Majority
for British Columbia, (1) reversing the judgment of the trial judge, Murphy J., and maintaining the respondent's, plaintiff's, action.
The appellant and one H. owned all the shares of a mining company. The appellant made a contract with the respondent by which he undertook to pay respondent a commission of $10,000 for the sale of the mining property. The respondent procured a purchaser.
At the appellant's suggestion, the respondent brought action against H. and obtained judgment for $10,000, which he could not enforce in New York, where H. resided. The respondent then sued the appellant for $10,000.
The trial judge dismissed the action but the Court of Appeal allowed the appeal and directed judgment to be entered for the plaintiff.
The appeal to the Supreme Court of Canada was dismissed.
appellant.
J. J. Taylor K.C. for the respondent.
ADMIRALTY LAW-Repairs-on ship- Arrest pending repairs-Work after arrest
-Lien-Priority. ] While shipwrights, under contract with the owner, were working on a ship she was arrested in an action by creditors and eventually sold.
The shipwrights were left in possession and, without any order from the court, completed the work and claimed payment in full from the proceeds of sale on the value of work done and materials supplied after as well as before the arrest.-Held, that the shipwrights having acted in good faith their claim in respect to the work done after the arrest so far as the selling value of the ship was thereby increased should be allowed in priority to that of the creditors.-Per Idington J. If it can be established that the creditors knew or should have known that the shipwrights had continued the work in good faith believing that they could share in the proceeds of sale for payment, the shipwrights and creditors should share in the fund pro rata. Failing to establish such knowledge the claim of the creditors should be restricted to the selling value of the ship at the date of the arrest and the shipwrights be paid out of the balance of the proceeds of sale.-Per Brodeur J.
The shipwrights have no priority in respect to the later work but should rank pari passu with the creditors on the whole fund.-Judgment of the Exchequer Court
(19 Ex. C.R. 259) varied.
DRY DOCKS CO.
LTD..........
AGENT
APPEAL-Jurisdiction-Title to land- Future rights-Timber limits-Valuation roll.] In an action to set aside a valuation roll, the appellants alleged that as to some of the properties assessed they owned neither the soil nor the right to cut timber, and as to the others, owning merely the right to cut timber, they complained that the corporation had undertaken to value the right to cut timber separately from the soil and to assess them as owners of such right.- APPEAL-concluded.
Held, Idington J. (dissenting)
, that there is jurisdiction in the Supreme Court of Canada to entertain the appeal. The right to cut timber is an immovable right and rights in future in respect thereto are involved.
COR- 2- Jurisdiction-Criminal law-Bail- Estreat of recognizance-Criminal matter.] The judgment of a provincial court of final resort on an application to set aside on order estreating a recognizance given by a person charged with a criminal offence for his appearance to stand trial is a judgment in a "criminal case" from which no appeal is given by the Criminal Code. Idington J. dissents.
3-Municipal Corporation -By-law - Validity- Residential Street -Garage Constitutional law-Construction-Appeal -Jurisdiction- (Que.)
1 Geo. V., 2nd secs., c. 60-(Que.) 3 Geo. V., c. 54-(Que.) 62 Vict., c. 58--"Charter of the City of Montreal," s.s. 299, 300, s.s. 44, 44a, 55, and 300c-"Ontario
Municipal Act," R.S.O., 1914, c. 192, s. 406, s.s. 10- C.C Acts, 406, 407, 1065, 1066...... 4-Jurisdiction-Consolidation of actions-Arts. 281 and 292 C.P.C ...... ASSESSMENT
TAXES-Fixed Valuation-School rates.] In the Town of Edmundston, N.B., the school rates are levied and collected by the school trustees and the general municipal taxes by the town officials.
By a contract, validated by Act of the legislature, between the town and the Fraser Companies, the school Trustees not being parties, the valuation of the companies, property for assessment purposes was fixed at $100,000. -Held, affirming the judgment of the Appeal Division (46 N.B. Rep. 506) that this limitation does not apply to the valuation of the property for levying school rates.
MADAWASKA................... ASSESSMENT AND TAXES-con.
2-Mineral lands - Income - Sinking and deepening oil or gas* wells-Expenditure-Capital account.] In operating oil or gas wells in Ontario the expenditure for sinking new, or deepening existing, wells is expenditure on capital account and cannot be deducted from earnings to arrive at the net income that may be assessed under the provisions of R.S.O.
[1914] ch. 195, sec. 40 (6).-Judgment of the Appellate Division (47 Ont. L.R. 1)
BILLS AND NOTES-Guarantee-Condition-Precedent or subsequent-Parol evidence.
MOCROSSAN...................
CARRIERS-Liability-Damages-Bill of
Lading-Cost price-Market value-Arts.
1073, 1074, 1675 C.C.] Where a bill of lading contains the following clause:
"The amount of loss or damage for which any carrier is liable shall be computed on the basis of the value of the goods at the time and place of shipment," the damages occasioned by the loss of a shipment of goods must be calculated at the market value of these goods at the time and place of shipment, and not at the cost price of the goods to the owner at the place where he bought them plus the charges for freight.-Judgment of the Court of King's Bench .(Q.R. 29 K.
B. 186) reversed.
Co. v. THE
LINEB. ......................
2-Passengers-Fares-Railways-Board
Pixin rates......................
3-Drunken passagers-Ejectment from tram............................
CASES
1-Allumettes de Drummondville, Limitde, v. Boivin (Q.R. 28 K.B. 486)
2-Bailey v. City of Victoria ([19191 3 W.W.R. 19) reversed............ 3- Bainton v. Hallam, Limited (45 Ont. L.R. 483) affirmed ........... 4-Barthe v. Alleyn-Sharples (Q.R. 56 S.C. 301) restored................. Breakey Corporation of Metgermette- Nord (Q.R. 29 K.B. 309) quashed part
6-Cardigan County Council, in re (59 J.P. 792) appl.................... 7--Cochrane v. Schetky (26 B.C. Rep. 257) affirmed.................. 8---Curley v. Latreille (Q.R. 28 K.B. 388) affirmed.................. 9- Cushman Motor Works of Canada v. Laing (15 Alta. L.R. 53) affirmed. 649 See 6.
10-Davidson v. Sharpe (12 Sask. L. R. 183) affirmed .................. 11- Desrosiers v. the King (18 Ex. C. R. 461) reversed............... 12-Dunn v. Dominion Atlantic Ry. Co. (53 N.S. Rep. 88) reversed...... 13-Faulkner v. Faulkner (46 Ont. L. R. 69) affirmed................... 14--Fraser Companies Ltd. v. Trustees of School District No. 1 of Madawaska
(46 N.B. Rep. 506) affirmed ........
15-Gauvreau v. Page (Q.R. K.B.
16--Godson v. Greer ([1920] 2 W.W.R.
217) affirmed.....................
17-Gold v. Stover ([1919] 3 W.W.R.
303) affirmed in part...............
See 4.
18- Grand Trunk Pac. Co. v. Dearborn
(58 Can. S.C.R. 315) fol............
19---Great North Westsrn Telegraph
Co. v. Tremblay ..................
20-Harvey v. Dominion Textile Co. (59
Can. S.C.R. 508) fol...............
21-Heichman v. National Trust Co.
(13 Sask. L.R. 22) affirmed........
22-Henderson v. Strang Ont.
23-International Typesetting Machine
Co. v. Foster ((1919]
2 W.W.R. 652)
24-Jukes v. Donald ([1920] 2 W.W.R.
209) affirmed.....................
25- Lavin v. Geffen (15 Alta. L.R.
59) affirmed......................
26-Montreal, City of, v. Morgan (Q.R. 29 K.B. 124) reversed...... 27-Montreal Cotton and Wool Waste Co. v. The Canada Steamship Lines (Q.R. 29 K.B. 186) reversed........ 28-Montreal Dry Docks and Ship Repairing Co.
Halifax Shipyards Ltd. Ex. C.R. 259) varied....... .359 29-McCrea v.
Napierville Junction Railway
(Q.R.
K.B. See 4.
30-McNichol v. Burns (15 Alta. L. R. 1) affirmed.................... 31-Natioal Mortgage Co. v. Ralston (59 Can. S.C.R. 219) fol .......... 32-Nolan v.
Emerson-Brantingham Implement Co.
Alta. L.R. 353) reversed......................... 33-Nozick v. Denny ([1919] 3 W.W. R. 366) reversed.................. 34--4Otiawa Electric Ry. Co. v. Township of Nepean ................... 35- Petropolis v. The King (53 N.S. Rep. 309) affirmed........342
36- Price Bros. and Co. and The Board of Commerce, in re............ 265 37-Rodgers v. Williams ([19201
W.W.R. 944) affirmed............. .664
38---Salt v. Town of Cardston (15 Alta.
L.R. 31) reversed................
39--Simpson v. Tasker-Simpson Grain
Co. ([1919] 3 W.W.R. 928) reversed.. 647
40--Standard Bank of Canada v. Mc- Crossan
([1920]
2 W. W. R.
41-St. Lawrence Bridge Co. v. Lewis 565
42-Surrey, Corporation of the District of, v. Caine ([1920]
2 W. W. R. 681
43-Theatre Amusement Co. v. Reid
Sask. L.R. 174) affirmed.......
44-Toronto, City of. v. Virgo ([1896] A.C.
88) ref.......................
45- Union Natural Gas Co. of Canada v. The Corporation of the Township of
Dover (47 Ont. L.R. 1) affirmed .....
46-Van Dyke and Co. v. Haines
(Q.R. 29 K.B. 460) affirmed........
47-Victoria, City of. v. Mackay (56 Can.
S.C.R. 524) fol....................
48-Wabash Railway Co. v. Follick
(45 Ont. L.R. 528) affirmed........
CASES-concluded.
49- Ward v. Henry (Q.R. 28 K.B. 50-Watt & Scott Ltd. v. City of Montreal (Q.R. 29 K.B. 338) reversed. . 51-Wellington Colliery Co. v. Pacific Coast Coal Mines ([1919] 3 W.W.R. 463) CIVIL CODE
Art. 6 (Preliminary Title) . 2- Arts. 406, 407
(Ownership) and 1065, 1066 (obligations) ............ 3- Arts. 1053 and 1054 (offences and quasi-offences)..................... 4-Arts. 1053,
(offences and quasi-offences); 1614 (Lease and Hire) and 2615 (Final provisions) ........ 5--Arts. 1073, 1074 (Obligations) and 1675 (Carriers)................... 6-Arts. 1152, 1162, 1164 (Obligations); 1496, 1526 (Sale); and 1644 (Lease and H ire)............................ 7-Arts. 1716 and 1727 (Mandate). 105 8-Arts. 2224 and 2227 (Interruption of prescription) ................... 1- Art. 117 (Summons) ......... 597
2-Arts. 281 (Peremption of suits) and
292 (Joinder of actions) ........
COMPANY-Payment for shares- Loan to shareholders-Action by shareholder.-Status.] A company, with a capital of $100,000, was formed to take over the business of J. B. H. & Co., in Toronto.
S., a merchant of Glasgow, Scot., subscribes for $51,000 worth of the stock, it being agreed, as evidenced by a by-law of' the company, that the money paid for it should be deposited with the firm of
S. & Son, Glasgow, aid used to finance the company,s purchases in Europe.
S. sent to Toronto his cheque for $51,000 and it was indorsed by the company and remitted to the Glasgow firm.
Some years after J. B. H. started a new business, and his wife, a shareholder in the company, brought an action, on behalf of all shareholders, to compel S.
to pay the $51,000 to the company, and for a declaration that S., who had been president of the company since its organization, had never qualified as a director and all the acts of the company were, therefore, illegal and void.-Held, that the plaintiff, a minority shareholder, could not maintain the action against the will of the majority after acquiescence in and benefit from the operations of the company and the agreement as to the disposition of the cheque for $51,000.- Held, also, Davies C. J. dubitante and
Duff J. expressing no opinion that the cheque for $51,000 accepted by the company as such constituted a valid payment by S. for his 510 shares and its remittance to the firm of S. & Son was not a loan by the company of the amount to S., a shareholder, prohibited by sec.
29 of the Companies Act.-Judgment of the Appellate Division (45 Ont. L.R.
215) reversing that at the trial (43 Ont.
L.R. 617)
CONSTITUTIONAL LAW-Succession duty-Situs of property-"Direct taxation within the province"-B. N.A. Act, 1867, s. 92, s.s. 2-4 Geo. V., c. 10 (Que.)- Art. 6 The Quebec Succession Duty
Act (4 Geo. V., c. 10) imposes succession
CONSTITUTIONAL LAW-continued. duties upon "all transmissions within the province, owing to the death of a person domiciled therein, of movable property locally situate outside the province at the time of such death."-Held that the statute is intra vires of the iegislative authority of the province over taxation, conferred by subsection 2 of section 92 of the B.N.A. Act, the succession duty imposed being "direct taxation within the province."-Judgment of the Court of King's
Bench reversed.
2 - Parliament- Order-in-Council - Newsprint-" Necessary of life"-Measures necessitated in real war-"War Measures Act, 1914"-"The Board of Commerce Act," 9 & 10 Geo. V., c. 37- "The Combines and Fair prices Act, 1919," 9 & 10 Geo. V., c. 45, 9 & 10 Geo. V., c. 63.] The appellant appeals from an order of the Board of Commerce of Canada dated 6th of February, 1920. The Board, after declaring newsprint to be "a necessary of life," by clause 1 prohibits the appellant from taking any price exceeding $80 per ton for newsprint, and declares that any price in excess of that sum "shall be deemed to include unfair profit;" by clause 2, it forbids the appellant accumulating and witholding from sale any quantity of newsprint beyond an amount reasonably required for the ordinary purposes of its business; and by clause 4, the appellant is required by the Board to furnish at certain times and at fixed prices defined quantities of newsprint to designated purchasers.-Held, Brodeur J. expressing no opinion, that clauses 1 and 2 of the order hadenot been made by the Board in the exercise of jurisdiction conferred on it by "The Combines and Fair Prices Act," as newsprint could not be deemed to be "a necessary of life." Ejusdem generis rule applied.-Per Brodeur J.- "The Combines and Fair Prices Act" is ultra vires of the Parliament of Canada. Held, also, that clause 4 of the order could not have been deemed necessary "by reason of the existence of real * * war
* * for the security, defence, peace, order and welfare of Canada," and that an order-in-council purporting to confer on the Paper Controller jurisdiction to make it therefore transcended the power vested in the Governor-in- Council by s. 6 of the "War Measures CONSTITUTIONAL LAW-continued.
Act, 1914."
Mignault J. (dissenting)
.- Per Idington J. The control of newsprint has to do neither with "trading exportation, importation, production and manufacture," nor with the "appropriation, control, forfeiture and disposition of property and of the use thereof," and is therefore not within the ambit of s. 6 of the "War Measures Act, 1914."
"Pulp and Paper Control"
was improperly reserved from the repeal, on December
20th,
1919, of orders-in-council passed under that statute.-Per
J.
While the statute 9 & 10 Geo. V., c. 63, purports to confirm certain orders-incouncil therein cited, it neither vests, nor authorizes to be vested, in the
Paper Controller for future exercise, powers wider than might be conferred under the "War Measures Act, 1914."
In re
3- Legislative powers of Parliament- Combines and Fair Prices Act, 9 & 10
Geo. V., c. 45, s.s. 18 and 22-Regulation of Trade and Commerce-Criminal law- Peace order and good government.] A case stated for the opinion of the Supreme
Court of Canada under sec. 32 of the
Board of Commerce Act should not submit abstract questions but should state the facts of some matter pending before the Board and submit questions of law or jurisdiction arising when considering same. In re Cardigan
County Council, (54 J.P. 792), appl.
By sec. 18 of The Combines and Fair
Prices Act, 1919, the Board of Commerce is empowered to inquire into and prohibit the making of unfair profits on the holding or disposition of necessaries of life, and practices with respedt to such holding or disposition calculated unfairly enhance the cost of such necessaries. The Board made an order restraining and prohibiting certain manufacturers of clothing from omitting or refusing to offer for sale in the city of Ottawa their commodities at prices not higher than are reasonable and just; offering the same for sale at prices higher than are reasonable and just; and marking for sale by retail said commodities at prices ascertained by the addition to cost of fifty per cent or more or made up of cost plus a gross profit of a percentage greater than by the order recognized as fair or a percentage indicated as unfair.-Held,
CONSTITUTIONAL LAW-concluded. per Davies C.J., Anglin and Mignault J.J., Idington, Duff and Brodeur J.J. contra that the Board had authority to make the order; that Parliament had power to confer the authority on the Board by its jurisdiction to make laws for."the regulation of Trade and Commerce" and for "the peace, order and good government of Canada" and possibly, except as to the power of the Board to inquire into trade matters, by its jurisdiction to legislate on "Criminal Law."
By sec. 38 of the Board of Commerce Act the Board is authorized to require that any order it issues shall be made a rule of the Exchequer Court or of any superior court of a province.- Held, per Davies C.J., Anglin and Mignault JJ., Idington, Duff and Brodeur JJ. expressing no opinion, that Parliament may, in passing legislation within its jurisdiction, impose duties upon any subjects
Dominion including officials of provincial courts and that the Board could validly exercise the power so conferred. In re THE FAm 1919.......... 4- Municipal Corporation- By-law - Validity-Residential Street - Garage- Constitutional law-Construction-Appeal -Jurisdiction-(Que.)
1 Geo. V., 2nd secs., c. 60--(Que.) 3 Geo. V., c. 54- (Que.) 62 Vict., c. 58-"Charter of the City of Montreal," s.s. 299, 300, s.s. 44, 44a, 55, and 300c-"Ontario Municipal Act," R.S.O., 1914, c. 192, s. 406, s.s. 10-. Arts. 406, 407, 1065, 1066 C.C. 393 CRIMINAL LAW - Appeal - Jurisdiction-Bail-Estreat of recognizance- Criminal matter................... DEDICATION-Highway-Intention - Acceptance-Public user ........... 2- Highways- User- Prescription - "Chemin de tolerance"-Municipal road- Constitutional law-"Municipal and Road Act of Lower Canada," (C.) 1855, 18 Vict., c. 100, s. 41, 8 and 9-Arts. 749 and 750, Municipal Code ....... See 1.
CREDITOR-Agree- - Rescission - Fraud.
SCHETKY.......................
2--Chose in action-Guarantee-Assignment of d&bt-Notice to surety, but not to primary debtor-Set-off.
EVIDENCE-Partnership-Claim of surviving partner-Onus probandi.
v. Co .....
2-Trespas-Verbal consent by one now deceased.
.......
HIGHWAYS-Dedication- User-Prescription-"Chemin de tolerance"-Municipal road-Constitutional law-"Municipal and Road Act of Lower Canada,"
(C.)1855, Vict., s. 41, s.s. 8 and
9-Arts. 749 and 750, Municipal Code.]
The appellant dug a well and laid a water pipe on a certain road and the respondent took against him an action negatoire de servitude, alleging ownership in the land.
The appellant's plea was that the road had been a public highway for over forty years and thus became the property of the corporation either by dedication or by prescription of thirty years; he also invoked the prescription of ten years enacted by the statute 18 Vict. c. 100 and he further alleged that he had obtained the permission of the Municipal
Council.-Held, that there had been no dedication, as the existence of the necessary animus dedicandi on the part of the respondent or his predecessors in title has not been established, and that the prescription of thirty years could not be invoked as the possession of the public as owner was neither exclusive nor unequivocal.-Semble, per Anglin,
J., that, under the law of Quebec, a highway may be -created by dedication.
Brodeur
J., contra and Mignault J dubitante.- Per Anglin, Brodeur and iMignault JJ.
The sub-sections 8 and 9 of 18 Vict., c.
100, s. 41, are applicable only to roads which have been in existence and in public use for ten years before the first of
July, 1855.
Harvey v. The Dominion
Textile Co. (59 Can. S.C.R. 508) followed.-Per Anglin, Brodeur and Mignault JJ. Even if the road was a chemin de tolerance subject to articles 749 and
750 of the former municipal code, the
HIGHWAYS-concluded.
ownership of the land still remained in the respondent and the appellant had no right to do the works complained of.- Judgment of the Court of King's Bench (Q.R. 27 K.B. 490) affirmed. 2-Dedication-Intention-Acceptance- Public user......
..............
3- Municipal corporation - Negligence- Non-repairs-Municipal electric light system-Construction-"The Municipal Ordinance, (N.W.T.),
JURISDICTION
LANDLORD AND TENANT-Goods subject to lien-note-Distress for rent-Refusal to deliver to lien-holder--Conversion- Damages-"Act respecting Distress for Rent and Extra Judicial Seizure," R.S., Sask. (1909) c. 51, S. 4-"An Act respecting Conditional Sales of Goods," R.S. Sask.
1909), c. 145.] The appellant held an unpaid vendor's lien on certain chattel property in a theatre occupied by F. as tenant of the respondent R. The lien was invalid as against execution creditors of F. because of a defect in the affidavit of bona fides. These goods were first destrained under a distress warrant, issued out of the Police Magistrate's Court, to satisfy claims for wages. Later on the same day, the respondent R. issued a distress warrant for rent to the respondent D., who seized the same chattels.
A few days later and before the first seizure was abandoned appellant asked the respondent b. to deliver up possession of the goods, which demand was refused.
After the police seizure was abandoned, the appellant took this action in damages for conversion of its property, alleging that if it had been able to obtain possession prior to execution the defect in its lien would have been cured.-Held, Duff J. dissenting, that under the circumstances, the refusal of D. to surrender the goods did not amount to conversion.-Per
Brodeur LANDLORD AND TENNANT-con.
and Mignault JJ. The evidence does not establish that the respondents were in a position to give possession of the goods at the time the only demand for possession was made by the appellant.- Judgment of the Court of Appeal (12
Sask. L.R. 174) affirmed, Duff J. dissenting.
THEATRE
REID.........................
2-Fire- Liability- Fault-Presumption-Art. 1629 C.C.
HENRY 645
LIEN-Distress for rent-Lien on goods- Refusal to deliver-Conversion-Damages
........
............
2- Shipwright-Repairs on ship-Arrest pending- Priority..................
MARRIAGE - Contract - Ante-nuptial representations-Administrators.]
H., desiring to marry S.'s daughter, went with S. to H.'s father, who verbally told them he was giving to H. some land and certain chattels.
S. then consented to the marriage, which took place afterwards. H. and his wife resided on the land and brought there some of the chattels but after H.'s death, his father removed them.-Held, that H.'s administrators could enforce the transfer of the land and the recovery of the chattels against H.'s father.-Held, also, that
H.'s father was bound to make good his representations on the faith of which the marriage took place.
Mignault J. dubitante.-Per Mignault
J.
antenuptial promise by the father was a contract of gift and the subsequent marriage was a valuable consideration to support it.-Judgment of the Court of
Appeal (13 Sask. L.R. 22; [1920] 1 W.W.R.
220) affirmed.
MASTER AND SERVANT - Negligence- Use of motor car-Disobedience- "Joy ride"-Act in course of employment-Master's liability-Civil law cases- English decisions-Arts. 1053 and 1054
C.C.-Art. 1384 C.N.-(Que.) 3 Geo.
V., c. 19, s. 3..................
See 1.
MUNICIPAL CORPORATION-Highway - Dedication - Intention - Acceptance-Public user-Registration-Pending application-Priorities-By-law---Publication-"Municipal Act,"
*
*
* shall, before coming into effect, be published in the Gazette *
*
* "-Held, that this provision implies the publication of the by-law in extenso. City of Victoria v. Mackay (56 Can. S.C.R. 524) followed.-Held, also, that, under the circumstances of this case, the necessary conditions to establish a public highway by dedication were not satisfied.-Per Duff, Anglin and Mignault JJ.-In order that a public highway may be established by dedication, two concurrent conditions must be satisfied; there must be on the part of the owner the actual intention to dedicate; and it must appear that the intention was carried out by the way being thrown open to the public and that the way has been accepted by the public.-Per Duff, Anglin and Mignault JJ. Such acceptance by the public can only be established by proof of public user, or per Duff and Anglin JJ. by the act of some public authority done in the execution statutory powers.- Per Duff, Anglin and Mignault JJ. The Registrar having declined to act upon the city respondent's application for registration of its title and no steps having been taken by it to appeal from this refusal under s. of the "Land Registry Act," it is not now open to the respondent to allege that the appellant's mortgage, though registered under such application, must be taken subject to a pending registration.
National Mortgage Co. v. Rolston Can.
S.C.R. 219) followed.-Per The deed of sale by the owner to the city respondent, passed for the purpose of constituting the land sold part of a highway, being an abandonment of the property to the public use, and the payment by the respondent purchase price being an acceptance by the public or some one in authority to represent it, constitute a dedication of the land for the use of the public as a highway.-Judgment of the Court of MUNICIPAL CORPORATION-con.
Appeal ([1919] 3 W.W.R. 19) reversed,
CIrY .........
2 - By-law - Validity - Residential
Street-Garage--Constitutional law-Construction-Appeal-Jurisdiction- (Que.)
1 Geo. V., 2nd sess., c. 60-(Que.) 3 Geo.
44, 44a, 55, and 300c-"Ontario
Municipal -Act," R.S.O., 1914, c. 192, s. *406, s.s. 10-Arts. 406, 407, 1065,
1066 C.C.] Subsection 44a of section 300 of the "Charter of the City of Montreal"
empowers the municipal corporation "to regulate the kind of buildings that may be erected on certain streets
*
*
*."
By-law No. 570, passed by the appellant, enacts that "the following streets are reserved exclusively for residential purposes" and that "every person offending against the above provision shall be liable to a fine
* * * and in default of immediate payment, imprisonment.
*
Held,
Idington and Duff JJ. (dissenting)
, that such by-law is valid and effectual, as a regulation passed under s.s. 44a, to prevent the construction, on the streets named in the by-law, of any buildings other than residential ones and to prohibit the erection there of a public garage.
Per Anglin, Brodeur and Mignault JJ.- The recovery of the penalties prescribed in the by-law was not meant to be the sole remedy available for its enforcement;
and the demand for the demolition or undoing of anything done in breach of the obligation which it imposes falls within the purview of art. 1066 C.C.
Idington J. contra.-Per Anglin J.-Power to regulate does not imply, generally, power to prohibit (City of Toronto v.
Virgo, [1896] A.C. 88); but it necessarily implies power to restrain 'the doing of that which is contrary to the regulation authorized, and, in that sense and to that extent, involves the power to prohibit.-Per Anglin, Brodeur and Mignault JJ.-There is jurisdiction in the
Supreme Court of Canada to entertain this appeal, as the matter in controversy affects the future rights of the respondent as to the use and employment of his property. Idington J. dubitante. Judgment of the Court of King's Bench,
(Q.R. 29 K.B. 124) reversed, Idington and Duff JJ. dissenting. CrrY or
MUNICIPAL CORPORATION-con. - Highways - Nonrepair-Municipal electric light system- Construction-"The Municipal Ordinance, (N.W.T.),
Cons. Ord., (1905) c. 70, s. 87-Alta..S. (1907), c. 37, s. 20.] The appellant was injured by his horse running into an unguarded guy wire supporting an electric light pole erected by the municipality respondent within the road allowance.-Held, Brodeur J. dissenting, that the accident was not a case of non-repair within section 87 of "The Municipal Ordinance," but was a case of failure to construct a public work "so as not to endanger the public health or safety" within section 20 of chapter 37 of the Alberta statutes of 1907, and therefore, the appellant's claim was not barred by the limitation of six months provided by section 87. Judgment of the Appellate Division (15 Alta. L.R. 31) reversed, Brodeur J. dissenting 4- Negligence-Sewers- Heavy rain- Vis Major-Liability-Appeal-Jurisdiction--Consolidation of actions-"Charter of the City of Montreal," 62 Vict., c. 58, s.s. 42, s.s. 94, 96 and 97 of s. 300-Arts. 1614, 2615 C.C.-Arts. 281 and 292 t.P.C.-Arts. 1382 and 1384 C.N.........................
5-Municipal law-Right to "resume"- Injunction-"The Municipal Act" (B.C.) S. 1914, c. 52, s. 325.
or CAINE.. 654 NEGLIGENCE-Master and servant- Use of motor car-Disobedience-"Joy 'ride"-Act in course of employment- Master's liability-Civil law cases--English decisions-Arts. 1053 and 1054 C.C.- Art. 1384 C. N.-(Que.) 3 Geo. V., c. 19, s. 3.] The respondent's chauffeur, while using his master's automobile for purposes of his own in violation of instructions and driving the car at excessive speed, killed the appellant's son. The negligence of the chauffeur was admitted; there was no evidence of want of care on the respondent's part in engaging him and some evidence was adduced that the master had exercised reasonable supervision.-Held, Brodeur J. dissenting, that the master was not liable, as, at the NEGLIGENCE-continued.
time of the accident, the chauffeur was not "in the performance of the work for which he was employed."
(Art. 1054
C.C.).-Per Anglin, Brodeur and Mignault JJ.-English decisions can be of value in Quebec cases involving questions of civil law only when it has been first ascertained that in the law of England and that of Quebec the principles upon which the particular subject matter is dealt with are the same and are given the like scope in their application, and even then not as binding authorities but rather as rationes scriptae.-Judgment of the
Court of King's Bench
(Q.R. 28 K.B.
affirmed, Brodeur J. (dissenting)
388) .
CURLEY v. LATREILLE..............
2-Railway company-Evidence-Findings of jury-Statutory precaution.] F.
was in charge of a wrecking train working at a crossing where two railway lines intersect and on receiving a signal that a train was approaching from the east removed his cars from the crossing.
He then went to a signal station a few feet away and on returning was struck by the oncoming train.
He had a clear view of the track to the east before he started to cross and was nearly over when struck.
He could not account for his failure to see the train coming.
Seven hundred feet east of the crossing was a semaphore and the train stopped several hundred feet east of that and came on without stopping again.
On the trial of an action against the railway company the jury negatived contributory found the company negligent in not stopping at a reasonable distance east of the distant signal (semaphore) and proceeding with sufficient caution approaching wreck zone which was observed.-Held, affirming the judgment of the Appellate Division (45 Ont.'
L.R. 528) that the jury were justified in finding that the failure to moderate the speed of the train when approaching the crossing was negligence and to infer from the evidence that had the train been brought to a stop as the Railway Act requires the plaintiff would have had a better opportunity to escape injury.
3- Municipal corporation-Sewers- Heavy rain-Vi
Major -Liability - Appeal-Jurisdiction - Consolidation of
NEGLIGENCE-continued.
actions-"Charter of the City of Montreal," 62 Vict., c. 58, s. 42, 8.8. 94, 96 and 97 of s. 300-Arts. 1053, 1054, 1614, 2615 C.C.-Arts. 281 and 292 C.P.C.-Arts. 1382 and 1384 C. N.J The appellant took two actions, one for $1,178.83 and another for $3,013.23, against the respondent for damages caused by two floodings of its cellar through the insufficiency of the civic sewer to carry off the drainage and surface waters.
These two actions were consolidated for purposes of trial; they were both maintained by the judgment of the trial judge, and both dismissed by the Court of King's Bench, the first by a majority judgment second unanimously.
The appellant took one appeal to the Supreme Court, and the respondent moved to quash the appeal for want of jurisdiction as to the first action.-Held, that there was no jurisdiction in the Supreme Court of Canada to entertain an appeal in the first action, which had not lost its identity through the consolidation of the two actions. On the merits of the second action:-Per Idingtion, Duff, Anglin and Mignault JJ.- The respondent should have provided the instalment of "suitable automatic safety valves at connection in sewerage" as enacted by its charter.-Per Idington, Duff, Anglin and Mignault JJ.-Under the circumstances of this case, the rainstorm did not constitute vis major, as, though extraordinary but not unprecedented, it was not of such violence that it could not reasonably have been anticipated.
Brodeur J. contra.-Per Iding-: ton J. and Duff J. The primary duty rested on respondent, which was in control of the works it had undertaken to construct, and the responsibility devolved on it to see that they were so efficient in all details as not to injure any one else either in relation to person or to property. -Per
Anglin and Mignault JJ.-The respondent's liability arises from the fact that the appellant's damage was caused by a thing which the respondent had under its care, i.e., the sewer, and that it has failed to prove that it was unable to prevent the act which has caused the damage, such act being the water from the sewer backing into the appellant's cellar. Quebec Railway, Light, Heat & Power Co. v. Vandry (36 Times L.R. 296) followed.
WArr & ScoTT Lr.
CrrY .... .523 NEGLIGENCE-concluded.
4--Municipal corporation-Highways- Non-repaire--Municipal electric light system - Construction -"The
Municipal
Ordinance, (N.W.T.); Cons. Ord., (1905)
c. 70, s. 87-Alta. S. (1907);
c. 37, s. 20.........................
5-Jury trial -Verdict - Inadequacy iisdirection-Interference with an appeal.
BURNS...............
PARTNERSHIP-Oral agreement by one partner to buy other's interest-Land- Statute of frauds-"The Partnership Ordinance," (N.W.T.) Cons. Ord. [1905] c.
94, s. 24.
v. GEFFEN....... .660
PRACTICE AND PROCEDURE-Common law action-Factum-Incomplete citation' Fees.....................
PRINCIPAL
AGENT- Undisclosed principal-Judgment against agent- Action against principal-Civil law cases- English decisions-Arts. 716, 727 C.C.]
Under the Quebec civil law, the recovery of a judgment against the agent, who had contracted in his own name, will not, as long as it remains unsatisfied, affect the creditor's right to pursue the principal afterwards discovered.
Idington J. (dissenting)
.-Per Anglin, Brodeur and Mignault JJ.-English decisions should not be cited as authorities in cases from the
Province of Quebec which do not depend upon doctrines derived from English law.-Judgment of the Exchequer Court of Canada (18 Ex. C.R. 461) reversed,
Idington J. (dissenting)
.,
2-Sale of ship-Commission-Gon- GREER.....................
3-Sale of property - Commission - Judgment against other-Res judicata.
WILLIAMS...............
RAILWAY
Railway Board
Electric Ry. Co.-Tariff of rates-Agreement with City-Britannia extension- Separate rates-Powers of Board.]
establishing a tariff of rates for carriage of passengers on the cars of the Ottawa
RAILWAY-continued.
Electric Ry. Co. the Board of Railway Commissioners should consider the portion of the line from Holland Avenue to Britannia separately from the rest and fix the rates therefor without regard to the conditions of carriage on the remainder of the system.-Held, per Duff Brodeur and Mignault JJ. Davies C.J. contra, that under its agreement with the City of Ottawa, made in 1893, establishing five cents as the maximum of fares for the carriage of passengers within the city limits, the right of the company to charge any rate up to that maximum was not, prior to the enactment of sec. 325 (5) of the Railway Act of 1919, subject to the control of the Board.-Per Anglin J. The power conferred on the company by earlier provincial legislation to fix its rates of fare was continued by the Dominion Acts of 1892 and 1894 and thus became as to the City of Ottawa of 1893 the subject of "a Special Act" which, under sec. 3 of the Railway Act of 1906 overrides the general jurisdiction of the Railway Board over fares and tolls. Ry. Co. NEPEAN....................... 2-Drunken passenger-Ejectment from train-Suitable place-Findings of Jury.] The right of a conductor on a railway train to eject a passenger for disorderly conduct is not absolute but must be exercised with proper precaution avoid putting the passenger in danger. A drunken traveller was put off a train at a closed and unlighted station at one o'clock in the morning and some hours later his body was found on the track near the station in a condition indicating that he had been killed by a passing train. In an action by the administrator of his estate against the railway company. Held, Davies CJ dissenting, that the evidence justified the jury in finding that deceased when ejected was not in a state to take care of himself and that putting him off in that condition at such a place and at such an hour was negligence on the part of the company which led to his death.-Judgment appealed from (53 N. S. Rep. 88) reversed. DUnN 3-Negligence - Railway company - Evidence - Findings of Jury - Statutory precaution........................ RAILWAYS-concluded.
4- Station - Truck the platform-Accident-Arts. 1053, 1056.
C.C. McCREA
RY. Co......................
SALE-Action for rescission-Judgment- Election-New Action on personal covenant.] An action has been instituted in
British Columbia by a vendor, the appellant, against a purchaser, respondent, a resident of Ontario, for the balance of the purchase price and for the cancellation of the agreement for sale of land situated in the Province of British
Columbia, for default in payment. Judgment was given for the plaintiff on both grounds. The judgment was not satitfled and a second action was instituted in
Saskatchewan against the respondent, then resident there, which was based principally on the respondent's personal obligation on his covenant for payment in the agreement of sale.-Held, Idington J, dissenting, that the obtaining of the judgment in British Columbia amounted to an election on the part of the vendor for cancellation of the agreement of sale and that he was no longer at liberty to sue upon the covenant.-Judgment of the
Appeal Court (12 Sask. L.R. 183) affirmed,
Idington J. (dissenting)
. DAvmsoN v.
SHARPE.................
........
2- Damages-Sale of goods-Sale by sample-Breach of warranty-Measure of damages.] Where on a sale according to sample the goods delivered are of a quality inferior to that warranted the purchaser is entitled to recover as damages the difference between the market value of the goods received and of those which should have been supplied.
The re-sale by the purchaser at a price less than this difference does not debar him from recovering the full amount; it merely affords some evidence of market value.- Per Idington J. In this case the price at which the wool was re-sold represented its market value.-Judgment
Appellate Division (45 Ont. L.R. 483)
Lim- 3-Rescission - Defective goods-Redhibitory action-Part of the goods sold- Tender-Arts. 1152, 1162, 1164,
1496,
1526, 1644 C.C.] The respondent brought an action for rescission of the sale of
1214 cases of matches alleged to have
SALE-continued.
been defective, out of a total sale of 5,115 cases; and he declared, in his statement of claim, that he was ready to deliver up the defective cases on being recouped their cost. During the trial, the respondent sold 57 cases and the trial court ordered the rescission of the sale as to the remaining 1,157 cases.- Held, that the action was redhibitory in character, and that such an action is maintainable as to any part of the goods sold which is proved to have been defective.-Held, also, that, notwithstanding the sale of part of the cases pending the action, and the consequent inability to return them, the respondent can still recover the price of the remaining 1,157 cases, which he is ready to return to the appellant upon the reimbursement of the price of sale.-Judgment of the Court of King's Bench (Q.R. 28 K.B. 486) affirmed. 4--Option-Time limit-Damages- Tender-Half-interest.] G. gave S. an option to purchase certain land. G. however, on payment of $300, could withdraw the option and sell the property but without any advertisement or the services of an agent.
S. could exercise his option before the 1st of March, 1917, and would then have to pay half of the purchase price. Before expiry of the time limit, G. advised S. that he had sold the property. Later on, S., having satisfied himself that the sale had been effected through an agent, filed a caveat and brought an action in damages.- Held, affirming the judgment of the Appellate Division, that S. had the right to claim immediately the damages suffered by him ou account of the breach of the contract of option by G., without being obliged to make a tender to G.. before the expiry of the time limit, of the amount payable in cash on account of the purchase price.-Held, also, reversing the judgment of the Appellate Division, that
S., although he had agreed to assign to one M. a one-half interest in the option, was entitled to recover not only one-half, but the entire damages, the apportionment settlement of account between S. and M.-Judgment of the Appellate Division ([1919]
3 W. W. R. 503), affirmed in part.
SALE-concluded.
5-Sale of land-Vendor's lien- Unpaid balance. NozIcK v. DENNY..........
6- Farm machinery - Conditions - Misrepresentation- Use machine- 7-Farm machinery-Statutory warranties-Breach--Quantum of damages-Return of goods.
SHIPPING
8-Arrest pending repairs-Subsequent work-Lien-Priority
..............
STATUTES
1- (B.N.A. Act [1867] s. 92.....
2-(C.) [1858] 18 Vict., c. 100 ("Municipal and Road Act of Lower Canada") f81
3-(D.)
(War
Measures
A ct")........................
4- (D.) 9 & 10 Geo. V., c. 37 ("The
Board oj Commerce Act") ...........
5- (D.) 9 & 10 Geo. V., c. 45 ("The
Combines and Fair Prices Act") .....
6-(D.) 9 & 10 Geo. V., c. 45 ("The
Combines and Fair Prices Act") .....
9 & V., 63 ......
8-R.S.O.,
("Ontario
Municipal Act")..................
9- R.S.Q.,
Arts. 7321,
7345,
("Workmen's
Compensation
Act").......................
10-R.S.Q., Art. 7328 ("Workmen's Compensation Act") ..........
STATUTES-concluded.
15- (Que.) 3 Geo. V., c. 54 ("Charter of the City of Montreal") ........... 16-(Que.) 4 Geo. V., c. 10 ("Succession D uty A ct")....................... 17-(Que.) 8 Geo. V., c. 71 ("Workmen's Compensation Act") .......... (Alta.) 37 .......... (Alta.) 3...........
20-R.S.B.C., c. 127 ("Land Registry Act")
. .......... 21-R.S.B.C., [1911] c. 170 ("Municipal A ct")....... ................ 22-R.S., Sask., [1909]
c. 51 ("Act respecting Distress for Rent and Extra Judicial Seizure") ................. 23-R.S., Sask., [1909] c. 145 ("Act respecting Conditional Sales of goods") 92 24-(N.W.T.) Cons. ord., [1905], c. 43 ("Bills of Sales")................ 25-(N.W.T.) Cons. ord. [1905] 44 ("Ordinance respecting Hire Receipts and Condition of Sales of goods") 416 26- (N.W.T.) Cons. ord., 11905] c. 70 ("The Municipal Ordinance") ...... Constitutional law-Situs of property-"Direct taxation within the province" ...............
VENDOR AND
PURCHASER - Debenture - Lien - Registration - Priority--"Bills of Sale Ordinance, " N.
W.T. Ord. Cons. (1915) c. 43-"Ordinance respecting Hire Receipts and Conditional
Sales of Goods,"
N.W.T. Ord. Cons.
c. 44-Alta. s. (1916) c. 3, s. 8.] A manufacturing company, under a conditional sale agreement, sold in 1913 certain machinery, and in 1915 the purchaser gave to F. as security for an advance of money a "first mortgage debenture"
thereon which was declared to be "a specific charge" as regards the "fixed assets" of the purchaser but was never registered. In
.1916, legislature amended the law respecting conditional sales and it was then provided that, unless a renewal statement of the amount due was registered every two years, the condition of the agreement
"should cease to have effect."
The vendor did not comply with the provision.-Per
Davies C.J., Idington and Brodeur JJ.- By the failure of the vendor to renew the registration of its lien agreement, the priority of the lien over F.'s debenture was lost.-Per Duff and
Mignault
(dissenting)-F.'s debenture is a mortgage within the meaning of "The Bills of
Sale Ordinance" and, not having been registered, is void against the vendor who is a creditor of the purchaser. Grand
Trunk Paciflc Railway Co. v. Dearborn
(58 Can. S.C.R. 315), followed.-Judgment of the Appellate Division (1919)
2 W.W.R. 652)
Duff and
Mignault JJ. (dissenting)
.
Co. 461
W I L L-Testamentary capacity-A solicitor prepared a will as instructed .by the testator who was fully competent when giving the instructions but when the will so drawn was presented for execution he was not in a condition to sign his name and refused to execute it as a marksman. Three days later, or before he died, it was again presented and read over to him, clause by clause, the solicitor, as each was read, asking if he understood it and he indicating that he did. The will was then executed by the testator making his mark, the solicitor guiding his hand as he could
WILL-concluded.
not see.
In an action to set it aside- Held, affirming the judgment of the Appellate Division (46 Ont. L.R. 69) that the evidence of the solicitor and of the physician in attendance established the mental capacity of the testator to follow the reading of the will and to realize that his instructions had been carried out. WORDS AND PHRASES-"Average remuneration".................. 565 "Chemin de toldrance"............ "Class"...................... 565 "Direct taxation within the Province" "Joy ride".......
............. "Judicial demand".............. 597 "Necessary of life".............. WORKMEN'S COMPENSATION ACT - Construction - French Act - "Class" -Method of computing "average remuneration"- Hypothetical earnings-Practice and procedure-Common law action- Factum-Incomplete Citation-Fees-R.S. Art. 7328.-(Que.) 8 V., s. 4.] The respondent had been in the appellant company's employment from the 5th of January, 1918. to the 1st of April, 1918, as a machinist helper at 32) cents an hour and from the first to the 19th of April,
1918, as an "operator" munitions, work being paid 15c. per shell, a somewhat higher rate of pay. During these periods the respondent's earnings amounted to $295.60. On the 19th of April, 1918, he was injured. He is debarred from recovery under the "Workmen's Compensation Act" if his yearly remuneration, calculated as contemplated by the statute, exceeded $1,200.
Article 7328
R.S.Q. provides that "in the case of workmen employed less than twelve months before the accident, such wages shall be the actual remuneration which they have received since they were employed in the business, plus the average remuneration received by workmen of the same class during the ACT.-continued.
time necessary to complete the twelve months."
The trial judge found the respondent entitled to a rent based on an annual remuneration of $960; and the Court of King's Bench, though finding the respondent not entitled to relief under the statute, awarded him
$1,825 as damages at common law.- Held, that an action brought under the
"Workmen's
Compensation Act"
conducted to judgment as such cannot be converted on appeal into an action for damages under the common law.
Per Anglin,
Brodeur and
Mignault
JJ.
The legislature, in adopting
1969 as part of the law of Quebec the
French Act upon workmen's compensation as enacted in 1898, may well be taken to have intended that the same construction should be placed upon article 7328 R.S.Q. as had been sanctioned in France by the Cour de Cassation
1906.-Per
Brodeur and
Mignault JJ. The "class" intended by the statute is that in which the injured man was first employed.-Per Anglin,
Brodeur and Mignault JJ. When there are other workmen of the same class as the injured man in the establishment to which he belonged, it is the average earnings of those workmen on which his complementary hypothetical remueration should be computed; and it is only where there are not such workmen that the average earnings of outside workmen should be resorted to.-Per
Anglin and Mignault JJ. In order to ascertain the "average remuneration"
of the injured man, evidence must be adduced (and the trial judge's findings on these points are entitled to the greatest weight) 1st, of the period during which the injured man was employed; 2nd, of the workmen doing the same class of work in the establishment during that period irrespective of their salary; 3rd, of the respective periods of employment of each of such workmen (per Anglin J.
making deduction from the number of days comprised therein for loss of time which is exceptional and involuntary, whether ascribable to a cause personal to the employee or to non-operation of the establishment); 4th, of the total amount of the earnings of each of such workmen during the period.
By adding together the earnings of all these workmen and dividing the total by the sum of the number of days included in their respect- WORKMEN'S COMPENSATION ACT.-concluded.
ive terms of employment added together, the average daily wage of the workmei during the period in question will be ascertained.
If the quotient thus obtained be multiplied by 261 (the number of days comprised between the 19th April, 1917 and the 5th of January, 1918) the product will be the average total earnings during that period of a workman of the category to which the injured man belonged; and this average added to the sum of $295.60 earned by the injured man during his actual employment will be the basic annual remuneration on which his right to recover will depend and his annual rent must be computed.- Per Duff J. (dissenting).
The manner of computing compensation is as follows:the average of aggregate earnings employees of the class to which the injured man belonged at the time of the accident for each week during the statutory period preceding the accident should be taken and these averages averaged; and there is sufficient proof that upon this basis, the respondent is not entitled to relief under the statute.- Per Anglin, Brodeur and Mignault JJ. Counsel for the respondent in no event will be entitled to his costs of factum, because in transcribing a passage from an author he had omitted a material part of the same passage which was against his pretentions. Co. 565 2-Petition for authorization to sue- Part of the action-"Judicial demand"- Interruption of prescription-Telegraph operator-R.S.Q., 1909, 's.s. 7321, 7345, 7347-Arts. 224, 2227 C.C.-Art. 117 C.P.C.-Arts. 2111, 2244, 2245 C.N.] Under the Quebec
"Workmen's Compensation Act," the petition for authorization to sue does not form part of the action and is not a "judicial demand" within the purview of Art. 2224 C.C.; and therefore this petition does not interrupt prescription.
Idington J. dubitante and Duff J. contra.-Per Idington, J. A lineman employed by a telegraph company is entitled to claim relief under the Quebec
"Workmen's Compensation Act." Judgment of the Court of King's Bench reversed, Duff J. dissenting.
TELE- 3-Industrial company-Pulp and paper company-R.S.4. (1909) Art. 7321. Co. v. HAINs................
Cases cited
- 3 W.W.R. 366 3 W.W.R. 366
- 3 W.W.R. 928 3 W.W.R. 928
- 3 W.W.R. 463 3 W.W.R. 463
- 3 W.W.R. 19 3 W.W.R. 19
- A.C. 88 A.C. 88