Majority
Montreal (1), affirming the judgment of Martincau J. at the trial, and maintaining the action with costs. This was an action to define the rights of one Germain, plaintiff, under the testament of the late Charles Berger. The will was drawn in French, and the bequest in question was of an immovable property described in the following words:- It appears that, on that property on Mont Royal avenue, there were two stores in course of erection at the time when the will was made. The plaintiff contends that the bequest is of all the testator's property at the place mentioned, and the defendant, respondent, submitted that the portion of the property dealt with is limited to those houses which at the time the will was made bore the civic numbers therein mentioned. ' Both the courts below held that, in view of the doubt which exists as to what constitutes the subject matter of the legacy, extrinsic evidence was admissible to prove what the intention of the testator was, as imperfectly expressed by the notary who drew the will.
I-- On appeal to the Supreme Court of Canada, after hearing counsel on behalf of both parties, the court reserved judgment and, on a subsequent day, allowed the appeal with costs, Sir Charles Fitzpatrick C.J. and Anglin J. dissenting; Davies J., though thinking there was sufficient ambiguity in the language of the devise to admit.extrinsic evidence, was of the opinion that this appeal should be allowed on the questions of fact.
Atwater K.C. and J. A. Bernard for the respondent. APPEAL -Jurisdiction -Supreme
Court section 46-Future rights-Money payable to His Majesty.] The words where rights in future might be bound,"
contained in sub-section (b) of section 46 of the "Supreme Court Act," apply to each of the subjects mentioned in the first part as well as to those mentioned in the second part of said subsection:
Lariviere v. School Commissioners of
Three Rivers (23 Can. S.C.R. 723, followed.-(Idington and Duff JJ. contra).
OLIVIER V.
2- Jurisdiction-Company-Revocation of letters patent-Revivalofcharter-R.S.M.
c. 35, as. 77, 130.]
At the time leave to appeal to the Supreme Court was granted, the letters patent of the company appellant had been cancelled under section 77 of the "Manitoba Companies Act;" but subsequently its charter was revived under section 130 of the same Act.-Per Fitzpatrick, C.J. and Davies, Anglin and Brodeur JJ. The revocation of the charter operated as a mere suspension of the powers and functions of the company and the order-in-council reviving the letters patent of incorporation restored the company to its legal position at the time of the revocation as to the proceedings, instituted between such revocation and the re-instatement of the company, for an order allowing the present appeal to the Supreme Court of Canada.-Per Duff J. Without deciding whether acts of the officers of the company during the interregnum are in all respects to be deemed acts of the company, it is clear that the company, by virtue of the statute, is to be deemed to have been in possession of its powers during that period, and the act of its officers in applying for the order allowing the appeal, done in the name of the company, could be and has been ratified.--So long as there is no Dominion legislation inconsistent therewith, the capacity of a provincial corporation, as a legal persona to initiate and carry on an appeal in this court, is determined by the provincial law.
v. Tnoxe'soN ...................
APPEALe-continued.
3-Juridiction-" Supreme Court Act," sections 39 and 46-Prohibition-Future rights.] The words "where rights in future might be bound," contained in sub-section (b) of section 46 of the "Supreme Court Act," apply to the whole sub-section: Olivier v. John (55 Can. S.C.R. 41), followed.-Per Davies, Idington, Duff and Anglin JJ. Section 39 of the "Supreme Court Act," giving an appeal to the Supreme Court in cases of prohibition, is limited and controlled by section 46 of the same Act: Desormeaux v. The Village of Ste Thkrase (43 Can. S.C.R. 82), followed.-Per Fitzpatrick C.J. No appeal lies to the Supreme Court of Canada from the judgment of a court of the Province of Quebec rendered upon an application for a writ of prohibition against proceeding with the hearing of a criminal charge: Gaynor and Green v. The United States of America (36 Can. S.C.R.
247), followed.
SORGIws.......................... 4--Expropriation-Market value-Prospective value-Evidence-Appeal by the Crown - "Expropriation Act," R.S.C. 1906,
The appeal from the judgment of the Exchequer Court of Canada (16 Ex. C.R. 146) was allowed, Fitzpatrick
C.J. dissenting. - Where compensation awarded is so clearly and grossly excessive that it is manifest that the correct principles of valuation, though stated in the abstract have not been applied, interference on appeal is not merely warranted, but ex debito justitiae.-Per Fitzpatrick C.J. dissenting.
In an appeal to the Supreme Court from the award of an arbitrator, when the question of value has been fully discussed before him and no mistake of law or fact is alleged, the mere suggestion that the amount of compensation is excessive or inadequate ought rarely to be considered a sufficient ground of objection to the award; and this principle must be applied with even more force in the case of an appeal by the Crown, the Exchequer Court being its own tribunal. KING v. HEARN.................. AWARD -Expro priation-Arbitrators-Excess of jurisdiction-Award final and without appeal
-Compensation-Building lots-Articles
5790 to 5800 R.S.Q.] The appellant, by means of expropriation proceedings, obtained a servitude over lands of respondent; and, under the authority of articles
5790 to 5800 R.S.Q., an arbitration took place to decide the amount of compensation payable to respondent.
Prior to expropriation, the respondent laid out as building lots part of his lands, which were devoted mainly to agricultural uses.
Article 5797 R.S.Q. provides that the award of the arbitrators should be firial and without appeal. Appellant took an action to set aside the award of the arbitrators.-Held, per Fitzpatrick C.J.
Duff and Anglin JJ. The arbitrators were within the scope of their jurisdiction in valuing the lands of respondent as town building lots instead of as agricultural property, as the decision, as to whether the lands had a present marketable value as town lots or not, was a question of fact upon which it was the duty of the arbitrators to pass.-Per
Duff J. Upon the evidence of the arbitrators, it has not been proven that they had based their award upon an appraisement of something which was not the thing they were authorized to appraise, which they would have done if they had taken, as their starting point, not the value of the property as of the date of the expropriation, including the value as of that date of its economic potentialities, but the value as of a later date.-Per Duff J. An award being a decision of one having limited authority, whether given by agreement of the parties or by statute, is pro tanto void if the arbitrator appraises something he was not directed to appraise and void altogether if that part which is void cannot be severed from the rest, it being immaterial whether the arbitrator has acted by mistake or by design.-Appeal dismissed, Davies and Idington JJ. dissenting.
TowN
TOURNEAU........................
ASSESSMENT
TAXES-Munic.pal corporation-Assessment and taxation-Railway taxation-Acreage or mileage basis-" Roadway"-"Superstructure"
-- C.O. of the N.W. Territories, 1898, c. 71
8. 3-Crown lands-Equitable ownership- "B.N.A. Act, 1867," s. 125.]
A railway company which, having purchased Crown
ASSESSMENT AND TAXES-cont. lands and paid part of the price of sale is, by arrangement, entitled to possession and to complete the purchase later, the title remaining in the meantime in the Crown, is properly assessed as the equitable owner and actual occupant of the land.-Smith v. Vermillion Hills (49 Can. S.C.R. 563, [1916] 2 A.C. 569, and Southern Alberta Land Company and The Rural Municipality of McLean (53 Can. S.C.R. followed. - Per Davies J. The word "superstructure" is intended to mean only the superstructure constituting the line of railway and does not include any buildings or structures upon, or adjoining the line of railway, which, though used for railway purposes alone, form no part of that line.-Per Idington J. "The roadway and superstructure thereon" comprises all the acreage of trackage and superstructure of any kind in use for actual running of the railway and must be assessed on the mileage basis; and the land to be assessed on the acreage basis is the land not in use, but held for prospective use.-Per Duff J. and Brodeur JJ. dissenting.-"Roadway" means the continuous strip commonly known as the "right of way."
PACIFIC THE OF CALGARY'........................ 2- Municipal corporation-Taxes- Payment-Cheque-Bill of exchange.] On a demand for taxes, the following words appear: "All cheques in payment of taxes must be made payable to the City of Calgary and accepted by bank." appellant delivered to the tax collector of the city respondent an instrument purporting to be an accepted cheque on the Dominion Trust Company in payment of taxes due upon lands belonging to him. Before the presentation of the cheque for payment, the Dominion Trust Company ceased to do business.-The judgment of the Appellate Division of the Supreme Court of Alberta (10 Alta. L.R. 102), that the appellant's taxes had not been paid was unanimously affirmed.-Per Duff and Brodeur JJ. The tax collector had no authority to receive in payment of taxes an accepted bill of exchange, and the order on the Dominion Trust Company was not an accepted cheque on a ank.-Per Brodeur J. The tax collector was not authorized to receive payment of taxes otherwise than by legal tender.
...... ASSESSMENT AND TAXES-cont.
[1914] c. 193, ss. 47 and 48-R.S.O. [1914]
c. 280, a. 10.] Rates for meeting the cost of local improvements under the Ontario
"Local Improvement Act" are taxation.
-By sec. 10 of its Act of incorporation the property of the Upper Canada College is "exempt from taxation in the same manner and to the same extent as property vcsted in the Crown."
Sec. 5 of the
"Ontario Assessment Act" provides that
"the interest of the Crown in any property is declared to be exempt from taxation" and sec. 6 that "the exemption provided for by sec. 5 shall be subject to the provisions of the 'Local Improvement Act' as to the assessment of land for local improvements which would otherwise be exempt from taxation."
"Local Improvement Act" contains no express provision for levying rates on
Crown lands and no machinery for collecting any such rates.-Held, that under this legislation the property of the Crown was not subject to assessment for the cost of local improvements and that of the
Upper Canada College was also exempt.- By sec. 47 of the "Local Improvement
Act" "the land of a University, College or Seminary of learning
*
*
* exempt from taxation under the 'Assessment
*
*
* shall be liable to be specially assessed."-Held, that this section does not apply to land of Upper
Canada College which is not exempt under the "Assessment Act" but under its own special Act.-Sec. 48 of said Act provides that "lands exempt from taxation for local improvements shall, nevertheless, for all purposes except petitioning for or against undertaking a work be
*
*
* specially assessed" but the special assessment shall not be collectable from the owner.-Held, that under this section
Upper Canada College is not an essential party to a petition for local improvements affecting its lands.-Judgment of the
Appellate Division (37 Ont. L.R. 665), or TORONTO................
4- Saskatchewan-Local
Government
Board-Revision-5 Geo. V. c. 9, s. 1
(Sask.]
WILSON..................
AWARD.
BROKER-Customs broker-Power of attorney-Excess of authority-Fraud.. 374 CASES.
1-Bank of Toronto v. Harrell (23 B.C. Rep. 202) reversed................ 2-British Westinghouse Electric and Mfg. Co. v. Underground Electric Railways Co. ( [1912] A.C. 673) applied ....... 3--Calgary, City of, v. Collings (10 Alta. L.R. 102) affirmed............ -- Canadian Collieries Co. v. Dixon (24 B.C. Rep. 34) affirmed.......... 5-Canadian Mortgage Invt. Co. v. Cameron (33 D.L.R. 792; [1917] 2 W.W.R. 18) reversed...................... 6--Chalmers v. Machray (26 Man. R. 105) affirmed..................... 7-Clark v. Hepworth (9 W.W.R. 802) 34 W.L.R. 175) affirmed........... 8-Cranston v. Town of Oakville (10 Ont. W.N. 315) affirmed........... 9-Desjardins v. Mignaut (23 R.L. N.S. 85) affirmed................. 10- Desormeaux v.
Village of Ste. Thirase (43 Can. S.C.R. 82) followed. 324 11- Dixon v. Canadian Collieries Co. (24 B.C. Rep. 34) affirmed.......... See 8.
12-Edmonton Portland Cement Co. v. Duplessis (11 Alta. L.R. 58) affirmed.. 623 13-Fafard v. City of Quebec (Q.R. 26 K.B. 139) affirmed................ IN
CASES-continued.
14--Gaynor and Green v. United States of America (36 Can. S.C.R. 247) followed
.................................
15--Germain v. Clavel (Q.R. 51 S.C.
165) reversed.....................
16- King, The, v. Canadian Pacific Rly.
Co. (14 Ex. C.R. 150) affirmed ......
King, The, v. Hearn (16 Ex. C.R.
146) reversed..................
18-King, The, v. Murphy (16 Ex. CR.
81) reversed......................
19-Knott v. Telegram Printing Co. (27
Man. R. 336) affirmed............
20- Lariviere v. School Commissioners of Three Rivers (23 Can. S.C.R. 723) followed............................
21-Mulhern v. Montreal Tramways Co.
(Q.R. 26 K.B. 456) ...............
See 5.
22- Nelson v. Canadian Pacific y.
Co. (35 D.L.R. 318; [1917] 2 W.W.R. 294)
See 9.
23- Nicholls v. McNeil (50 N.S. Rep.
67) affirmed........................
24- Nicola Valley Lumber
Meeker (31 D.L.R. 607; [19171 1 W.W.R.
566) affirmed.....................
25--Olivier v. Jolin (55 Can. S.C.R. 41)
followed..........................
Rosborough v. Trustees of St. Anddrew's Church (44 N.B. Rep. 153) affirmed
.................................
27-Royal Bank v. Pope (11 Alta. L.R.
68) affirmed......................
[S.C.R. VOL. LV. CASES-continued.
28- Sheppard v.
Bulletin Co. - (27 D.L.R. 562) reversed.............. 29-Sherwood, Rural Municipality, v. Wilson (9 Sask. L.R. 417) affirmed.. 617 30-Smith v. Vermillion Hills (49 Can. S.C.R. 563; [1917] 2 A.C. 569) followed 103 31-Southern Alberta Land Co. v. Rural Municipality of McLean (53 Can. S.C.R. 151) followed.............. 32--Standard Reliance Mortgage Corp. v. Stubbs (27 Man. R. 276) reversed.. 422 33-Stewart v. St. Lawrence Flour Mills Co. (Q.R. 26 K.B. 476) affirmed 642 See 6.
34- Upper Canada College v. City of Toronto (37 Ont. L.R. 665) affirmed. 433 35-Wade v. Crain (35 Ont. L.R. 402). 36-Western Trust Co. v. City of Regina (30 D.L.R. 548, 34 W.L.R. 1125) COMPANY-Appeal - Jurisdiction - Company-Revocation of letters patent- Revival of charter-R.S.M. c. 35, as. 77, 130.]Atthetimeleave to appeal to the Supreme Court was granted, the letters patent of the company appellant had been cancelled under section 77 of the "Manitoba Companies Act;" but subsequently its charter was revived under section 130 of the same Act.-Per Fitzpatrick C.J. Davies, Anglin and Brodeur JJ. The revocation of the charter operated as a mere suspension of the powers and functions of the company and the order-incouncil reviving the letters patent of incorporation restored the company to its legal position at the time of the revocation as to the proceedings instituted between such revocation and the re-instatement of the company for an order allowing the present appeal to the Supreme Court of Canada.-Per Duff J. Without deciding whether acts of the officeis of the company during the interregnum are in all respects to be deemed acts of the company, it is clear that the company, by virtue of the D)EX
COMPANY-continued.
statute, is to be deemed to have been in possession of its powers during that period and the act of its officers in applying for the order allowing the appeal, done in the name of the company, could be and has been ratified.-So long as there is no
Dominion legislation inconsistent therewith, the capacity of a provincial corporation, as a legal persona to initiate and carry on an appeal in this court, is determined by the provincial law.
2--Company law-Assignaent of debt
-Security-" Mortgage or charge"-Registration-"Companies Act,"
R.S.B.C.
1911, c. 39, a. 102.] A contract was entered into between the respondent company and the City of Vancouver for paving some of its streets; and it was provided that the city whould retain ten per cent. of the contract price for twelve months after the completion of the work to insure the carrying out of the contract. The respondent, being indebted to the appellant for the purpose of the materials required for the work, assigned to the appellant, before the expiration of the twelve months, the monies so conditionally retained by the city. The respondent went afterwards into liquidation.-Held, Fitzpatrick C.J. and Anglin J. dissenting, that such assignment, while in form absolute constituted a "mortgage or charge,"
within the meaning of section 102, chapter
39, R.S.B.C. 1911, requiring registration as against the liquidator of the insolvent company.
DomImoN v. NcIKSoN Co.................
3-Transfer of shares - Contractv. REARDON.............
4- Family stock - Judgment against holder of one share-Liability of others- Representations to bank-POPE v.
BANK...........................
CONSTITUTIONAL LAW-Illegal fishing
-Three mile limit-Ialand--Coast-Treaty of 1818.] A foreign vessel is liable to seizure for fishing or preparing to fish within three marine miles from the shores of an island part of the Dominion of Canada and situate fifteen miles from the mainland of Nova Scotia.-The term
"Coast" in the treaty of 1818 by which the United States renounced the right to fish within three marine miles of the coast of any British territory is not confined to the coast of the mailand. THE
J. THE 348
CONTRACT-Sale of brickyard-Default -Repossession--Ownership of bricks-Setoff-Mutual debts-"Ontario Judicature Act," R.S.O. [1914] c. 56, s. 126-" Winding-up Act," R.S.C. [1906] c. 144, a. 71.] B., owner of a brickyard, gave an option of purchase to V. part of the price to be paid in debentures and stocks of a company formed at the time. The option was assigned to and exercised by said company, which made default in the payments and afterwards went into liquidation under the Dominion Winding up Act. B., under the terms of the option agrcoment, re-entered into possession of the brickyard and of the bricks manufactured and in process of manufacture. W., liquidator of the company, brought action against B. for the value of said bricks.-Held, affirming the judgment of the Appellate Division (35 Ont. L.R. 402,) that the manufactured bricks were the property of the Company and B. was liable to account for their value.- Held, also, that B. was not entitled to setoff against the liquidator's claim the amount of the debentures of the company transferred to him as part of the price of the property.
...... 2-Validity - Ratification-Drunkeness -Void or voidable contract.] The contract entered into by a man whilst in a state of drunkeness is not void, but only voidable, and is therefore capable of ratification by him, when he becomes sober; and the failure to repudiate such contract within a reasonable time, where the circumstances are such that in justice the right of option should be exercised with promptness, should be deemed tantamount to an express ratification. Duff J. dissented.
Co. v. Ross ..... 3- Principal and agent-Ostensible authority-Acts beyond scope of agency-Contract-Recission of-Sale.] The respondents, both residing in Great Britain, were in the habit of speculating in lands in Canada, employing as their agent and attorney one Cassels, a solicitor practising at Edmonton. An agreement of sale was passed between the appellant and the respondents represented by Cassels for the purchase of certain lands situated in Alberta; and it was therein provided that, on payment of the price of sale, the appellants would transfer the lands to the respondents "free and clear of all liens, charges, mortgages and encumbrances." The lands were not then owned by the CONTRACT-continued.
appellants, but by other parties whom they represented, and who had acquired the property with the exception of "all coal and minerals and the right to work same."
The first instalment of the price of sale was paid at the signing of the agreement; but, when the second instalment became due, the respondents being then aware that the lands bought by them did not comprise the coal and minerals, brought an action against the appellants for the rescission of the contract of sale and for reimbursement of the pay-ment made under it.-Held, Brodeur J.
dissenting, that if Cassels, professing to act on behalf of the respondents, assented to an agreement to purchase the lands in question minus the coal and minerals, he was acting beyond the scope of his agency.
It is no answer to the action to say that the appellants were prepared to carry out the terms of the written agreement by conveying to the respondents a valid title to -the coal and minerals: the appellants having declared their refusal to be bound by the obligations by which ex hypothesi they were legally bound, the respondents were entitled to treat the contract as rescinded and withdraw from it-The appellants having contracted in the agreement of sale without qualification as principals, it is not open to them, as between themselves and the respondents, to allege that the moneys paid under the contract were paid to them as agents only.
U
4-Fraud
- Misrepresentation - Evidence-Burden of proof-Promisory note
-Renewal-Jury trial-General verdict- Specific answers-Judgment non obstante veredicto-Order 58, r. 4, Supreme Court
Rules of British Columbia, 1906. The respondent made a promissory~note, upon the assurance by one Vanstone, a local mgnager of the bank appellant, that no part of the proceeds of it should be applied otherwise than as agreed upon between themselves. The respondent, however, with full knowledge of the violation of such assurance, but on being promised by said Vanstone that he "would take care of the loan," was induced to renew the note. In an action by the appellant for the payment of the renewal note the trial judge put certain questions to the jury which were answered, but a general verdict in the respondent's favour was also rendered by the jury.-Held, Idington
CONTRACT-continued.
and Duff JJ. dissenting, that no reasonable view of the evidence supports the conclusion that the renewal of the note sued upon was procured by fraud. That being the sole defence, the general verdict for the defendant must be set aside.-Per Fitzpatrick C.J. Misrepresentation, such as in the circumstances of the present case, even if it amounted to what was called legal fraud, is not sufficient to found an action for deceit, but actual fraud must be proven.-Per Davies and Anglin JJ. The general verdict in the respondent's favor being inconsistent and irreconcilable with the jury's specific answers to the questions put, must be ignored; and the verdict for the appellant as entered by the trial judge, and based on these specific answers, should be restored.-Per Idington J. dissenting.
The dishonest expression of an intention having an important bearing upon the business which contracting parties are about may be just as *ross a fraud in law as a misrepresentation of any other fact.-Per Idington and Duff JJ. dissenting.-The admission of the evidence of the assurances alleged to have been given by Vanstone and acted upon by respondent in executing the renewals, was not in any way in conflict with the rule which forbids the reception of parol evidence to contradict, vary or add to the contents of a written instrument, which the parties have intended to be the record of a transaction.- Per Duff J. dissenting. The execution of renewals by respondent with a knowledge of fraud, standing by itself, is indubitably an "unequivocal act" whereby he was manifesting his intention to treat the contract as binding upon him, unless attendant circumstances justify the inference that the execution of these renewals was to be treated as a provisional measure until some future settlement might be arrived at.-Per Anglin J. Upon the evidence, respondent's acts in renewing the note were unequivocal and amounted to notice of his election not to repudiate his liability.-Judgment of the Court of Appeal (23 B.C. Rep. 202) reversed, Idington and Duff JJ. dissenting. BANK
5- Company-Transfer of shares.]- 6-Sale of land-Concealment of agency.] CRIMINAL LAW-Perjury-Evidence- Corroborative evidence-Criminal Code, section 1002.] The appellant was convicted of perjury for swearing that "he did not get from one Frank Brunner a cheque for four thousand dollars."
Brunner swore that he gave the cheque in question to the appellant and the only evidence relied on as corroborative of his was that of one
Smith, bank manager, who swore that he cashed the cheque for the appellant.- Held, that the evidence of Brunner was
"corroborated in some material particular
*
*
* implicating the accused,"
by the evidence of Smith, as required by section 1002 of the Criminal Code.
PET- KING...............
"exempt from taxation in the same manner and to the same extent as property vested in the Crown."
Sec. 5 of the
"Ontario Assessment Act" provides that
"the interest of the Crown in any property is declared to be exempt from taxation" and sec. 6 that "the exemption provided for by sec. 5 shall be subject to the provisions of the 'Local Improvement
Act' as to the assessment of land for local impiovements which would otherwise be exempt from taxation."
The "Local
Improvement Act" contains no express provision for levying rates on Crown lands and no machinery for collecting any such rates.-Held, that under this legislation the property of the Crown was not subject to assessment for the cost of local improvements and that of the Upper Canada College was also exempt.
or ToRoNro..............
CROWN LANDS-Purchase-Delay in
Completion-Possession by purchaser- Equitable ownership...............
DAMAGES-Libel-Excessive damages.]
CO.
DEBTOR AND CREDITOR - Company law-Assgnmeniojdebt-Security-" Mortgage or charge"-Registration-"Companies Act," R.S.B.C. 1911, c. 39, s. 102.] A contract was entered into between the respondent company and the City of
DEBTOR AND CREDITOR-continued. Vancouver for paving some of its streets; and it was provided that the city should retain ten per cent. of the contract price for twelve months after the completion of the work to insure the carrying out of the contract. The respondent, being indebted to the appellant for the purchase of the materials required for the work, assigned to the appellant, before the expiration of the twelve months, the moneys so conditionally retained by the city. The respondent went afterwards into liquidation.-Held, Fitzpatrick C.J. and Anglin J. dissenting, that such assignment, while in form absolute, constituted a "mortgage or charge," within the meaning of section 102, chapter 39, R.S.B.C. 1911, requiring registration as against the liquidator of the insolvent company. ELECTION-Will-Devise of mortgage- Maintenance-Rights of devisee ...... EMPLOYER
EMPLOYEE- Suretyship-Employee-Guarantee of payment of salary-Mitigation of damages.1 C., by contract with a manufacturing company, was employed for five years and payment of his salary was guaranteed by a director. In three years thereafter the company went into liquidation and he was unemployed for the balance of the term. Shortly after the liquidation of the company he and an associate purchased most of its assets by the sale of which he made a profit of $11,000. In an action on the guarantee for $9,000, salary for the two years of his engagement with the company.-Held, affirming the judgment of the Appellate Division (38 Ont. L.R. 396, which reversed that at the trial (37 Ont. L.R. 488), that the action taken by C. which realized a profit exceeding the amount he is claiming arose out of his relations with his employers and the diminution of his loss thereby must be taken into account though he was under no obligation to take it. British Westinghouse Electric and Mfg. Co. v. Underground Electric Railways Co. ([1912 A.C. 673) applied.
Co........... 264 ESTOPPEL-Conduct-Agreement for sale - Condition.... .................. EVIDENCE-Sale-Recovery of moneys paid-Evidence-Onus probandi-Estoppel by receipt.] The appellant, having sold a property to one Arnold, purporting to act as agent for the respondent, received in part payment a cheque for $1,300 of the Dominion Trust Company of which
Arnold was manager.
The respondent, on the ground that the purchase was beyond the powers vested in Arnold, resisted an action of the appellant for the enforcement of the agreement and sued the appellant, by counterclaim, for the reimbursement of the $1,300 so paid, alleging that this sum, which was borrowed by
Arnold from the Trust Company, was repaid by Arnold out of his moneys in the hands of Arnold for investments.
trial judge and the Court of Appeal held, and it was not dispuied, that Arnold, in entering into the purchase in the name of the respondent, exceeded his authority.- Held, Duff J. dissenting, that the onus probandi as to the ownership of the moneys was not on the respondent, and that, even if it was so, the receipt in the agreement of sale and the facts leading up thereto were sufficient proof that the money paid to the appellant was that of the respondent.-Per Duff J. dissenting.
Respondent can not repudiate Arnold as his agent for the purchase and at the same time treat him as such in connection with the advances.
The receipt in the agreement for sale could only constitute an estoppel in an action based upon the agreement and between the parties to it.
On respondent lies the onus of showing that the moneys in question are his moneys;
and the admission derived from the receipt in the agreement. did not constitute a primd facie case sufficient to shift the burden of proof.
2-Libel - Admissibility.]
PRINTING CO. v. KNoTTw............
3- Promissory note-Consideration- Misrepresentation-Burden of proof.] Dup- 4-Burden of proof-Written instrument-Evidence to vary .............
EXPROPRIATION-Arbitrators
Excess of jurisdiction-Award final and without appeal - Compensation - Building lots- Articles 5790 to 5800 R.S.Q. [1909].] The appellant, by means of expropriation
EXPROPRIATION-continued.
proceedings, obtained a servitude over lands of respondent, and, under the authority of articles 5790 to 5800 R.S.Q., [1909], an arbitration took place to decide the amount of compensation payable to respondent. Prior to expropriation, the respondent laid out as building lots part of his lands, which were devoted mainly to agricultural uses. Article 5797 R.S.Q. provides that the award of the arbitrators should be final and without appeal. Appellant took an action to set aside the award of the arbitrators.-Held, per Fitzpatrick C.J., Duff and Anglin JJ. The arbitrators were within the scope of their jurisdiction in valuing the lands of respondent as town building lots instead of as agricultural property, as the decision, as to whether the lands had a present marketable value as town lots or not, was a question of fact upon which it was the duty of the arbitrators to pass.-Per Duff J.
Upon the evidence of the arbitrators, it has not been proven that they had based their award upon an appraisement of something which was not the thing they were authorized to appraise, which they would have done if they had taken, as their starting point, not the value of the property as of the date of the expropriation, including the value as of that date of its economic potentialities, but the value as of a later date.-Per Duff J. An award, being a decision of one having limited authority, whether given by agreement of the parties or by statute, is pro tanto void if the arbitrator appraises something he was not directed to appraise and void altogether if that part which is void cannot be severed from the rest, it being immaterial whether the arbitrator has acted by mistake or by design.-Appeal dismissed, Davies and Idington JJ. dissenting.
2-Market value-Prospective value- Evidence-Appeal by the Crown-"Expropriation Act," R.S.C. 1906, c. 143. The appeal from the judgment of the Exchequer Court of Canada (16 Ex. C.R. 146) was allowed, Fitzpatrick C.J. dissenting.-Where compensation awarded is so clearly and grossly excessive that it is manifest that the correct principles of valuation, though stated in the abstract have not been applied, interference on appeal is not merely warranted, but ex debito justitiae.-Per Idington J.-The EXPROPRIATION-continued.
cardinal rule to be observed in expropriation proceedings is to allow the market value only, except in cases where the taking has incidentally damaged the owner's business or other' material interests; and the advantages to be derived from the construction of the works for the promotion of which expropriation is made must be excluded in determining such market value.-Per Brodeur J.-The indemnity to be paid is the value to the owner of the property expropriated and such value is determined by the advantages, present and future, of the property; but the actual value only of these advantages, at the time of the expropriation, must be taken into consideration.-Per Fitzpatrick
C.J. dissenting.
In an appeal to the
Supreme Court from the award of an arbitrator, when the question of value has been fully discussed before him and no mistake of law or fact is alleged, the mere suggestion that the amount of compensation is excessive or inadequate ought rarely to be considered a sufficient ground of objection to the award; and this principle must be applied with even more force in the case of an a ppeal bythe Crown, the Exchequer Court being its own tribunal.
THE HEARN........
EXTRADITION - Spec(fic offence - Conviction for similar offence-" Extradition Act," R.S.C. [1906] c. 155, a. 32.]
B. was extradited to Canada from the
United States on a charge of fraud by instigating the publication in a newspaper, the News-Telegram, of a false statement that oil had been struck in a well in which he was interested.
He was convicted in
Canada of the offence of fraud in concurring in the publication of the same false statement in another newspaper no mention of which was made in the proceedings before the Extradition Commissioner.-Held, Idington and Brodeur
JJ. (dissenting)
, that B. was convicted for an offence other than the one on which the warrant for extradition issued and the conviction should be quashed.
BUCK v.
THE KING.......................
FISHERIES-Conslitutional law-Illegal fishing-Three mile limit-Island-Coast
-Treaty of 1818. A foreign vessel is liable to seizure for fishing or preparing to fish within three marine miles from the shores of an island part of the Dominion of
Canada and situate fifteen miles from the mainland of Nova Scotia.-The term
'Coast" in the treaty of 1818 by which
FISHERIES-coninued.
the United States renounced the right to fish within three marine miles of the coast of any British territory is not confined to the coast of the mainland.
J. THE KING........... FRAUD-Evidence-Burden of proof. 512 FUTURE RIGHTS
GUARANTEE- HUSBAND AND WIFE-Separate property-Evidence-Title to land.] INTEREST - Mortgage - Blended payments-Statement-Rate-R.S.C. [1906] c. 120 s.6....................
409, 422 LIBEL- Newspaper- Fair comment- Public interest-Personal corruption-Public and private reputation-Civic administration.] A newspaper article allegeid that the members of a municipal counc 1 (referring to the plaintiff and others), "will have to do a lot of explanation to satisfy the" public that their action "was for the protection of the city's interest and not because of a split as to a possible rake off
*
*
*
We have had one year of Tammany. We can't stand another." -Held, that no action for libel will lie against a newspaper which makes fair and reasonable comments upon the evil conditions prevalent in the city and upon corrupt and unlawful practices provided these comments to not exceed bounds of legitimate criticism could not be constued as imputing personal knowledge and corrupt intention on the part of a member of the municipal council. -Per Davies and Brodeur JJ., the court must decide this question, not on any possible interpretation which might be suggested of the language complained of, but upon such interpretation as is reasonably fair and as would be understood by the people of the city in question.-Per Fitzpatrick C.J. and Anglin J. dissenting. The statements complained of amount to allegations of personal corruption against the respondent.-Per Anglin J. Those statements go far beyond a fair expression of a reasonable inference from any proven facts and indicate an absence of that "honest sense of justice" and of that LIBEL-continued.
"reasonable degree of judgment and moderation" on the pait of the critic which are essential to sustain a plea of fair comment.
2-Misdirection-Admissibility of evidence-Damages.]-TELEGRAM
PRINTING
Co. v. KNOTT.....................
LOCAL IMPROVEMENTS-Asesment and taxes-Exemption from taxation- Local improvementa-Petition-Signatures
-R.S.O. 119141 c. 195, as. 5 and 6-R.S.O.
[1914] c.
193 es. 47 and 48-R.S.O.
11914] c. 280, a. Rates for meeting the cost of local improvements under the
Ontario "Local Improvements Act" are taxation.-By sec. 47 of the "Local
Improvement Act"
land of a
University, College or Seminary of learnin
*
*
* exempt from taxation under the 'Assessment Act' shall be liable to be specially assessed."-Held, that this section does not apply to land of Upper Canada College which is not exempt under the "Assessment Act" but under its own special Act.-Sec. 48 of said Act provides that "lands exempt from taxation for local improvements shall, nevertheless, for all purposes except petitioning for or against undertaking a work be *
*
* specially assessed"
but the special assessment shall not be collectable from the owner.-Held, that under this section
Upper
Canada
College is not an essential party to a petition for local improvements affecting its lands.-Judgment of the
Appellate Division (37 Ont. L.R. 665),
UPPER
TORONTO............... 433
MASTER AND SERVANT - Injury to employee - Mining - COLLIERIES CO. v. Dixo.... 620
2-Factory---Injury to employee-Contributory neglience.]
FLOU
MILLs o. STEWART......
MINES AND MINERALS-Yukon Territory-Gold Commissioner-Mining recorder-Powers and authority-Yukon Placer Mining Act, R.S.C. 1906, c. 64, as. 3, 4,
5, and 6, as amended by 7 & 8 Edw. VII., c. 77, a. 25.] Under the Yukon Placer
MINES AND MINERALS-cont. without any direction to that effect by the Commissioner of the Yukon Territory, since the Governor-in-Council had appointed only one Gold Commissioner for the Territory at the date of the grant; or such direction, if necessary, should be presumed to have been given.-The appeal from the judgment of the Exchequer Court of Canada (16 Ex. C.R. 81), was allowed. v. THE KING ............. MORTGAGE - Action to redeem - Disabilities
"Limitations Act" -Action for recovery of land.] The disability clauses of the Ontario "Limitations Act" (R.S.O. [1914] ch. 75) do not apply to an action by a mortgagor to redeem, Idington J. dissenting. Paulds v. Harper (9 Ont. App. R. 537; 11 Can. S.C.R. 639) considered.
Judgment of the Appellate Division (36 Ont. L.R. 587, Smria v. DARLING. . .. . .. 2-Statute - Application
"Interest Mortgage - Blended payments - Statements-Rate of interest-R.S.C. [19061 c. 120, s. Section 6 of the "Interest Act" (R.S.C. [1906] ch. 120) provides that "whenever any principal money or interest secured by mortgage on real estate is by the same made on the sinking fund plan, or any plan under which the payments of principal money and interest are blended
*
*
* no interest whatever shall be
*
*
* recoverable * *
* unless the mortgage contains a statement showing the amount of such principal money and the rate of interest chargeable thereon calculated earl or half-yearly not in advance."-Held, Davies and Idington JJ. dissenting, that the provisions of this section are complied with if the facts stated in the mortgage shew the amount of the principal and the rate of interest calculated as required; a special statement, complete in itself, of such amount and rate is not essential. -Therefore, where the mortgagor covenants to pay the principal and interest in ten half-yearly payments, and to pay interest on the principal, or so much thereof as remains due, at the rate of ten per cent. per annum and the same rate on any sum in arrear, the mortgagee is entitled to the interest.-Judgment of the Appellate
Division,
33 D.L.R. 792, ([1917] 2 W.W.R. 18), affirming that at the trial (32 D.L.R. 54, 10 West. W.R. 959),
INVESTMENT CO. V. ....... MINES AND MINERALS-cont.
3- Statute-" Interest Act"-Mortgage
-Blended payments-Statement - R.S.C.
[1906] c. 120, ss. 6 and 7.] A mortgage on real estate contained a covenant by the mortgagor to pay the combined principal and interest by monthly instalments and also provided that "it is further agreed between me and the said mortgagees that the principal is seven hundred dollars and the rate of interest chargeable thereon is ten per cent. per annum as well after as before default."-Held, reversing the judgment of the Court of Appeal (27 Man. R.
276), Davies and Idington JJ. dissenting, that these provisions constituted a statement of the amount of the principal and interest sufficient to satisfy the requirements of section six of the "Interest Act."
CORP.
v. STUBBS.....................
MUNICIPAL CORPORATION - Negligence-Municipal corporation-Statutory authority-Franchise-Electric transmission-Connecting wires-Public nuisance- Art. 5641 R.S.Q., a. 11.] The granting of a municipal franchise, to construct and operate an electric lighting system in a town and to use the highways for that purpose, does not entail upon a municipal corporation the duty of supervision of the construction or the operation of the works authorized. -The powers conferred by section 11 of article
5641 R.S.Q., on a municipal corporation to regulate the use of public streets and properties, are legislative or governmental and neither imperative nor ministerial;
and injury from a failure to exercise them does not give rise to a right of action except where specifically so provided.
The duty of a municipality to keep its highways free from nuisances is owed only to persons using the highways and not to ratepayers or others upon or in occupation of private properties; and a municipal corporation, which grants a franchise authorized by statute, cannot be held answerable in damages for an injury, sustained by an individual on his own property, ascribable to negligence in the carrying out of the undertaking for which such franchise has been given-The Chief Justice and
Idington J. dissented.-Judgment of the
Court of King's Bench (Q.R. 25 K.B.
124), affirmed.
v. THE or GRAND-MARE................
2- Exercise of statutory powers-Erection of lavatories-User-Damage to adjoining land-Injurious affection-R.S.O.,
MUNICIPAL CORPORATION-cont. 1914, c. 192, s. 325-Cons. Mun. Act, 1903, s. 437.] Depreciation in the selling or leasing value of land caused by the construction and maintenance, by the Municipal Corporation in the exercise of its powers, of lavatories on the highway is "injurious affection" within the meaning of section 437 of "The Consolidated Municipal Act" of 1903 (Ont.), and the owner is entitled to compensation, though none of his land is taken and no right or privilege attached thereto interfered with. Davies J. dissentin.-Judament of the Appellate Division (36 Ont. L.R. 189, 29) 3-Taxes
- Payment - Cheque -Bill exchange.] On demand for taxes, the following words appear: " All cheques in payment of taxes must be made payable to the City of Calgary and accepted by bank."
The appellant delivered to the tax collector of the city respondent an instrument purporting to be an accepted cheque on the Domimion Trust Company in payment of taxes due upon lands belonging to him.
Before the presentation of the cheque for payment, the Dominion Trust Company ceased to do business.- The judgment of the Appellate Division of the Supreme Court of Alberta that the appellant's taxes had not been paid was unanimously affirmed.-Per Duff and Brodeur JJ. The tax collector had no authority to receive in payment of taxes an accepted bill of exchange, and the order on the Dominion Trust Company was not an accepted cheque on a bank.-Per Brodeur J. The tax collector was not authorized to receive payment of taxes otherwise than by legal tender. CoL- 4-Maintenance of highways-Dangerous locality-Automobile.] QUEBEC....................... 5- Asseament - Local
Government Board-Revision-5 Geo. V. c. 9, s. 1 WILSON.................. 6-Maintenance of roads-Negligence.] NAVIGATION-Damages -Navigation - Obstruction-Causation-Public nuisance.] I The appellant was authorized to build a I bridge on the Upjier Fraser River, where I the respondent was operating a steam- NAVIGATION-continued.
boat service. The plans for the bridge were approved of by competent authority,
"subject to and upon the condition that if at any time it is found that a passageway for steamboats is required, the applicant company should provide the same upon being directed to do so either by the Department of Public Works or by the Board" of Railway Commissioners.
After the foundations of the bridge had been built, but before the superstructure had been erected, a letter was sent by the secretary of the Department of Pubbe
Works to the appellant, to say that he is directed to require the company to kindly submit plans for the swing spans necessary to provide passageways for boats.
No attention was paid to the request and the bridge was completed without providing a passageway.-Per Fitzpatrick C.J.,
Davies, Duff and Anglin JJ. Upon the evidence, the construction of the bridge was not the cause of the non-user of the river by the respondent's steamboat, Duff
J. dissenting however on the ground that respondent was entitled to damages, because the steamer was prevented from making a trip by the presence of a cable which the appellant had placed athwart the river.-Per Idington J. dissenting.
The order of the Board of Railway Commissioners must be held to have been conditional; and as, on the facts in evidence, leave to cross the river had been withheld by the Department of Public Works, there was an infringement of the respondent's rights.-Per Duff and Anglin JJ.
The condition contained in the order of the Board of Railway Commissioners did not contemplate a judicial "finding" by the Board itself before becoming operative.
-Per Anglin J. The placing of the bridge across the river without a passageway was unlawful and rendered the appellant liable for any actual damages sustained by the respondent such as would support a private action in respect of a public nuisance. TRUNK PAciFIc RLY. CO.
v. BRITIsH ExpRiss Co... 328
NEGLIGENCE-Damages - -Contributory negligence-Statutory powers-Collision-Railway crossing-Defective brakes-Electric street railway-Speed.]
The principle, that the contributory negligence of a plaintiff will not disentitle him to recover damages, if the defendants, by the exercise of care, might have avoided the result of that negligence, applies where the defendant, although not committing
NEGLIGENCE-continued.
any negligent act subsequently to the plaintiff's negligence, has incapacitated himself by his previous negligence from exercising such care as would have avoided the result of the plaintiff's negligence: British Columbia Electric Rly. Co. v. Loach [1916] 1 A.C. 719, followed.-The act of the respondent in coming out with defective brakes, though antecedent to the appellant's negligence, really prevented the motorman from stopping his car in time to avoid the collision, Duff J. dissenting.-It is unlawful for the driver of a car on a tram-line operated under the Dominion Railway Act to approach an unprotected highway level crossing at such speed that his car is not under reasonable control. - Judgment of the Court of Appeal (23 B.C. Rep. 160), reversed. BITHULIrc BRITISH RWAY. Co...... 2- Findings of jury-Railway company -Cars left on tracks-Extraneous interference-Anticipation.] The respondent was engaged in delivering creosoted paving blocks brought in freight cars over the British
Columbia Electric
Railway's tracks. The employees of the railway company, after having placed the cars so loaded at points indicated by the servants of the respondent, had taken care to set the air brakes and to have blocks placed and "pinched"
in front of the wheels. Later on the respondent's men, for their convenience, moved the cars further down the grade, put back the blocks without "pinching"
them and applied the brakes by hand. Then some school boys unloosened the brakes on the car furthest uphill which, being propelled by its own gravity against the lower ones, moved all the cars so that a collision took place at the foot of the hill between them and a passenger coach of the Electric Railway.-Held, Davies and Duff JJ. dissenting, that, upon the evidence, the employees of the respondent should have anticipated that the school boys might release the cars and that the respondent was liable for having taken no steps to guard against such interference.-Per Idington J. The question as to whether or not this interference was such an occurreene as ought to have been foreseen and provided against, is not a question of law, but a question of fact within the province of the jury.-Per Davies and Duff JJ. dissenting. The proximate and effective cause of the accident was the interference NEGLIGENCE-continued.
of the school boys, which the respondent had no reason to anticipate.
DomiNioN
3-Workmen's Compensation Act-Practice.] CO.
.................................
4-Municipal corporation-Maintenance of roads.] TowN
5- Tramway Co.-Injury to passenger- Cause of accident.]
MULHERN..................
6- Factory-Injury to employee-Contributory
CO. V.
7-Municipal corpoation-Maintenance of highways-Dangerous locality.]
QUEBEC................
8-Master and servant-Mining-Defectie system.]
9-Railway-Injury to switchman--Order of Railway Board-Defective system.]
..........
NEWSPAPER-Libel-Fair comment- Public and private character-Civic administration......................
PAYMENT-Mortgage - Blended paytwents-Rate of interest-Statement-R.S.C.
[1906] c. 120, a. 6.]...........409, 422
2, 3.
2--Condition precedent-Title-Excuse
-Crown grant................. 494
PRACTICE AND PROCEDURE-Negligence-Common law action-Abandonment of Appeal-Workmen's Compensation
..
2--Jury-General verdict-Answers to questions-Judgment non obstante veredicto
..................
PRINCIPAL AND AGENT-Power of attorney-Construction-Excess of authority
- Fraud - Evidence-Onus probandi- "Customs
R.S.C. 1886, c. 32,
PRINCIPAL AND AGENT-continued. ss. 157, 158 and 167, now R.S.C. 1906, c. 48, sa. 132, 133 and 264. The appellant company, pursuant to the requirements of section 157 of the "Customs Act," R.S.C. 1886, c. 32 (now R.S.C. 1906, c. 48, s. 132), gave to one Hobbs, customs broker, a power of attorney "to transact all business which" the appellant "may have with the Collector of the Port of Montreal or relating to the Department of Customs of the said Port
* * * , ratifying and confirming all that * * * said attorney and agent shall do * * Cheques to the order of the Collector of Customs were given to Hobbs on his requisition for the payment of duties on goods imported by the appellant, these cheques being made by the latter for fixed amounts corresponding to the invoices. Afterwards, through fradulent devices, Hobbs, having succeeded in passing entries for much smaller sums than the quantity of goods required, induced the Customs House cashier to take the cheques thus issued by the appellant for a higher amount than the one apparently due and either to apply the surplus in payment of duties owing by third parties or to reimburse him in cash. frauds having been discovered, the respondent sued the appellant for the amount of duties unpaid through the criminal method of Hobbs.-Held, affirmthe judgment of the Exchequer Court ofiCianada (14 Ex. C.R. 150), the court being equally divided, that, upon the facts in evidence, the appellant company had failed to prove that the Customs duties claimed from it had been paid to or received by the Crown, per Anglin J., the appellant having failed to discharge the burden placed upon it by the "Customs Act," R.S.C. 1906, c. 48, s. 264.- Per Fitzpatrick C.J., Duff, Anglin and Brodeur JJ. It was within the scope of the power of attorney given to Hobbs by the appellant company that he should receive for it, in cash, from the Customs officials, balances of cheques delivered by him to them, after deducting the duties payable in respect of entries made by Hobbs on behalf of the company appellant.-Per Fitzpatrick C.J. and Duff J. It was not within the scope of the power of attorney that he should direct the application of balances of the company's cheques in payment of duties owing by Hobbs' other customers; and such unreturned balances remained in the hands of the Crown the property of the company PRINCIPAL AND AGENT-continued.
notwithstanding such direction by Hobbs and the pretended application of the moneys accordingly.
FIc Co. v. THE KING.........
2--Ostensible authority-Acts beyond of agency-Contract-Rescission of
The responden s, bo h residing in Great Britain, were in the habit of speculating in lands in Canada, employing as their agent and attorney one Cassels, a solicitor practising at Edmonton.
An agreement of sale was passed between the appellant and the respondents represented by Cassels for the purchase of certain lands situated in Alberta; and it was therein provided that, on payment of the price of sale, the appellants would transfer the lands to the respondents "free and clear of all liens, charges, mortgages and encumbrances."
The lands were not then owned by the appellants, but by other arties whom they represented, and who had acquired the property with the exception of "all coal and minerals and the right to work same."
The first instalment of the price of sale was paid at the signing of the agreement; but, when the second instalment became due, the respondents being then aware that the lands bought by them did not comprise the coal and minerals, brought an action against the appellants for the rescission of the contract of sale and for reimbursement of the payment made under it.- Held, Brodeur J. dissenting, that if Cassels, professing to act on behalf of the respondents, assented to an agreement to purchase the lands in question minus the coal and minerals, he was acting beyond the scope of his agency.-It is no answer to the action to say that the appellants were prepared to carry out the terms of the written agreement by conveying to the respondents a valid title to the coal and minerals: the appellants having declared their refusal to be bound by the obligations by which ex hypothesi they were legally bound, the respondents were entitled to treat the contract as rescinded and withdraw from it.-The appellants having contracted in the agreement of sale without qualification as principals, it is not open to them, as between themselves and the respondents, to allege that the moneys paid under the contract were aid to them as agents only.
FRANco- Co. v. UREIG.. 395
3--ale-Concealment of agency.]
v. HEPWORTH....................
PRINCIPAL AND AGENT-continued. 4-Real estate agent-Option.] MiG- .............
5--Sale-Payment by agent-Onus probandi-Batoppel.................. PROHIBITION-Criminal charge Appeal............................. PROMISSORY NOTE-Consideration- Misrepresentation-Evidence.] .......... 2--Condition - Renewal - Notice - Election .......................... RAILWAYS-Defective system-Negligence -Order of Railway Board.]
PAcIIc Co......... SALE-Sale of goods-Agency-Agent's authority-Ratification-Secret commission to agent.] In an action against B. claiming damages for refusal to accept goods alleged to have been purchased, it appeared that the contracts for sale were made with one D. who had a desk in B's office, was allowed to use his stationery and the services of his stenographer and signed the contract in his name. The brokers who, for the vendors, procured the contracts from D. agreed to pay him, personally, half of their commission for efecting the sale.
B. when asked to pay for the goods repudiated the contracts on the ground that D. was not authorized to purchase.-Held, reversing the judgment of the Appellate Division (36 Ont. L.R. 522), Fitzpatrick C.J. dissenting, that as the half of the commission promised to D. would be a substantial amount; that as it was not proved that B. knew of it until after the contracts were signed; and as it was not shewn that D. had any expectation of such prfit from B. as would prevent the commission from interfering with his duty to the latter the offer of such payment to D. made the contracts for sale void and it was immaterial whether or not the vendors had knowledge of it.
POINT Co................ 2-Recovery of moneys paid-Evidence- Onus probandi-Estoppel by receipt.]- The appellant, having sold a property to one Arnold, purporting to act as agent for the respondent, received in part pay- SALE-continued.
ment a cheque for $1,300 of the Dominion
Trust Company of which Arnold was manager. The respondent, on the ground that the purchase was beyond the powers vesteyl in Arnold, resisted an action of the appellant for the enforcement of the agreement and sued the appellant, by counterclaim, for the reimbursement of the 81,300 so paid, alleging that this sum, which was borrowed by Arnold from the
Trust Company, was repaid by Arnold out of his moneys in the hands of Arnold for investments.
The trial judge and the Court of Appeal held, and it was not disputed, that Arnld, in entering into the purchase in the name of the respondent, exceeded his authority.-Held, Duff
J. dissenting, that the onus probandi as to the ownership of the moneys, was not on the respondent, and that, even if it was so, the receipt in the agreement of sale and the facts leading up thereto were sufficient proof that the money paid to the appellant was that of the respondent.
-Per Duff J. (dissenting).
Respondent can not repudiate Arnold as his agent for the purchase and at the same time treat him as such in connection with the advances.
The receipt in the agreement for sale could only constitute an estoppel in an action based upon the agreement and between the parties to it. On respondent lies the onus of showing that the moneys in question are his moneys; and the admission derived from the receipt in the agreement did not constitute a primd facie case sufficient to shift the burden of proof.
McKEE 286
3--Option-Condition precedent to payment-Preention offulfdment by purchaser
-Vendor excused from making title.] The respondent sold to appellant a mill site comprising 108 acres of timber limits.
At the time of the sale, the respondent was operating a temporary mill (the rmanent mi having been destroyed by fire) situated at the northern end of the site. The purchase money was $25,000 the agreement of sale providing that the appellant was to pay $10,000 cash and take possession of the mill site and limits, and that the balance of $15,000 was to be paid by the appellant as soon as the respondent had obtained title to the mill site from the Crown. Acting on expert advice, the appellant built a permanent mill at the southern end of the 108 acres, so that the portion at the north end, where the mill had formerly stood, was so wholly disconnected and so far away
SALE-continued.
from the mill that the Crown refused to regard it as a part of the mill site and the respondent was therefore unable to obtain a patent to 81 acres of the original 108 acres.-Held, Fitzpatrick C.J. and Idington J. dissenting, that the appellant was precluded by his conduct, from insisting upon the exact fulfilment of the condition that the respojadent should make title to the parcel of 81 acres, before requiring payment of the last instalment of $15,000.-Per Fitzpatrick C.J. and Idington J. dissenting. The respondent had no right to exact payment of the balance of the purchase money, as there was no provision in the agreement of sale obligmg the appellant to erect a mill at all, much less obliging him to erect one upon any particular part of the land sold.- Per Idington J. The respondent, to his knowledge, allowed the appellant to go on and build the mill without remonstrating or proposing a rescission of the agreement-Judgment of the Court of Appeal (31 D.L.R. 607; [1917] 1 W.W.R. 566), LumBERCo...................... --- Commission-Part payment of price -Receipt by agent-Parties.] ACHRAY...................... 5-Contract-Concealment of agency. 6- Real estate agent-Option.] Mi- -Sale by agent-Excess of authority- Rescission........ ............... SPECIFIC PERFORMANCES-Sale of land-Option-Condition-Estoppel.. 494 STATUTE-Construction-Appeal-Jurisdiction-Supreme Court Act, section 46- Future rights-Money payable to His Majesty.] The words "where rihts in future might be bound," contained in sub-section (b) of section 46 of the "Supreme Court Act," apply to each of the subjects mentioned in the first part as well as to those mentioned in the seeond part of said sub-section: Lariviere v. School Commissioners of Three Rivers (23 Can. S.C.R., 723), followed.-(Iding- 1 ton and Duff JJ. contra).
STATUTE-continued.
2-Appeal - Jurisdiction - "Supreme
Court Act," sections 39 and 46-Prohibition
-Future rights.] The words "where rights in future might be bound," contained in sub-section (b) of section 46 of the
"Supreme Court Act," apply to the whole sub-section: Olier v. John (55
Can. S.C.R. 41), followed.-Per Davies,
Idington, Duff and Anglin JJ. Section
39 of the "Supreme Court Act," giving an appeal to the Supreme Court in cases of prohibition, is limited and controlled by section 46 of the same Act: Desormeau v. The Village of Ste Thbrasel(43JCan.
S.C.R. 82), followed.-Per Fitzpatrick.
C.J. No appeal lies to the Supreme
Court of Canada from the judgment of a court of the Province of Quebec rendered upon an application for a writ of prohibition against proceeding with the hearing of a criminal charge: Gaynor and Green v.
The United States of America (36 Can.
S.C.R. 247), followed.
3-Application-" Interest Act"-Mortgage-Blended payments-Statement-Rate of interest-R.S.C. [1906] c. 120, s. 6.]
Section 6 of the "Interest Act" (R.S.C.
[1906] ch. 120) provides that "whenever any principal money or interest secured by mortgage on real estate is, by the same made on the sinking fund plan, or any plan under which the payments of principal money and interest are blended no interest whatever shall be the mortgage contains a statement showing the amount of such principal money and the rate of interest chargeable thereon calculated arly or half-yearly not in advance."ld,
Davies and
Idington JJ. (dissenting)
, that the provisions of this section are complied with if the facts stated in the mortgage shew the amount of the principal and the rate of interest calculated as required; a special statement, complete in itself, of suchlamount and rate is not essential.- Therefore, where the mortgagor covenants to pay the principal and interest in ten half-yearly payments, and to pay interest on the principal, or so much thereof as remains due, at the rate of ten per cent.
per annum and the same rate on any sum in arrear, the mortgagee is entitled to the interest.-Judgment of the Appellate
Division, 33 D.L.R. 792, ( [1917]
W.W.R. 18) affirming that at the trial
(32 D.L.R. 54, 10 West. W.R. 959),
STATUTE-continued.
4- Application-Yukon
Territory- Gold Commissioner-Mining recorder- Powers and authority-" Yukon Placer Mining Act," R.S.C. 1906, c. 64, as. 3, 4, 5 and 6, as amended by 7 & 8 Edw. VII., c. 77, s. 25.] Under the "Yukon Placer Mining Act," R.S.C. 1906, c. 64, as. 3, 4, 5 and 6, as amended by 7 & 8 Edw. VII., c. 77, e. 25, the Gold Commissioner had all the powers and authority of a mining recorder throughout the whole Territory, without any direction to that effect by the Commissioner of the Yukon Territory, since the Governor-in-Council had appointed only one Gold Commissioner for the Territory at the date of the grant; or such direction, if necessary, should be presumed to have been given.-The appeal from the judgment of the Exchequer Court of Canada (16 Ex. C.R. 81), was allowed.
v. KINo.... STATUTES-R.S.C. [1906] c. 48, as. 132, 133, 264 ("Customs Act").......... 2-R.S.C. [1906] c. 64 ss. 3-6 (" Yukon Placer Mining Act").............. 3-R.S.C. [1906] c. 120, as. 6 and 7 ("Interest Act")..............409, See 2, 3.
4--R.S.C., [19061 c 139 39, 46 ("Supreme Court Act")............ 5- R.S.C., [1906] c. 139 ("Supreme Court Act") s. 46................. 6-R.S.C., [19061 c. 143 ("Expropriation Act")........................ 7--(D) 7 & 8 Edo. VII. c. 77, s. 25 (" Yukon Placer Mining Act") ...... 8-R.S.O., [1914] c. 193, as. 47 and 48 ("Local Improvement Act")........ 9--R.S.O., [1914] c. 195, as. 5 and 6 ("Assessment Act")............... 10-R.S.O., [1914] c. 280, a. 10 (" Upper Canada College Incorporation Act").. 433 STATUTES-continued.
11-R.S.Q., [1909j Arts. 5790-5800 (Expropriation).......................
12-R.S.M. c. 35, ss. 77, 130 ("Companies Act").....................
See APPEAL 2.
13-R.S.B.C. [1911]
39, a. 102
("Companies Act")...............
14- (Sask.) 1 Geo. V, c. 9 ("Workmen's
Compensation Act")...............
See PRACTICE PROCEDURE 1.
15--(Sask.) 5 Geo. V. c. 9, s. 1 (Subdivision) ........................
SURETYSHIP-Surety-Sale of goods- Guarantee of payment-Repossession and use by vendor-Impairment of surety's rights.] C. sold a brick-making plant to a company, the contract providing that on default in payment of any portion of the price he could cancel the agreement and retake possession of the property. He afterwards sold them a brick press, for the price of which a note was given and payment guaranteed by H., the contract with H. providing that if the note was not paid C. could take possession of the press and sell it, applying the proceeds on the note. The company made default in payments on the7plant and on the note, and C. re-entered into possession of the property and~used the press in manufacturing bricks. In an action against H.
on his guarantee.-Held, affirming the judgment of the Appellate Division (35
Ont. L.R. 412), Duff J. dissenting, that
C., by electing to use the press instead of selling it to help pay the note, as provided by the contract, had so interfered with the right of H. to have the security of the machine that the latter was discharged from his liability as guarantor.- Per Duff J. H. was not discharged from liability, but C. should account to him for the value of the press, at the date on which he retook possession of it.
v. HoFFmAN.........
..........
2-Employee-Guarantee of payment of salary-Mitigation of damages.] C., by contract with a manufacturing company, was employed for five years and payment of his salary was guaranteed by a director.
SURETYSHIP-continued.
In three years thereafter the company went into liquidation and he was unemployed for the balance of the term. Shortly after the liquidation of the company he and an associate purchased most of its assets by the sale of which he made a profit of $11,000.
In an action on the guarantee for $9,000, salary for the two years of his engagement with the company. Held, affirming the judgment of the Appellate Division (38 Ont. L.R. 396, 33 D.L.R. 159) which reversed that at the trial (37 Ont. L.R. 488, 32 D.L.R. 451), that the action taken by C. which realized a profit exceeding the amount he is claiming arose out of his relations with his employers and the diminution of his loss thereby must be taken into account though he was under no obligation to take it. British Westinghouse Electric and Mfg. Co. v. Underground Electric Railways Co. ( [19121 A.C. 673) applied. TITLE TO LAND-Married woman - Separate property-Evidence.] v. MCNEIL.......... ...........
TRADE MARK-Infringement - Use - Selling marked goods-Covering trademark.] The Prest-o-Lite Co. manufacture tanks for storage of acetylene gas and are proprietors of the trade-mark "Prest-o- Lite" which is embossed upon each tank. The People's Gas Supply Co. manufacture acetylene gas and purchase said tanks, charge them with their own gas and sell or exchange them. On the tanks so sold is affixed a label covering said trade-mark which states that the tank is filled with gas manufactured by The People's Gas Supply Co.
This label is of paper affixed to the tank by shellac and can only be removed by scraping with a knife or other instrument. In an action by the Prest-o- Lite Co. for infringement of their trademark.--Held, Fitzpatrick C.J. and Duff J. dissenting, that such action must fail; that defendants did all that could reasonably be expected to prevent a prejudicial use of the trade-mark; and that they did not "use"
the trade-mark within the meaning of see. 19 of the "Trade-mark and Design Act."
GAs CO.................... TRAMWAY-Injury to passenger-Cause of accident.] CO. TRIAL-Libel-Jury trial-Admissibility of evidence - Damages.]
KNOTT-..........
WILL--Devise of Mortgage-Election- Maintenance.] W. by his will bequeathed real estate to a trustee the revenue therefrom, so far as necessary, to be a pplied to the support and maintenance of his son who was in poor health and afterwards became lunatic.
He also devised the sum of $12,000 directly to the son and to
St. Andrew's Church a mortgage he held on the church property which he had previously assigned to the said son. In an action by the Committee of the latter for a declaration of rights under the will:- Held, affirming the judgment of the Appeal
Division (44 N.B. Rep. 153) Fitzpatrick
C.J. dissenting, that the Committee must elect between taking the benefits under the will, the provision for maintenance as well as the money devised, and retaining the rights of the son under the mortgage.
-Per Fitzpatrick C.J. the case was not one for the application of the equitable doctrine of election.
The devise of the mortgage must be treated as a legacy to the church of the amount due thereon.
WILL-continued.
CHURCH.................. 2-Ambiguous devise-Interpretation- Extrinsic evidence.]
WORDS AND TERMS-"Coast".. 348 2- " Mortgage or charge" .......... 303 3- "Roadway" ...............
4--"Superstructure"............. 103 Sss 5--.Use..............
YUKON TERRITORY-Placer Mining -Gold Commissioner-Mining Recorder- Authority-R.S.C. c. 64, as. 3-6- 7 & 8, Edw. VII., c. 77, s. 25.......550
Cases cited
- Smith v. Vermillion Hills (49 Can. S.C.R. 563 2 A.C. 569
- A.C. 673 A.C. 673
- 2 W.W.R. 18 2 W.W.R. 18
- 2 W.W.R. 294 2 W.W.R. 294
- 1 A.C. 719 1 A.C. 719
- 1 W.W.R. 566 1 W.W.R. 566
Statutes and regulations cited
-
- section 77
- section 130
- sections 39
- 46
- section 46
- Section 39
- s. 46
- ss. 77
- 130
-
- section 1002
- s. 325
- s. 437
- section 437
- s. 264
-
- 7
- section 11
- 167
-
Unresolved citations
- section 46