, that the proceedings in the United States did not oust the Canadian court jurisdiction.-Held, per Idington J.
The defendants are not entitled to limitation the damages under United States or Canadian statutes, the same not having been pleaded nor any evidence of it produced. - Per Davies and Anglin JJ.-As the collision occurred in the domestic waters the foreign ship held at fault the extent her liability must be determined by the lex loci commissi delicti, and the damages should be limited to the value the "Smith" immediately after the collision. -Held, per Duff J., following the "Dictator" P. and the "Gemma" P. that as the owners appeared and contested the liability the ships they became parties to the action and subject to have personal judgment pronounced against them for the amount damages properly recoverable for the negligence of their servants.
The trial judge having held, on the sole issue fact raised at the trial, that the "Smith," as between her and the "Moyles," was solely to blame, the appellant owners were primd facie liable for the full amount JURISDICTION-Continued.
damages suffered.
Assuming, however, that if the "Chinook" was free from blame, they were entitled to the benefit the United States laws limiting their liability to the value of the offending res, then, as this issue was not raised or tried in the Exchequer Court, they could only succeed if the facts in evidence conclusively demonstrated the innocence the "Chinook" or, in other words, that the "Smith" and "Chinook" were not identified for the purpose assigning liability, the question identification being a question fact depending upon the particular circumstances.
" L.
Registration-Rectification of register-Jurisdiction of Exchequer Court- Construction of statute
"Trade Mark and Design Act,"
42-"Exchequer Court s.
Under the provisions sections and 42 the "Trade Mark and
Design Act," R.S.C., ch. and the twenty-third section the "Exchequer Court Act," R.S.C., ch.
the Exchequer Court Canada has jurisdiction to order the rectification of the register trade marks, at the suit any person aggrieved, notwithstanding visions the "Trade Mark and Design
Duff J. dissented.-The judgment appealed from Ex. C.R. was
JURY-Operation of railway - Equipment
-Coupling apparatus-Duty to provide and maintain-Protection of employee-Inspection-"Inevitable accident" gence-Findings of jury-Evidence - Com- Act," R.S.C.,
Construction of statute-Vis major....
Libel-Business reputation-Action incorporated company - Truth alleged facts-Fair comment-Justification
-Public interest-Qualified privilege - Charge to jury - Misdirection - Mislead- Special damages-New trial ..........
JURY- Continued.
3-Negligence-Defective system - Injury to employee-Evidence-Verdict - Practice-Exception to judge's charge - New points on appeal-New trial ..... LACHES-Lease of land-Option to purchase-Specific performance-Right of Ac- LEASE-Lessor and lessee-Lease of adjoining lots-Separate demises-Assigna whole-Consent of counsel.] Two leases adjoining lots were, by assignment, vested in C.
Each lease provided that if, on its expiration, the lessor refused to renew he should give notice thereof to the lessee and that valuators should be appointed to value the buildings on the land.
Notice was given under each lease and valuators were appointed, who, without objection by the lessor's counsel, valued the buildings on the two lots as a whole, and fixed $35,000 as the value them all.
In an action by the lessee to recover this amount, Held, reversing the judgment the Appellate Division Ont. L.R..48), Davies and Anglin JJ. dissenting, that the valuation must be set aside, that the value the buildings on the lots should have been ascertained separately.-Held, also, applying the principle Cameron v. Cuddy A.C. that the action should not be dismissed, but that the same or other valuators should be appointed to ascertain the value in a proper manner.
2-Lease of land-Special condition- Promise of sale-Option-Pacte prgfirence-Unilateral contract-Real rightsaction.] In a lease lands for the term five years, which was registered, the lessor agreed to sell the property to the lesthe term the lease.
It was also stipulated that in the event of a proposed sale After the expiration about two years of LEASE-Continued.
and conditions the proposed sale and, pri.rence were accessory to the confavour the lessee which was capable of
The registration the deed lease and actual knowledge by the purchaser the in the position of a purchaser in bad faith promise of sale and pacte prdfgrence, the registry laws of the Province Quebec.
Under the laws that province sale; the wrongful act the lessor, in violation of his obligations under the deed
LEASE-Continued.
MAXIM-"Ex turpi causd non oritur actio" ................
at See AcroN 1.
LEGISLATION-Company - Dominion corporation-Provincial registration-Juristic disability-Right of action-Contract -Carrying on business within province- Legislative jurisdiction-R.S. Sask. c. ss. 10-Non-compliance with S.C. Rules-Costs..................... See 2.
2-Constitutional law-Provincial legislation-Succession duties-Taxation-Property within province-Bona notabilia- -Specialty-Construction statute - Severable provisions-R.S.M., s. 5-4 & Edw. VII., Appeal-Jurisdiction................ LESSOR AND LESSEE-Lease of adjoining lots-Separate demises - Assigna whole-Consent of counsel .......... LIBEL-Business reputation-Action incorporated company-Truth of facts alleged-Fair comment-Justification-Public interest-Qualified privilege-Charge to -Practice-Evidence of special damage- New trial.] There being a dispute between the parties as to the ownership certain lands, the plaintiffs, a commercial corporation, obtained special legislation vesting the lands in question in the On becoming aware this legislation, the defendant published letters in several newspapers accusing the company obtaining it by political influence and preventing him vindicating his title in the courts. In an action to recover damages for libel, the trial judge told the jury that the defendant's defence justification would be established if they were satisfied that, although in fact untrue, the defamatory statements had LIBEL-Continued.
been made in honest belief of their truth, and that, if the publication were an honest comment on the facts as stated, that, in itself, would be sufficient to establish the defence of fair comment.
On the findings of the jury, judgment was entered for the defendant, but this judgment was set aside, on the ground of misdirection, by the judgment appealed from and a new trial ordered.-Held, per curiam, that where a libel conveys imputations calculated to injure a trading corporation in respect of its business the corporation can maintain an action for damages.-Per
Duff J.-The publication complained of was capable of being read as charging the company with having used political influence for the purpose of procuring legislation giving it possession of property in derogation of what, to its knowledge, were the defendant's rights, and this was an imputation calculated to injure the commercial corporation in its business.-Held, per Idington, Duff, Anglin and Brodeur JJ., Davies J. dissenting.- That the directions by the trial judge as to the defences of justification and fair comment were erroneous and misleading.-Per Davies J. dissenting.- Taken as a whole, the charge of the trial judge was clear and explicit and placed the material issues fairly before the jury, and, consequently, the judgment entered at the trial on the findings of the jury ought not to be disturbed.-Per Anglin J.
dissenting.-That, as a judge could not properly rule or a jury reasonably find that the defendant's letters were calculated to injure the property of the plaintiffs or their business reputation, as a commercial corporation, they could not recover without proof of special damage.
-Judgment appealed from (Q.R. 22 K.B.
393) affirmed, Davies and Anglin JJ. dis- ...................
LICENCE-Licence to cut timber-Indian lands-R.S.C., ss. 43, 54- Licence for twelve months-Regulations- Renewal of licence...................
LIMITATION OF ACTIONS - Railways-Right of way-Clearance of combustible matter-Burning worn-out ties-Injury from spread of fire-"Operation of the railway"-"Railway Act" (R.S.C.
ss. 306).-Held, per Fitzpatrick
LIMITATION OF ACTIONS-Continued. C.J. and Duff, Anglin and Brodeur JJ., that when worn-out ties are burned by a railway compaiy on its right-of-way in performance of the duty imposed by section 297 of the "Railway Act" to keep the right-of-way free from unnecessary combustible matter any damage or injury resulting therefrom is caused by reason of the "operation of the railway" within the meaning of that phrase in section 306, and the right of action for such damage or injury is prescribed by one year.-Per Duff J.-The injury in such case may be caused by reason of the "operation of the railway" though the company, in burning the ties, was not performing the duty imposed by section 297.-Per Davies and Idington JJ. dissenting.-By sub-section 2 of section 306 the application of the section is limited to cases in which the injury was caused "in pursuance of and by authority of this Act or of the special Act," and as the burning of the ties was not so authorized the prescription could not be relied on.-Held, also, Idington, J. dissenting, that sub-section 4 of section 306 did not prevent the application of the provision in sub-section 1 for limiting the time in which action could be brought.- The decision of the Appellate Division (32 Ont. L.R. 104) maintaining the judgment at the trial (31 Ont. L.R. 419) was ...... LOTTERY-Illicit contract-Sale of land -Subsequent purchaser-Action pdtitoire of Recovery-Ultra vires-Legal maxim-"Ex turpi causd non oritur actio" -Notary-Official of purchasing company - Validity of deed................... MARITIME LAW-Admiralty law - Tug and tow-Contract of navigation-Collision of tug-Liability of tow-Foreign ship- Proceedings in foreign court-Jurisdiction in Canada.] The American tug "A. L. Smith" was ascending the River St. Clair having in tow the barge "Chinook," the two being engaged in the business of their common owner. The "Chinook" having no propelling power nor steering apparatus the navigation was controlled by the officers and crew of the tug, the tow being attached by a line fifteen feet long. They kept on the American side and the "Smith" sheered and collided with a barge being towed down, causing it to MARITIME LAW-Continued.
sink.-Held, affirming the judgment of the Exchequer Court (15 Ex. C.R. 111),
Davies and Anglin JJ. (dissenting)
, that the tug and tow must be regarded as one ship and each was liable for the consequences of the collision. The "American"
and the "Syria" (L.R. P.C. discussed and distinguished.-Per Davies and Anglin JJ. dissenting, that as the
"Chinook" took no part in the navigation, and there being no master and servant relationship between her and the
"Smith," she should not be held liable.- Shortly after the collision the-owner brought action in a United States court to limit the liability of the "Smith" and the extent of her liability was fixed at
$1,500.
Later the two ships were seized in Canadian waters, taken into a Canadian port and released on receipt of a bond by a guarantee company conditioned to pay any amount awarded against either or both. The action in rem was then proceeded with, resulting in both ships being condemned.-Held, that the proceedings in the United States did not oust the Canadian Court of jurisdiction.
"A. L. SIT"
MORTGAGE-Payment instalments- Acceleration clause-Payment of part postponed-Right of foreclosure.] A mortgage provided for payment in three annual sums of $2,500 each. There was a special provision that out of the last instalment the mortgagor could retain $1,000 until he received a conveyance of the interest of an infant who, with the mortgagee, executed an agreement to convey when he became of age.
There was also the acceleration clause making the whole amount due on default in paying any part.
In an action to foreclose, default having been made in payment of the first annual instalment, Held, affirming the decision of the Appellate Division (31 Ont. L.R.
471), which maintained the judgment at the trial (30 Ont. L.R. 502), that the postponement of the time for payment of the $1,000, part of the last instalment, did not disentitle the mortgagee to his remedy of foreclosing; but Held, varying the judgment below, that the acceleration clause in the mortgage did not apply to the $1,000, payment of which was postponed;
that the personal recovery against the mortgagor should not include this sum; and that the judgment below
MORTGAGE-Continued.
should be amended by providing that the proceedings should be stayed by paythe balance. MUNICIPAL CORPORATION-Fire insurance-General conflagration-Acts municipal officials-Demolition of buildings -Statutory authority-R.S.Q., art. Indemnity
Subrogation Tort -Transfer of rights to municipality- Liability insurer.]
Article R.S.Q., empowers town corporations, subject to indemnity to the owners, to cause the demolition buildings in order to arrest the progress fires; in the absence of a by-law to such effect power sary demolition.
In the Town of Chicoutimi, no such by-law having been enacted, the mayor gave orders for the demolition a building for the purpose arresting the progress a general conflagration and, in carrying out his directions, an adjacent building was destroyed which was insured by respondents for $4,700. The municipality settled with the owner by paying her $5,500, as full indemnity for all damages sustained, and obtained a transfer of her rights under her policy insurance. action on the policy so transferred:- Held (Duff J. dissenting), that, as the destruction of the building insured was occasioned by an act justified by statutory authority and full indemnity had I been paid, the municipality was entitled to subrogation in the rights the owner and to maintain the action against the insurance company for reimbursement to the extent the amount the insurance upon the property.-Per Duff J. dissenting.
Although the destruction the building insured was occasioned by an act justified at common law, the rights of the municipal corporation were determined by the principle laid down in Cit Qudbec v. Mahoney (Q.R. K.B. and the claim for reimbursement to the extent the amount for which the property was insured should not be maintained.
Quebec Fire Insurance Co. v. St. Louis Moo. P.C. applied., NAVIGATION-Maritime law-Tug and tow-Contract of navigation-Collision tug-Liability of tow.] The American tug Smith" the NAVIGATION-Continued.
St. Clair having in tow the barge "Chinook," the two being engaged in the business their common owner.
"Chinook" having no propelling power nor steering apparatus the navigation was controlled by the officers and crew the tug, the tow being attached by a line fifteen feet long. They kept on the
American side and the "Smith" sheered and collided with a barge being towed to sink.-Held, the judgment the Exchequer Court
Ex. C.R. Davies and Anglin JJ.
dissenting, that the tug and tow must be regarded as one ship and each was liable for the consequences the collision.
The "American" and the "Syria"
(L.R. P.C. discussed and distinguished.-Per Davies and Anglin JJ. dissenting, that as the "Chinook" took no part in the navigation, and there being no master and servant relationship between her and the "Smith," she should not be held liable.
NEGLIGENCE- Railways
Operation- Equipment-Coupling apparatus-Duty provide and maintain-Protection of employees-Inspection-"Inevitable accident"
-Findings of jury-Evidence-Common employment-Conflict of laws-"Railway
Act," R.S.C., 264-Construction of statute - Vis major.] car attached to a fast-freight train arrived at a station on the railway, in Saskatchewan, during a cold night in the winter;
it was equipped with an approved
(c) of the "Railway Act," R.S.C.
and, in consequence, the plaintiff, an employee, sustained injuries. Subsequently the coupler was taken apart and it was then discovered that the locking-block was jammed with ice (not visible from the exterior) which had formed inside the chamber and prevented its release by the uncoupling device used to disconnect the car before the train was moved.
In an action for damages, instituted in the Province Manitoba, the jury found that the company had been negligent
"through lack proper inspection,'"and judgment was entered on their verdict. On appeal from the judgment the Court of Appeal for Manitoba setting aside the verdict and entering judgment for the defendants, Held, per Fitzpatrick C.J. and Davies and Anglin JJ.-The obligation resting upon the company, both under the statute and at common law, was discharged by the customary inspection of the car which had been made according to what was shewn to be good railway practice, and there was no further duty imposed in regard to unusual conditions not perceivable by the ordinary methods inspection.-Per Davies and Anglin JJ.-Viewed as a dict of the jury upon the technical quesbe set aside as being against evidence. v. Hill L.T. Jackson v. Hyde U.C.C.P.
referred to.-Per Anglin J. (Idington J. contra).-The defence common employment, although taken away by legislation in the Province sustained, was available as a defence the courts Manitoba, where the action The "Halley" (L.R. P.C. referred to.-Judgment appealed from Man. R. affirmed, Idington and Duff JJ. dissenting.-Per Idington and Duff JJ. dissenting.-Section the "Railway Act" imposes upon railway companies the absolute and continuing duty not only to provide, but also to maintain in efficient use the apparatus thereby required; where it is shewn that the apparatus failed to operate, when used, the onus is upon the railway company, in an action under section moved. Johnson v. Southern Pacific Co. Defective system-Injury emon appeal-New trial.] During bridge construction a travelling crane was operated on elevated tracks under a system NEGLIGENCE-Continned.
which did not provide .signals on every occasion when it was set in motion and was not provided with guards for the protection workmen employed upon the elevated stagings.
signal was given, on starting the crane, at some distance from the workmen; shortly afterwards it came to momentary stop and moved on again towards the workmen without any further signal and plaintiff was injured.
In his action for damages, the plaintiff charged want proper system and guards.
The Court Appeal set aside a judgment in favour plaintiff, upon a general verdict by the jury, and ordered a new trial for the purpose assessing damages under the British Columbia "Employers'
Liability Act,"
the ground that it had been admitted that there was a system in existence which, if properly carried out, would have been sufficient for the protection the workmen.-Held, that on a proper appreciation the evidence, having regard to the course the trial, the directions the trial judge had presented the issues fully to the jury, and, there being evidence to support it, their verdict ought not to have been disturbed.
Davies and
Anglin JJ. dissented.-Per Duff and Brodeur JJ.-Where exception to the directions of the judge has not been taken at the trial or in the first court appeal is, in the absence special circumstances, too late to urge such objections upon a subsequent appeal to a higher court.
White v. Victoria Lumber and Manufacturing Co. ( A.C. followed.
3-Power company-Accident to employee-Injury from supposed dead wire- Duty of employer-Proper system.]
A power company is not liable for injury to an employee from contact with an electric wire represented to be harmless, but which had, in some way become charged, when it is shewn that every reasonable precaution had been taken for the safety employees and there is nothing which proves or from which it can be inferred that the accident was due to the negligence some person for which the company was responsible.-Per Idington J.
dissenting.
The only reasonable inference from the evidence is that the caused by negligence;
therefore, as decided by McArthur v.
Dominion Cartridge Co.
and Toronto Railway Co. v. Fleming
Can. S.C.R. it is not necessary to determine precisely how such negligence produced the injury complained of.
There was also some evidence a want a proper system and failure to employ competent persons to superintend the work.-Judgment the Appellate Division Ont. L.R. reversed, Fitzpatrick C.J. and Idington J. dissenting.
Obstruction of highway-Street railway-Trolley poles between tracks-Statutory authority-Protection light.] The Act incorporating the Hamilton Street Railway Co. authorized the City Council to enter into an agreement with the company for the construction and location the railway.
A by-law passed by the Council directed that the poles for holding wires should, on part of a certain street, be placed between the tracks, which was done under supervision the City Engineer.-Held, reversing judgment appealed against Ont. L.R. that the location the poles was authorized by the legislature and did not constitute an obstruction the highway amounting to a nuisance; the company was, therefore, not liable for injury resulting from an automobile while driven at night coming in contact with the pole.-Held, also, that as on the City Council was cast the duty regulating the operation of the railway in respect to traffic and travelling on the street and it had made no regulation as to lighting the pole the company was under no oblido so.
5-Government railway regulations -- Operation of trains-Negligent signaling- Cause of injury-R.S.C., ss. 54.]
By regulation the Intercolonial Railway, no person is allowed to get aboard cars while trains are motion.
Without ascertaining that all his train-crew were aboard, the conductor signalled the engineman to start his train from a station where it had stopped to discharge freight.
One the crew, who had been assisting in unloading, then attempted to board the moving train and, in doing so, he was injured.- Held, that the injury sustained by the employee was the direct and immediate consequence his infraction of the regulation which he was, by law, obliged to obey and not the result the fault the conductor; that by disobedience to the regulation, the employee had voluntarily exposed himself to danger from the moving train; that the negligence the conductor in giving the signal to start the train was not an act for which the
Government Canada could be held responsible and that its relation to the accident was too remote to be regarded as the cause the injury.-Judgment appealed from Ex. C.R. affirmed.
6--Railways-Shipping contract-Carrying person in charge of live stock-Free pass
-Release from liability-Approved form- Action dependents-Conflict of laws- "Railway Act," R.S.C.,
340.............................
NEW TRIAL-Libel-Business reputation incorporated company-Truth of alleged facts-Fair comment-Justification-Public interest-Qualified privilege- Charge to jury-Misdirection
Misleading
Statements - Practice-Evidence-Special damages.........................
2-Negligence-Defective system-Injury employee-Evidence
Practice-Exception to judge's charge - New
NOTARY-Illicit contract-Lottery-Sale of land-Subsequent purchaser-Action patitoire-Right of recovery-Ultra vires- Legal maxim-"Ex turpi causd non oritur actio"-Officiating notary-Official of purchasing company-Validity of deed.] Per
Duff J.-As the notary before whom the deed impeached was executed was, at the time its execution, an official of the in question, the deed without validity as an authentic conveyance.
NUISANCE-Negligence - Obstruction highway-Street railway-Trolley poles tween tracks-Statutory authority-Protection light......................
PERJURY-Criminal law-Form of oath -Practice-Voire dire.] After examination on voire dire, in a judicial proceeding, a person called as a witness (with the assistance an interpreter) went through a ceremony accepted as the taking of an class, knowing and intending that his testimony should be received and acted been duly sworn.
Rex v. Lai Ping (11 B.C. Rep. 102); The Queen's Case (2 Brod. & Bing. Omychund v. Barker (1 Atk. 21); Attorney-General v. Bradappealed from D.L.R. West. L.R. affirmed. KING................... PLEADING-Practice-Recallingjudgment -Defect-Correction of omission-Amendment of pleadings - Costs- Settlement of minutes.] Where by an accidental slip or oversight the formal judgment on an appeal failed to express the clear intention the court that certain amendments in the pleadings should be allowed fdr the purpose effective relief to the successful party the Supreme Court Canada, on application subsequent to the transmission the formal judgment to the court below, ordered that its judgment should be varied inserting therein a direction that the judgment appealed from and the plaintiff's declaration should be varied so as to correct the inadequate description certain lands therein mentioned. Rattray v. Young (Cout. Dig. and Penrose v. Knight (Cout. Dig. referred to.
Idington and Duff JJ. dissented from this order. - Per Duff J. The judgment that the court -in fact pronounced, and intended to pronounce, was simply that the appeal should be dismissed; 'such judgment does not involve any consequences whatever in respect the amendment the judgment or pleadings in the court original jurisdiction. The power the court to amend a judgment after it has become a record the court is specially limited to making the record conform to the judgment pronounced or intended to be pronounced; it does not authorize the recalling of the judgment in order to deal with a collateral matter not actually or construe- PLEADING-Continued.
tively involved in the court's decision.
The proper course was to apply to the court original jurisdiction for an amendment the record that court.
-The application was allowed only upon payment costs thereof by the party moving, inasmuch as it had been his duty to have seen that the provision was inserted at the time of the settlement the minutes judgment.
Materials for construction-Notice to treat
-Statute-"Railway Act," R.S.C., c. ss. 196-Compensation-Date of ascertainment of value- Order for possession-Deposit of plans- Approval of Board of Railway Commissioners............................
PRACTICE AND PROCEDURE peal-Jurisdiction-Judgment of Court
Review-Modijication of trial judgment- AJ]frmance"Supreme Court Act," R.S.C.
a.
An action to restrain the flooding the plaintiff's land from the defendants' railway ditch, was maintained by the Superior Court and an order made directing the railway company to construct the necessary works to cause the trouble to cease within a time mentioned, failing which the plaintiff was authorized to do the works at the company's expense.
On an appeal from this judgment, the Court Review, its own motion, added more specific directions as to the works to be done and, instead of authorizing the plaintiff to construct the works, in case default, reserved his recourse for future damages and dismissed the appeal.- Held, that the judgment the Court
Review had confirmed that the court first instance and, therefore, an appeal therefrom would lie to the Supreme Court
Canada under the provisions section the "Supreme Court Act," R.S.C.
ch.
Hull Electric Co. v. Clement
Can. S.C.R. followed.
RWAY.
CIcNrAC..........................
2--Libel-Business reputation-Action incorporated company-Truth of facts alleged-Fair comment-Justification-Pub- -Evidence of special damage-New trial.]
There being a dispute between the parties as to the ownership certain lands, the plaintiffs, a commercial corporation, obtained special legislation vesting the lands in question in the On becoming saware this legislation, the defendant published letters in several newspapers accusing the company obtaining it by political influence and preventing him vindicating his title in the courts.
In an action to recover damages for libel, the trial judge told the jury that the defendant's defence justification would be established they were satisfied that, although in fact untrue, the defamatory statements had been made in honest belief of their truth, and that, if the publications were an honest comment on the facts as stated, that, in itself, would be sufficient to establish the defence fair comment. On the findings the jury, judgment was entered for the defendant, but this judgment was set aside, on the groumd of misdirection, by the judgment appealed from and a new trial ordered.-Held, per curiam, that where a libel conveys imputations calculated to injure a trading corporation in respect its business the corporation can maintain an action for damages.-Per
Duff J.-The publication complained was capable being read as charging the company with having used political influence for the purpose procuring legislation giving it possession property in derogation what, to its knowledge, were the defendant's rights, and this was an imputation calculated to injure the commercial corporation in its business.-Held, per Idington, Duff, glin and Brodeur JJ., Davies J. dissenting.-That the directions by the trial judge as to the defences justification and fair comment were erroneous and misleading.-Per Davies J. dissenting.- Taken as a whole, the charge the trial judge was clear and explicit and placed the material issues fairly before the jury, and, consequently, the judgment entered at the trial on the findings the jury ought not to be disturbed.-Pcr Anglin J. dissenting.-That, as a judge could not properly rule or a jury reasonably find that the defendant's letters were calculated to injure the property the plaintiffs or their business reputation, as a commercial corporation, they could not recover without proof special damage. affirmed, Davies and Anglin JJ. dissenting.
....................
3-Negligence-Defective system-Injury to employee-Evidence-Verdict-Practice on appeal-New trial.] During bridge construction a travelling crane was operated on elevated tracks under a system which did not provide signals on every occasion when it was set in motion and was not provided with guards for the protection workmen employed upon the elevated stagings.
signal was given, on starting the crane, at some distance from the workmen; shortly afterwards it came to a momentary stop and moved on again towards the workmen without any further signal and plaintiff was injured. In his action for damages, the plaintiff charged want of proper system and guards.
The Court Appeal set aside a judgment in favour of plaintiff, upon a general verdict by the jury, and ordered a new trial for the purpose assessing damages under the British Columbia "Employers' Liability Act,"
the ground that it had been admitted that there was a system in existence which, if properly carried out,. would have been sufficient for the protection the workmen.-Held, that on a proper appreciation the evidence, having regard to the course the trial, the directions the trial judge had presented the issues fully to the jury, and, there being evidence to support it, their verdict ought not to have been disturbed. Davies and
Anglin JJ. dissented.-Per Duff and Brodeur JJ.-Where exception to the directions the judge has not been taken at the trial or in the first court of appeal, in the absence special circumstances, too late to urge such objections upon a subsequent appeal to a higher court.
White v. Victoria Lumber and Manufacturing Co. ( A.C. followed.
Criminal - Perjury - Form oath-Voire dire.]-After examination on voire dire, in a judicial proceeding, a person called as a witness (with the assistance an interpreter) went through a ceremony accepted as the taking of an class, knowing and intending that his testimony should be received and acted been duly sworn.-Rex v. Lai Ping (11 B.C. Rep. 102);
Queen's Case (2 Brod. & Bing. 284); Omychund v. Barker. (1 Atk. 21); Attorney-General Brad- Judgment appealed from (30 West. L.R. .......... 5-Rectlling judgment - Defect - Correction of omission-Amendment of pleadings-Jurisdiction - Costs - Settlement minutes.] Where by an accidental slip or oversight the formal judgment on an appeal failed to express the clear intention the court that certain amendments in the pleadings should be allowed for the purpose effective relief to the successful party the Supreme Court Canada, on application subsequent to the transmission the formal judgment to the court below, ordered that its judgment should be varied by inserting therein a direction that the judgment appealed from and the plaintiff's declaration 9hould be varied so as to correct the inadequate description certain lands therein mentioned.
Rattray v. Young (Cout. Dig. and Penrose v. Knight (Cout. Dig. referred to. Idington and Duff JJ. dissented from this order.- Per Duff J. The judgment that the court in fact pronounced, and intended to pronounce, was simply that the appeal should be dismissed; such judgment does not involve any consequences whatever in respect the amendment the judgment or pleadings in the court original The power the court to amend a judgment after it has become a record the court is specially limited to making the record conform to the judgment pronounced or intended to be pronounced; it does not authorize the recalling the judgment in order to deal with a collateral matter not actually constructively involved in the court's decision. The proper course was apply to the court of original jurisdiction for an amendment the record that court.-The application was allowed only upon payment costs thereof by the party moving, inasmuch as it had been his duty to have seen that the provision was inserted at the time the settlement of the minutes judgment. 6-Maritime law-Tug and tow-Contract of navigation-Collision of tug-Liability of tow-Foreign ship-Proceedings in foreign court-Jurisdiction in Canada..
See LAw.
7-Findings of jury-Defence of common employment-Legislation in province cause of action-Conflict of laws ......
8-Company-Dominion corporation - -Right of action-Contract -Carrying diction-R.S. Sask. ss. 10- .............................
9-Bill of sale-Transfer between near relatives-Preferential assignment
Suspicious circumstances - Corroborative evidence-Bona fides-Practice..........
10-'
"Expropriation Act," R.S.C., ss. 31-Abandonment of proceedings-Compensation-Allowance of interest-Construction of statute-Taxation of costs-Solicitor and client-Reimbursement of cxpenses-Interpretation of formal judgment-Reference to opinion of judge
......................
PRINCIPAL AGENT-Commission sales- "Accepted orders"-Contract for sale--Construction.] paper manufacturing company in Quebec agreed to give a commission of five per cent.
all "accepted orders" obtained by him
Ontario to be payable as soon as an order was shipped. Through W.'s agency a contract was entered into whereby a company in Toronto agreed to purchase from the Quebec company during one year paper a specified kind to the extent not less than
$35,000 to be furnished from time to time on receipt specifications and directions as to destination.
When paper to the value over $5,000 had been shipped under this contract the Toronto company refused to furnish further specifications on the ground that said paper was not satisfactory and the contract was not further performed.-Held, per Fitzpat- PRINCIPAL AGENT-Continued. rick C.J. and Idington J. (Duff J. contra), that the contract with the Toronto company constituted an "accepted order" within the terms the agreement with who, as it was through the fault his principals that the contract was not performed, was entitled to the balance his commission on the contract price $35,000.-Per Davies and Anglin JJ.-If under the contract the only "accepted orders" were those filled from time to time on receipt of specifications and directions from the purchasers the discontinuance their sending in the same was due to the failure the vendors to furnish satisfactory paper and V. was entitled to damages for being prevented such failure from earning his commission. As the evidence shewed that he had done all that could be incumbent upon him to have the contract performed the measure his damages would be his commission the contract price.-Per Duff J. dissenting.-The only "accepted orders" under the contract were those to be filled from time to time on receipt specifications.
As his case under the pleadings was confined to recovery the commission on the basis of -the contract with the Ontario company being an "accepted order" and as no claim was put forward investigated) at the trial the basis the appellant having wrongfully been prevented earning his commission by procuring "accepted orders," or advanced the appellant at any stage the proceedings, the judgment could not be sustained on that basis unless it was clear that all the evidence bearing upon such a claim was to be found in the record.
2-Broker- "Real Estate Agent"-Sale of land-- "Listing" on broker's books- Authority to make contract ........... Officer of company-Sale of business premises-Authority sign deed..... PRINCIPAL SURETY
Materials for construction-Notice to treat-Statute -"Railway Act," R.S.C., ss. 196-Compensation -Date for ascertainment of value-Order for possession-Deposit of plans-Approval of Board of Railway Commissioners.]
With regard to obtaining materials for tle construction railways, the effect sub-section section of the
"Railway Act," R.S.C. ch.
merely requires the general provisions the Act relating to the using and taking lands to be observed in so far as they are appropriate to the expropriation the lands and settling the compensation to be paid therefor; section the
Act has no application to such a case.- Notices were given in compliance with sections and the "Railway
Act," and, before any change had taken place in respect to the value the lands to be taken, the railway company obtained an order a judge permitting to do so and took possession the lands in question.-Held, that the title the company to the lands, when consummated, must be considered as relating back to the date when possession was taken and that the compensation payable therefor should be ascertained with reference to that time.-Judgment appealed from Alta. L.R. affirmed.
2- Construction of statute-"Railway tolls-R.S.C. s.
section the "Railway Act" the
Railway Board may, on application the owner an industry within six miles a railway order the company to construct and operate a spur line from its railway to such industry, the applicant to provide for the cost construction and be repaid by a rebate to be fixed the Board "out or in proportion to the tolls chai-ged by the company in respect the carriage traffic for the applicant over the said spur or branch line."- Held, Anglin J. dissenting, that such rebate was not restricted to the tolls for carriage goods over the said spur, but was applicable to the tolls for carriage traffic over the company's main line to and from the said industry.
Operation of railways-Equipment- Coupling apparatus-Duty to provide ond maintain-Protection of employees-Inspection gence-Findings of jury-Evidence- Comway Act," R.S.C., Construction of statute-Vis major.] A car attached to a fast-freight train arrived at a station on the railway, in Saskatchewan, during a cold night in the winter; it was equipped with an approved and, in consequence, the plaintiff, an employee, sustained injuries. Subsequently the coupler was taken apart and it was then discovered that the lockingblock was jammed with ice (not visible from the exterior) which had formed inside the chamber and prevented its release by the uncoupling device used to disconnect the car before the train was In an action for damages, instituted in the Province Manitoba, the jury found that the company had been negligent "through lack proper inspection," and judgment was entered on their verdict. On appeal from the judgment the Court Appeal for Manitoba setting aside the verdict and entering judgment for the defendants:-Ield, per Fitzpatrick C.J. and Davies and Anglin JJ.-The obligation resting upon the company, both under the statute and at common law, was discharged by the customary inspection the car which had been made according to what was shewn to be good railway practice, and there was no further duty imposed in regard to . unusual conditions not perceivable by the ordinary methods inspection.- Per Davies and Anglin JJ.-Viewed as a dict the jury upon the technical quesbe set aside al being against evidence. v. Hill L.T. 29); Jackson v. Hyde U.C.C.P. referred to.-Per Anglin J. (Idington J. contra).-The defence common employment, although taken away by legislation in the Province sustained, was available as a defence in the courts Manitoba, where the action
The "Halley"
(L.R. 2
P.C.
referred to.-Judgment appealed from Man. R. affirmed,
Idington and Duff JJ. (dissenting)
.-Per
Idington and Duff JJ. (dissenting)
.-Section the "Railway Act" imposes upon railway companies the absolute and continuing duty not only to provide, but also to maintain in efficient use the apparritus thereby required; where it is shewn that the apparatus failed to operate, when used, the onus is upon the railway company, in an action under section
Johnson v. Southern Pac~fic Co.
F. RWAY. Co.
Shipping contract-Carrying person in charge of live stock-Free pass-Release from liability-Approvedform-Negligence
-Action dependents-Conflict of laws- "Railway Act," R.S.C.,
The shipping bill for live stock, to be carried from Manitoba to its destination the Province Quebec, was in a form approved by the Board Railway Commissioners and provided that, if the person in charge the stock should be carried at a rate less than full passenger fare on the train by which the stock was transported, the company should be free from liability for death or injury whether caused by the negligence the company or its servants.
C. travelled by the train in charge the stock upon a "Live- Stock Transportation Pass" and signed conditions indorsed in English thereon which he assumed all risks injury and released the company from liability damages to person or property while travelling on the pass, whether caused negligence or otherwise.
While the train was passing through the Province
Ontario, an accident happened through the negligence of the company's employees and C. was killed.
In an action by his dependents, instituted in the Province Quebec, it was shewn that C.
could neither read nor write, except to sign his name, and that he only understood enough English to comprehend orders in respect his occupation as a stock-man; there was no evidence that the nature the conditions was explained to him.-Held (Fitzpatrick C.J. dissenting), that the railway company was liable for damages in the action by the dependents.-Per Davies, Idington, Duff and Brodeur JJ. (Fitzpatrick C.J. and Anglin J. contra), that, as C. could not have known the nature the conditions or that they released the company from liability, and the company had not done what was reasonably sufficient to give him notice the conditions on which he was being carried, the company was liable in damages either under the law Ontario or that Quebec.-Per Anglin J.-Although no action would lie in Ontario unless the deceased would have had a right action, had he survived, and such an action would have been barred there by the contract signed by him. nevertheless, in Quebec, where there no such rule law, the action would lie, though the wrongful act had been committed in Ontario, as it was a class actionable in Ontario.
Machado v. Fontes ( Q.B. applied.-Section ch. provides that "no contract, condition notice by the company impairing, restricting limiting its liability in respect the carriage shall relieve the company from such liability unless have been first authorized or approved by order or regulation the Board. The Board may, in any case or by regulation, determine the extent to which the liability the company may be so impaired, restricted or limited." Board Railway Commissioners made an interim order permitting the use the company, until otherwise determined, the shipping form used, but did Held, per Fitzpatrick C.J. and Davies and Anglin JJ. (Idington, Duff and Brodeur JJ. contra), that the contract signed by deceased was one a class contracts authorized by the Board.-Per Duff J.-The contract signed by deceased could not have the effect limiting the liability the company in respect death because it was not in a form authorized or approved by the Board of Railway Commissioners and there had been no order or regulation made by the Board expressly determining the extent to which the company's liability should impaired, restricted or limited as provided by sub-section section 6I
[S.C.R. VOL. LI. the "Railway Act."-Judgment appealed from, affirming the judgment the Superior Court (Q.R. K.B. 46 S.C.
Right of way-Clearance of combustible matter-Burning worn-out ties-Injury from spread of fire-Limitation of action-"Operation of the railway"-"Railway Act" (R.S.C. 37, ss.
306).I
Held, per Fitzpatrick C.J. and
Duff, Anglin and Brodeur JJ., that when worn-out ties are burned by a railway company on its right-of-way in performance the duty imposed by section the "Railway Act" to keep the right-of-way free from unnecessary combustible matter any damage or injury resulting therefrom is caused by reason the "operation of the railway" within the meaning of that phrase in section and the right action for such damage injury is prescribed by one year.-Per
Duff J.-The injury in such case may be caused by reason of the "operation the railway" though the company, in burning the ties, was not performing the duty imposed by section 297.-Per Davies and
Idington JJ. (dissenting)
.
By sub-section section 306 the application the section is limited to cases in which the injury was caused "in pursuance and by authority this Act or the special
Act" and as the burning the ties was not so authorized the prescription could not be relied on.-Held, also, Idington J.
dissenting, that sub-section of section did not prevent the application the provision in sub-section 1 for limiting the time in which action could be brought.- The decision the Appellate Division
Ont. L.R. maintaining the judginent at the trial Ont. L.R. was
PACIFIc
6-Negligence-Obstruct ion of highway- Street railway-Trolley poles between tracks-Statutory authority-Protection light.] The Act incorporating the Hamilton Street Railway Co. authorized the
City Council to enter into an agreement with the company for the construction and location the railway.
by-law passed by the Council directed that the poles for holding wires should, on part of a certain street, be placed between the tracks, which was done under supervision the City Engineer.-Held, reversing the judgment appealed against Ont. L.R. that the location the poles was authorized by the legislature and did not constitute an obstruction of the highway amounting to a nuisance; the liable injury resulting from an automobile while driven at night coming in contact with the pole.-Held, also, that as on the City Council was cast the duty regulating the operation the railway in respect to traffic and travelling on the street and had made no regulation as to lighting the pole the company was under no obligation to do so.
7-Government railway regulations-Operation of trains-Negligent signaling- Cause of injury-R.S.C., ss. By a regulation the Intercolonial Railway, no person is allowed to get aboard cars while trains are in mo- Without ascertaining that all his train-crew were aboard, the conductor signalled the engineman to start his train from a station, where it had stopped to discharge freight.
One the crew, who had been assisting in unloading, then attempted to board the moving train and, in doing so, he was injured.-Held, that the injury sustained by the employee was the direct and immediate consequence his infraction the regulation which he was, by law, obliged to obey and not the result the fault the conductor; that by disobedience to the regulation, the employee had voluntarily posed himself to danger from the moving train; that the negligence the conductor in giving the signal to start the train was not an act for which the Government Canada could be held responsible and that its relation to the accident was too remote to be regarded as the cause the injury.-Judgment appealed from Ex. C.R. affirmed.
8-Contract-Purchase of railway bonds -Consideration-Extension line- Breach of contract-Damages-Personal liability of president of company-Appeal- REGISTRY LAWS-Lease of land-Special condition-Promise of sale-Option- Pacte de prefirence-Unilateral contract- Real rights - Arts C.C.
of action.] In a lease lands for the term five years, which was registered, the lessor agreed to sell the property to the lessee for certain price at any time during the term lease.
It also stipulated that in the event proposed sale
After the expiration about two years and conditions the proposed sale and, tract.-Per curiam.
The notice as given, prffirence were accessory to the confavour the lessee which was capable
The registration the deed lease and actual knowledge by the purchaser of the in the position a purchaser in bad faith promise sale and pacte de prdftrence, might he protected by registration under
REGISTRY LAWS-Continued. the registry laws the Province Quebec. Under the laws that province (there being no evidence bad faith on the part of the purchaser), the purchase ............. RELEASE-Railways-Shipping contract -Carrying person in charge of live stock- Free pass-Release from liability-Approved form-Negligence-Action pendents-Conflict laws-"Railway Act," R.S.C., c. 340..... REVIEW, COURT OF-Affirmance appeal-Modification of trial judgment. SALE-Broker- "Real estate agent"- Sale of land-"Listing" on broker's books- Principal and agent-Authority make contract.] Where the principal has merely instructed a broker to place lands his list properties for sale, such "listing" does not itself constitute an authorization to the broker to enter into a contract for the sale the lands on behalf of his principal.-Jidgment appealed from West. W.R. affirmed. WILKINsox ................
Company-Powers-Sale of business premises-Scal-Agreenent signed cer.] An industrial company, unless forbidden by its charter, has power to sell its business premises order to secure others more suitable, and a contract for such sale may be valid though not under the company's seal.-Where the contract is executed by an officer the company to whom the necessary authority might be given the other party thereto is not called upon to ascertain if proper steps had been taken to clothe him with such SALE-Continued.
authority; it is sufficient that he is the apparent agent of the company to transact business of the kind and that the power which he purports to exercise is such as, under the constitution of the company, he might possess.-Per Idington J. dissenting.
A person dealing with a minor officer of a company is supposed to know what powers he has by by-law, passed in the manner provided by its charter, to enter into any unusual transaction. In this case it was not proved that the officer signing the contract was empowered to do so, and as the company was not authorized to deal in real estate the transaction was not one within the apparent scope of his authority. The contract was, therefore, not binding on the company.-Judgment of the Appellate Division (31 Ont. L.R. 531) affirmed.
3-Contract-Sale of mining land-Substituted purchaser-Reservation of claim against original purchaser-Forfeiture second contract-Sale of land to other parties-Effect on reserved claim.] In June.
1903, V. & Co., by agreement in writing, contracted to sell, and C. to buy, mining property for $125,000, to be paid $5,000 down and the balance in annual instalments of $24,000.
The 85,000 was paid and in March, 1905, when an instalment was overdue and the second accruing a new agreement was executed, to which C.
was a party, for sale of the property to a mining company for the same price and on the same terms. This agreement provided that nothing in it should affect the right of the vendor to claim from C.
the amount payable under the original contract up to March, 1905, otherwise the latter was to be merged in the new contract. The mining company made default in their payments and, as provided in their contract, the vendors gave notice that the contract was at an end and, later, sold the property for $75,000.
They then took action against C. for the amount unpaid on the original agreement and recovered judgment. After the final sale of the mine C. applied for and obtained from a judge an order declaring that V. &. Co. were not entitled to enforce their judgment against him except for the costs.
On appeal from the affirmance of this order by the Appellate Division.-Held, affirming the decision of the
Appellate Division (32 Ont. L.R. 200)
SALE-Continued.
that by extinguishing the interest of the mining company in the land and then selling it V. &. Co. had put it out of their power to place C. in the position he was entitled to occupy on making payment and had thus disabled themselves from enforcing their judgment.
CLERGUE........................... 4- Contract-Construction-Sale offoxes -Mixed breeds.] By contract in writing G. agreed to sell to C., who agreed to buy, two black foxes "to be the offspring of certain foxes purchased by the vendor from Charles Dalton and W. R. Oulton in the year 1911."-Held (Davies and Duff JJ. dissenting), that the proper construction of the contract was that the two foxes to be sold must have both Dalton and Oulton parentage and G. could not be compelled to deliver a pair bred from the Dalton strain only.
ILLIES............................ 5-Lease of land-Special condition- Promise of sale-Option-Pacte prgfirence-Unilateral contract-Real rights- Arts.
C.C.-Specific per- In a lease of lands for the term of five years, which was registered, the lessor agreed to sell the property to the lesthe term of the lease. It was also stipulated that in the event a proposed sale After the expiration of about two years of and conditions of the proposed sale and, were refused. The lessee took no action deed of sale of the property to P. by con- P. for specific performance of the agreeages against the lessor for breach of con- SALE-Continned.
tions of the proposed sale to P., was incontra). The prQmise sale and pacte de pr4fdrcnce were accessory to the confavour the lessee which was capable
The registration the deed of lease and actual knowledge by the purchaser the in the position a purchaser in bad faith ereed against him as well as against the promise sale and pacte prdftrence, the registry laws of the Province of Quebec.
Under the laws that province
Per Fitzpatrick C.J. and Anglin J.
6- Sale of land-Deferred payment- Omission of date-Completion of contract- Acceptance purchaser-Kew term-Instruments of title-Delivery-Arts.
A contract for the sale land, in the Province Quebec, by which the date the deferred payment an instalment the price is not fixed is, nevertheless, according to the law that province, a completed contract which specific performance may be enforced.
(Duff and
Brodeur JJ. contra.)-In his letter accept- SALE-Contin ued.
ing the offer sale, the purchaser requested the vendor to send to his notary the documents title and the registrar's certified abstract the deeds affecting the property.-Held, per Fitzpatrick C.J. and Anglin J. that this request did not intend the stipulation of a new term to the contract.-Per Brodeur J.
Although the vendor is obliged to furnish the documents title, including the registrar's certified abstract, yet, in the present case, as it appeared that the vendor made it a condition that the titles and certificate were not to be delivered into the possession the purchaser the request in the letter acceptance was a stipulation a new term which left the contract incomplete.
La Banque Ville Marie Kent (Q.R. S.C. and Sauvd v. Picard Rev. de. Jur. referred to. appealed from (Q.R. K.B. 7-Illicit contract-Lottery-Sale of land -Subsequent purchaser-Action pititoire of recovery-Ultra vires-Legal maxim-"Ex turpi causd non oritur actio" -Notary-Official of purchasing company - Validity of deed................... 8-Constitutional law-Provincial legislation
-Specialty-Construction of statute-Seoerable provisions-R.S.M., s. 5-4 & Edw. VII., 45, s. 4 (Alan.)- Appeal-Jurisdiction................ SHIPPING-laritime law-Tug and -Contract of navigation-Collision of tug- Liability of tow-Foreign ship-Proceedings in foreign court-Jurisdiction in Canada..............................
SOLICITOR CLIENT - "Expropriation Act," R.S.C., ss. 31-Abandonment of proceedings- Compensation-Allowance of interest- Construction of statute-Practice-Taxation of costs-Solicitor and client-Reimbursement of expenses-Interpretation formal judgment-Reference opinion judge............................... SPECIFIC PERFORMANCE-Lease land-Special condition-Promise of sale- Option-Pacte prdfdrence-Unilateral contract-Real rights-Registry laws- Arts. C.C.-Damages-Right
Materials for construction-Notice to treat
Act," R.S.C., c. ss.
196-Compensation
-Date for ascertainment of value-Order for possession-Deposit of plans-Approval of Board of Railway Commissioners.]
With regard to obtaining materials the construction of railways, the effect sub-section section the
"Railway Act," R.S.C. ch.
merely requires the general provisions the Act relating to the using and taking lands to be observed in so far as they are appropriate to the expropriation the lands and settling the compensation to be paid therefor; section the
Act has no application to such a case.- Notices were given in compliance with sections and the "Railway
Act," and, before any change had taken place in respect to the value of the lands to be taken, the railway company obtained an order a judge permitting it to do so and took possession the lands question.-Held, that the title the company to the lands, when consummated, must be considered as relating back to the date when possession was taken and that the compensation payable therefor should be ascertained with reference to that time.-Judgment appealed from Alta. L.R. affirmed.
2-Licence cut timber-Indian lands- R.S.C. ss. and 55-Licence for twelve months - Regulations-Renewal of licence.] Section R.S.C.
(now R.S.C. ch. enacted that licences might be issued to cut timber on Indian lands and sec. that licence shall be so granted for a longer period than twelve months from the date thereof."
the Governor-General in Council and sanctioned by Parliament it was provided that licence holders who had complied with all existing regulations should be entitled to renewal on application.- Held, affirming the judgment of the Exchequer Court Ex. C.R. that a licence holder who has complied with the regulations has no absolute right to a renewal as a regulation making perpetual renewal obligatory would be inconsistent with the statutory limitation twelve months and, therefore, nonoperative.
v. . .. 3-Construction of Statutes-" Railway tolls-R.S.C.
section the "Railway Act" the Railway Board may, on application the owner an industry within six miles a railway order the company to construct and operate a spur line from its railway to such industry, the applicantto provide for the cost construction and be repaid by a rebate to be fixed by the Board "out or in proportion to the tolls charged by the company in respect the carriage traffic for the applicant over the said spur or branch line."- Held, Anglin J. dissenting, that such rebate was not restricted to the tolls for carriage goods over the said spur, but was applicable to the tolls for carriage traffic over the company'a main line to and from the said industry. 4- Railways - Operation-Equipmentmaintain-Protection of employees-Inspection gence-Findings of jury-Evidence-Comway Act," R.S.C., Construction of statute-Vis major.] A car attached to a fast-freight train arrived at a station on the railway, in Saskatchewan, during a cold night in the winter; it was equipped with an approved and, in consequence, the plaintiff, an employee, sustained injuries. Subsequently the coupler was taken apart and it was then discovered that the lockingblock was jammed with ice (not visible from the exterior) which had formed inside the chamber and prevented its release by the uncoupling device used to disconnect the car before the train was
In an action for damages, instituted in the Province Manitoba, the jury found that the company had been negligent "through lack proper inspection," and judgment was entered on their verdict.
On appeal from the judgment the Court Appeal for Manitoba setting aside the verdict and entering judgment for the defendants:--Held, per
Fitzpatrick C.J. and Davies and Anglin
JJ.-The obligation resting upon the company, both under the statute and at common law, was discharged by the customary inspection the car which had been made according to what was shewn to be good railway practice, and there was no further duty imposed in regard to unusual conditions not perceivable the ordinary methods inspection.- Per Davies and Anglin JJ.-Viewed as a dict the jury upon the technical quesbe set aside as being against evidence.
v. Hill L.T. 29); Jackson v. Hyde
U.C.C.P. referred to.-Per Anglin J. (Idington contra).-The defence common employment, although taken away by legislation in the Province sustained, was available as a defence the courts of Manitoba, where the action
The "Halley"
(L.R. 2
P.C. referred to.-Judgment appealed from Man. R. affirmed,
Idington and Duff JJ. (dissenting)
.-Per
Idington and Duff JJ. (dissenting)
.-Section of the "Railway Act" imposes upon railway companies the absolute and continuing duty not only to provide, but also to maintain in efficient use the apparatus thereby required; where it is shewn that the apparatus failed to operate, when used, the onus is upon the railway company, in an action under section
Johnson v. Southern Pacific Co.
PHLAN
V. PAciFic Co.
&--Dominion corporation registration-Juristic disability-Right action-Contract-Carrying business compliance with S.C. Rule-Costs.] A company, having its chief place business in the Province Quebec and incorporated under the Dominion statute with power to trade and carry on its business throughout the Dominion Canada, did not comply with the provisions the "Foreign Companies Act," R.S. Sask., ch. requiring registration previous to carrying on business within the Province Saskatchewan.
In the ordinary course its business, it sold and brought certain machinery into the province and did the work of installing therein for price which included setting it up and starting it working.
An action for the contract price was dismissed the judgment the trial court (6 West. W.R. and this judgment was affirmed by the Supreme Court Saskatchewan, on the ground that the registered extra-provincial company was denied the right action in the courts the province by the tenth section of the "Foreign Companies act."-On appeal to the Supreme Court Canada, the judgment appealed from West. W.R. Idington J.-The more setting up and starting the working the machinery by the extra-provincial company did not constitute the carrying on business in the Province Saskatchewan within the meaning the "Foreign Companies Act."-Per Anglin J.-The installation of the plant was a substantial part the consideration the contract and, consequently, the unregistered extra-provincial would denied the right enforcing its claim by action in the courts the province under the provisions the tenth section the "Foreign Companies Act," but, inasmuch as the legislation question had the effect depriving the extra-provincial company the status, capacities and powers which were the natural and logical consequences its incorporation by the Dominion Government, it is ultra vires the provincial legislature and inoperative for the purpose depriving the company of its right to maintain the action in the provincial courts. John Deere Plow Company v. Wharton
Costs were refused the appellant, on the allowance the appeal, in consequence non-compliance with Supreme Court [S.C.R. VOL. Li. Rule No. 30 in respect of the printing of the statutes regarding which questions were raised.
........
Registration
Rectification of register-Jurisdiction of Exchequer Court-Construction of statute- "Trade Mark and Design Act," R.S.C.,
"Exchequer
Court Act," R.S.C.,
Under the provisions of sections 12, and 42 of the "Trade Mark and Design
Act," R.S.C., 1906, ch. 71, and the twenty-third section of the "Exchequer
Court Act," R.S.C., 1906, ch. 140, the
Exchequer Court of Canada has jurisdiction to order the rectification of the register of trade marks, at the suit of any person aggrieved, notwithstanding visions of the "Trade Mark and Design
Duff J. dissented.-The judgment appealed from Ex. C.R. 265)
was affirmed.
In re
7-Constitutional law - Provincial legis- Taxation
Property within province - Bona nota- Sale
Specialty
Construction of statute - Severable provisions
- R.S.M.
(Man.)- & Edw. VII., s. 4 (Man.) - Appeal-Jurisdiction-Surrogate Court- Persona designata.] M., who died
June, 1908, had his domicile in Manitoba
Canadian Pacific Railway Company main the property M. who was to rereduction of the price for which they had
M. also owned lands chasers.
The agreements contained no lands. The executors denied the right of the Government of Manitoba to collect succession duties in respect of these debts Act," R.S.M., 1902, ch. 161, sec. 5, as re- Edw. VII., ch. 45, 4.-Per curiam. of Manitoba and, as such, was liable for toba statute. Also Davies J. dissenting, that under the agreements for sale of the "Kirkella Lands" a covenant to pay of Manitoba and were liable for succession quently, the legislation imposing them is intra vires of the provincial legislature.benefit of probate.-Per Duff J. In so duties in respect of property having a situs within Manitoba it is intra vires of the provincial legislature.
Rex v. Lovitt A.C. 212) followed. In so far as the statute professes to impose duties on and without respect to the domicile of the owner, the reasoning of Lord Moulton in Cotton v. The King ([1914] A:C. 176), applies, the result of which is that such beneficiary is domiciled abroad cannot be "direct taxation" within the meaning of section 92 of the "British North America to the restrictions mentioned in item 2 of section 92 of the "British North America The provisions of the Manitoba "Succes- Anglin JJ. questioned the jurisdiction of the Supreme Court of Canada under subsection (d) of section 37 of the "Supreme STATUTE-Gontinued.
Surrogate Court Manitoba.-Anglin vided for by section the Manitoba
Duties the the
Surrogate Court act order to the
Court Canada.-The judgment pealed from Man. R. was re
8-"Expropriation Act," R.S.C.,
- Abandonment ance of interest-Construction of statute
-Practice-Taxation of costs-Solicitor and client-Reimbursement of expenses- Interpretation of formal judgment-Reference to opinion of judge.] While the owners still continued in possession respect expropriation proceedings had been commenced under the "Expropriation Act," R.S.C.
ch. and before the indemnity to be paid had been ascertained, the proceedings were abandoned, no special damages having ben sustained.-Held, that in assessing the amount to be paid as compensation to the owners, under the provisions the fourth sub-section section the "Expropriation there could be no allowance interest either upon the estimated value the lands or upon the amount tendered therefor by the Government.-The trial judge, by his written opinion, held that the owners were entitled to be fully indemnified for their costs as between solicitor and client and for all legitimate and reasonable charges and disbursements made in consequence the proceedings which had been taken. The formal judgment provided merely that costs should be taxed as between solicitor and client.-Per Davies, Idington, Anglin and Brodeur JJ.-In the taxation costs, the registrar should follow the directions given in the judge's opinion to interpret the formal judgment as framed.
Duff J. contra.-Per Duff J.-The registrar, in taxing costs, is required by law to follow the terms the formal judgment and it is not open to him to correct it order to make it accord with his interpretation the opinion judgment. The court appealed from, however, may correct the formal judgment in so far as it does not express the intention the opinion judgment.
Shipping contract-Approvcd form- Release-"Railway Act," R.S.C., s. 340........................... Insurance
Fidelity Untrue representation
Materiality R.S.O., ss. 2.............. 11--Negligence-Obstruction of highway -Street railway-Trolley poles between tracks-Statutory authority-Protection by light............................... 12-General conflagration-Acts of municipal officials-Demolition of buildings- Statutory authority-R.S.Q., art. 4426............................ STATUTES-R.S.C., 36, ss. (Government railways) ............ R.S.C., ss. ("Railway Act") ........ 3-R.S.C.,
4- R.S.C., ("Railway R.S.C., 340 ("Railway A )..............................
6- R.S.C., ss. ("Railway Act"..................... R.S.C., (Timber licences) . .. . . . . .. . . .. .. .. . . . . . . .. . . . . . . .. . . R.S.C., ("Trade Mark and Design A ct")....................... s. ("Exchequer Court Act")........ ......... STATUTES-Continued.
10-R.S.C., ss.
("Expropriation Act") ..............
11-(D.) & 4 V., s. 1
("Supreme Court Act").............
R.S.O., ("Ontario Companies Act") .....................
13-R.S.O., (Insur- 14--R.S.Q., art. (Conflagrations)..............................
15-R.S.M., s. (Succession duties).........................
(M.) 4 & Edw. VII., s. 4
(Succession duties) ..................
17-R.S.
Sask, ss. 10
(Foreign companies) .................
SUBROGATION-Fire insurance-General conflagration-Acts of municipal cials-Demolition of buildings-Statutory authority-R.S.Q., art. 4426-Indemnity-Tort-Transfer of rights to municipality-Liability of insurer. Article
R.S.Q., empowers town corporations, subject to indemnity to the owners, to cause the demolition buildings in order to arrest the progress fires; in the absence of a by-law to such effect power sary demolition. In the Town of Chicoutimi, no such by-law having been enacted, the mayor gave orders for the demolition a building for the purpose arresting the progress a general conflagration and, in carrying out his directions, 'an adjacent building was destroyed which was insured by respondents for $4,700. The municipality settled with the owner by paying her $5,500, as full indemnity for all damages sustained, and obtained a transfer of her rights under her policy insurance.
action on the policy so transferred:- SUBROGATION-Continued.
Held (Duff J. dissenting), that, as the destruction the building insured was occasioned by an act justified by Statutory authority and full indemnity had been paid, the municipality was entitled to subrogation in the rights the owner and to maintain the action against the insurance company for reimbursement to the extent the amount the insurance upon the property.-Per Duff J. dissenting. Although the. destruction the building insured was occasioned by an act justified at common law, the rights the municipal corporation were determined by the principle laid down Citd Quibec v. Mahoney (Q.R. K.B. and the claim for reimbursement to the extent the amount for which the property was insured should not be maintained.
Quebec Fire Insurance Co. v. St. Louis Moo. P.C. applied. SUCCESSION
DUTY - Constitutional law -Provincial legislation -Succession duties-Taxation-Property within province-Bona notabilia-Sale of lands- Covenant-Simple contract-Specialty- Construction of statute-Severable provisions-R.S.M. 1902, c. s. (Man.) -4
& Edw. VII., s. 4 (Man.)- Appeal-Jurisdiction-Surrogate Court- Persona designata.] M., who died June, had his domicile in Manitoba Canadian Pacific Railway Company main the property who was to rereduction the price for which they had M. also owned lands chasers.
The agreements contained no lands.
The executors denied the right the Government Manitoba to collect succession duties in respect these debts Act," R.S.M., ch. sec. as re- SUCCESSION DUTY-Continued.
Edw. VII., ch. sec. 4.-Per curiam.
of Manitoba and, as such, was liable for toba statute.
Also Davies dissenting, that under the agreements for sale the
"Kirkella Lands"
a covenant to pay
Manitoba and were liable for succession quently, the legislation imposing them intra vires the provincial legislature.benefit probate.-Per Duff J. In duties in respect property having a situs within Manitoba it is intra vires the provincial legislature.
Rex v. Lovitt
A.C. followed.
In so far as the statute professes to impose duties and without respect to the domicile the owner, the reasoning Lord Moulton
Cotton v. The King A.C. applies, the result which is that such beneficiary is domiciled abroad cannot
"direct taxation" within the meaning section the "British North America to the restrictions mentioned in item of section 92 the "British North America
The provisions the Manitoba "Succes- Anglin JJ. questioned the jurisdiction the Supreme Court Canada under subsection section of the "Supreme
Surrogate Court Manitoba.-Anglin J.
vided for by section of the Manitoba
"Succession Duties Act" the judge of the
Surrogate Court would act as persona
SUCCESSION DUTY-Continued. appeal from his order to the Supreme Court of Canada.-The judgment appealed from Man. R. was affirmed.
In re SURETYSHIP-Company law - Trading company-Powers-Contract of suretyship -R.S.O.
An industrial incorporated under, governed by the "Ontario Companies Act," R.S.O. ch. has no power to guarantee payment advances by a bank to another company whose sole connection with the guarantor is that a customer, for the general purposes the latter's business, and such a contract suretyship is ultra vires and void.- Judgment appealed against Ont. L.R. SONS.................. Guarantee bond-Misrepresentation.. ........ SURROGATE COURT
TAXES-Constitutional law legislation-Succession duties - Taxation -Property within province-Bona notabilia-Sale of lands-Covenant-Simple I contract - Specialty - Construction statute -Severable provisions - R.S.M., 5-4 & Edw. VII., s. 4 (Man.)-Appeal-Jurisdiction... TIMBER-Licence to cut timber - Indian lands-R.S.C. ss. and 55- Licence for twelve months-Regulationslicense.]-Section R.S.C. ch. (now R.S.C. ch. enacted that licences might be issued to cut timber on Indian lands and sec. that "no licence shall be so granted a longer period than twelve months from the date thereof."
by the Governor-General in Council and sanctioned by Parliament it was provided that licence holders who had complied with all existing regulations should be entitled to renewal on application.- Held, affirming the judgment the Exchequer Court Ex. C.R. that a licence holder who has complied with the regulations has no absolute right to a regulation making TIMBER-Continued.
petual renewal obligatory would be inconsistent with the statutory limitation of twelve months and, therefore, nonoperative.
v. THE .....
TOLLS-Construction of statute-"Railway Act"-Spur line to industry - Rebate from tolls-R.S. 66, 1906, c. 37, s. 226.
TRADE MARK-Registration - Rectification of register-Jurisdiction of Exchequer Court-Construction of statute - "Trade Mark and Design Act," R.S.C.
Court Act," R.S.C.
Under the provisions of sections 12, and 42 of the "Trade Mark and
Design Act," R.S.C., 1906, ch. 71, and the twenty-third section of the "Exchequer Court Act," R.S.C., 1906, ch.
140, the Exchequer Court of Canada has jurisdiction to order the rectification of the register of trade marks, at the suit of any person aggrieved, notwithstanding visions of the "Trade Mark and Design
Duff J. dissented.-The judgment appealed from Ex. C.R. 265) was affirmed. In re
TRAMWAYS-Negligence - Obstruction of highway-Street railway-Trolley poles between tracks-Statutory authority - Protection light.]-The Act inborporating the Hamilton Street Railway Co. authorized the City Council to enter into an agreement with the company for the construction and location of the railway.
A by-law passed by the Council directed that the poles for holding wires should, on part of a certain street, be placed between the tracks, which was done under supervision of the City Engineer.- Held, reversing the judgment appealed against (32 Ont. L.R. 578), that the location of the poles was authorized by the legislature and did not constitute an obstruction of the highway amounting to a nuisance; the company was, therefore, not liable for injury resulting from an automobile while driven at night coming in contact with the pole.-Held, also, that as on the City Council was cast the duty of regulating the operation of the railway in respect to traffic and travelling on the street and it had made no regulation as to lighting the pole the
TRAMWAYS-Continued.
company was under no obligation to do so.
VALUATORS-Lessor and lessee-Lease of adjoining lots-Separate demises-Assigna whole-Consent of counsel.]Two leases of adjoining lots were, by assignment, vested in C. Each lease provided that if, on its expiration, the lessor refused to renew he should give notice thereof to the lessee and that valuators should be appointed to value the buildings on the land. Notice was given under each lease and valuators were appointed who, without objection by the lessor's counsel valued the buildings on the two lots as a whole and fixed $35,000 as the value of them all. In an action by the lessee to recover this amount, Held, reversing the judgment of the Appellate Division (32 Ont. L.V. 48), Davies and Anglin JJ. dissenting, that the valuation must be set aside, that the value of the buildings on the lots should have been ascertained separately.-Held, also, applying the principle of Cameron v. Cuddy ([1914] A.C. 651) that the action should not be dismissed, but that the same or other valuators should be appointed to ascertain'the value in a proper manner. IRWIN CAMPBELL........................ VERDICT-See
VIS MAJOR-Operation of railway - Equipment - Coupling apparatus-Duty to provide and maintain-Protection of etnployee - Inspection - Weather conditions -"Inevitable
Negligence - Findings of jury - Evidence - Common employment-Conflict of laws-"Railway Act," R.S.C., 1906, c. 37, s. 264-Construction of statute................... WORDS PHRASES - "Accepted 2- "Carrying on business" .......... 400 3- "Comment"................... PHRASES-Continued.
4- 5-"In pursuance of and by authority of this act"... .........................
PHRASES-Continued. 7- "Operation of railway" .......... 338 8- "Real estate agent" ............. 319 9- "Stored or kept"............... 1(-"Substantive right in controversy" Listing".................31
..................................
Cases cited
- A.C. 212 A.C. 212
- A.C. 176 A.C. 176
- A.C. 651 A.C. 651