Majority
N2 PANY (PLAINTIFF)................'
To.2. JAMES RICHARDSON,
EXECUTOR
OF GEORGE T.
RICHARDSON
DE- RESPONDENT. CEASED (DEFENDANT) .............
APPEAL FROM THE APPELLATE
DIVISION OF THE SUPREME
COURT OF ONTARIO.
In a letter sent to R. requesting him to take stock in a newly formed company and enclosing a form of subscription the writer, who not long after became president of the company, stated that M. & Co., financial agents, had undertaken to sell $150,000 worth of the stock.
R. signed the form thereby agreeing to purchase from M. & Co. 100 shares and that "this underwriting may be pledged or hypothecated with any banking institution as security for advances."
He never paid for the stock which eventually was pledged by M. and Co. with the appellant as security for advances. In an action by appellant to recover the price of the 100 shares:- Held, affirming the judgment of the Appellate Division (48 Ont. L. R. 61) which reversed that rendered at the trial (46 Ont. L.R. 598) that R.'s contract was an underwriting of the undertaking of M. & Co. and a purchase of stock only if the latter failed to dispose of the whole 1,500 shares; as these were all sold the obligation of R. no longer existed.
Held, also, that the contract signed by R. was, ex facie, such as to put the appellant on inquiry; the contract was not negotiable and the agreement that it could be pledged or hypothecated could not give the assignee any rights higher than those of its assignor. *PRESErr:-Sir Louis Davies C.J. and Idington, Duff, Anglin and Mignault JJ.
reversing the judgment on the trial (2), in favour of the appellant. The point in issue on the appeal is whether or not the respondent Richardson was a subscriber for shares in a newly formed company, The Canadian Jewellers, Ltd., unconditionally and without limitation. The material facts are sufficiently stated in the head-note. Hellmuth K.C. and Chipman K.C. for the appellant. The provision in the contract that it could be pledged or hypothecated intimated to the appellant that it could safely be accepted as security and estopped respondent from alleging that the writing did not contain the whole agreement.
Carlill v. Carbolic Smoke Ball Co. (3).
It was assigned without being subject to the equities between Richardson and Mackay & Co.
In re Agra and Masterman's Bank (4).
Tilley K.C. and Cunningham K.C. for the respondent, referred to Re Schwabacher (5); Hutchinson v. London and Provincial Exchange (6).
CHIEF JUSTICE.-I am, after much consideration, of the opinion that the document or agreement on which the action is based was not an absolute and unconditional agreement to purchase and pay for the one hundred shares subscribed for by Richardson but was an underwriting or a conditional agreement to do so if the $150,000 worth of the shares of Canadian Jewellers, Limited, which Mackay & Co., Ltd., had subscribed for and were about to put on the
! market were not taken up by the public, and only to the extent that they were not so taken up.
The contentions of the appellant Trust Company with which the agreement or underwriting was pledged or hypothecated by Mackay & Co., Ltd., for advances made, were that it was not limited to the $150,000 worth of the stock of Canadian Jewellers, Ltd., which
Mackay & Co. had. subscribed for and were putting on the market, and further that even if defendant respondent's contention as to the limited construction of the agreement was correct, and it was so limited, they as pledgees or hypothecatees nevertheless are entitled to recover because they had no notice or knowledge of the conditional nature of the agreement which contained the express provision that the
I am of the opinion that the Trust Company appellants may fairly be said to come within the phrase
"Banking Institution" in the underwriting agreement mentioned.
I am also of the opinion that the document was merely an underwriting.
It is on its face expressly called so and the Trust Company must be taken, when making advances upon it when it was pledged with them, to have so understood it. The duty of inquiring and finding out what extent and what amount of shares the "underwriting" covered devolved upon them.
If they had discharged that duty they must have learned that the underwriting agreement was a conditional one binding upon . Richardson only to the extent that
Mackay & Company's subscription to the shares of
Canadian Jewellers, Ltd., which they were offering to the public for sale, were not taken up by the public.
The letter which Timmis, the co-promoter with Mackay & Company, of the Canadian Jewellers, Ltd., sent to Richardson, a letter enclosing the "underwriting form" to be signed by him in case he decided to take any shares, expressly stated that $150,000 worth of stock was the amount which MacKay & Co. had "undertaken to sell to their clients."
The appellant Trust Company would have learned by further prosecuting their inquiries that the underwriting had reference to and only covered that amount of stock.
They would thus have found the limited nature of the underwriting and have only themselves to blame if they, neglecting their duty, failed to make the inquiries which they should have made. It appears by the evidence that Mackay & Co. had sold to the public the full amount of their undertaking of $150,000 and that Richardson's obligation under his indemnity was at an end.
On the whole I am of the opinion that the appeal should be dismissed with costs.
J-The Canadian Jewellers, Limited, was incorporated by letters patent dated the 11th August, 1911, according to a minute of the first meeting of the provisional directors, on 30th of said month of August, under and by virtue of the Companies Act, c. 79 of R. S.
There would seem to have been only five subscribers, each subscribing for a single share, and they were declared provisional directors who met as such on said 30th August and elected themselves directors, and passed by-laws of which No. 18 provided as follows:at It was moved by Mr. O'Brien, seconded by Mr. Gilmor and resolved: That the Montreal Trust Company be and is hereby appointed
TnE transfer agent of the shares of the company for such considerations and upon such terms and conditions as may be arranged by the president of TRST Co. the company; and that the president and secretary of the company be and they are hereby authorized to sign and execute in the name of the Idigon J. company the necessary agreement with the said trust company.
This helps to shew the business relation of the appellant to said company and is suggestive that the appellant probably had a better chance than deceased
Richardson of knowing a good deal he should have been told and thus it was put on the inquiry.
One Timmis and the firm of J.
both being brokers in Montreal which was to be the business home of said new company, had an agree-.
ment between them whereby they undertook the promotion of the company and sales of its stock and to divide the profits between them on a stated basis.
Each took a large part of the stock-Timmis to the amount of $100,000.00 and J. A. Mackay & Co. to the amount of $150,000.00 intending, of course, to resell same to the public.
The scheme promoted was the merger of certain named companies engaged in the jewellery business and the business of others likewise so engaged.
Timmis wrote the late George T. Richardson as follows:- Montreal, 8th Sept. 1911.
George T. Richardson, Esq.,
Messrs. James Richardson & Sons, Ltd., Kingston.
Dear Mr. Richardson:-I enclose herewith an outline of the
Canadian Jewellers, Limited, an amalgamation which has been originated by myself, and which is being financed by J. A. Mackay & Co.,
Ltd., financial agents of this city. I also enclose an underwriting form.
Mr. J. W. McConnell, Mr. R. J. Dale and Mr. James Playfair have taken $15,000 each.
The money which we will receive from the sale of surplus merchandise when the different factories have been concentrated, with the 8150,000 of stock which Messrs. Mackay & Co. have undertaken to sell to their clients, will give the new concern ample ,nE cash capital, so that it is exceedingly improbable that any payment whatever will ever be called on the underwriting.
The underwriters Co. will get 50 per cent of common stock as compensation for their under- ICHARsoN. writing services.
It was my intention to have offered this to Mr. H. - W. Richardson, but as he is now in the west, I am submitting it to you. Idington J
We do not desire to have names for less than $10,000 or more than $15,000.
I shall be very glad indeed to have you in on it if you care to come, but feel perfectly free to decline if it is not entirely acceptable to you.
I only wish to give you the same opportunity as my other "Missisquoi" friends.
With kind regards, yours faithfully.
(Sgd.) Henry Timmis.
The outline enclosed, so referred to, set forth in the first part thereof, as follows:- Canadian Jewellers, Limited.
To be incorporated under the Companies Act of the Dominion of Canada.
Capital..........................$5,000,000.00 Consisting of: 25,000 shares of seven per cent (7 per cent) Cumulative Stock, and 25,000 shares of Common Stock The Company is being organized for the purpose of acquiring, coordinating and extending the business at present carried on by a number of the leading and most successful wholesale manufacturing and import jewellery houses of Montreal, Toronto and elsewhere, among others being:
William Bramley,
The Hemming Mfg. Company, The Hemsley Mfg. Company, J. E. Brown & Company, Caron Bros. and others. These concerns have gross assets approximating one million of dollars, all of which has been practically acquired from the profits of the respective businesses.
It then proceeded to set forth the rosy future to be expected from such an amalgamation.
The late Mr. Richardson replied by letter of the 12th Sept., 1911, enclosing the underwriting agreement asked for which is said to have been identical in all its terms save the date of payment with the following:- Canadian Jewellers, Limited.
TB3 Authorized Capital:
.To be issued: Preferred shares.......
2,500,000
$600,000
Common shares........ .$2,500,000
$450,000 Approx. All shares of the par value of $100 each.
J. We, the undersigned, severally subscribe for and agree to purchase from J. A. Mackay & Co., Limited, preferred shares of the above company to the number and amounts set opposite our respective names. The price to be paid for said shares is 95 per cent of the par value thereof with 50 per cent of the par value thereof in bonus common stock of the company.
The purchase price to be paid on the 15th day of January, 1913.
This underwriting may be pledged or hypothecated with any banking institution as security for advances.
This agreement may be signed in counterpart, and all counterparts taken together shall be deemed to be one original instrument. Name of
Address
No. of shares
Total amount of subscriber.
A subscribed.
subscription. G. T. Richardson, Kingston, Ont.
310,000. Witness A. W. Brown.
This is called a renewal of the original and substitutes 25th January, 1913, for the date of payment therein which was 15th September, 1912.
On the 30th October, 1914, by an agreement in writing between the appellant and the said J. A. Mackay & Company, Limited, the latter acknowledged an indebtedness to the former of $138,141.15 and interest at 7 per cent from 1st October, 1914, payable monthly and then assigns as follows:- 2. As collateral security for the payment of the said indebtedness and any interest which may accrue thereon the borrower hereby acknowledges to have assigned, transferred and made over to the lender all its right, title, claim and interest in and to the subscription made by G. Richardson, of Kingston, Ontario, for one hundred (100) shares of the preferred capital stock of Canadian Jewellers, Limited, at a price of ninety-five per cent (95%) of the par value thereof, with fifty per cent (50%) of the par value of such subscription in bonus common stock of the company, the purchase price of which stock was to be paid on the fifteenth day of January, one thousand nine hundred and thirteen (1913), as more fully appears from the copy of the said subscription hereto annexed to form part of these presents.
Then followed an acknowledgement by appellant of the borrower having theretofore delivered to it stock certificates of the Canadian Jewellers to be to the subscriber at the time of paymeiit of the said subscription.
The appellant never tendered such certificates of stock to said Richardson who had enlisted in one of the first Canadian Expeditionary Forces and gone to Valcartier, and thence overseas to France where he was killed in the late war in 1916.
Indeed any correspondence, on the subject of what is in question herein, had with him before his departure was either with Timmis or Mackay or latter's firm. The appellant claims to have sent the late Mr. Richardson at Kingston something in the end of December, 1914, but no proof given of his having got it or heard of it and the appellant must have known he was not there.
Prior to bringing this action there was a demand made on the executor of deceased's estate in Winnipeg for payment. This action is brought against said executor to recover the sum of $9,500.00 with interest thereon at 7 per cent and is founded upon the foregoing subscription, not, it is to be observed, to take stock in the company, but to buy from J. A. Mackay & Company shares thereof held by them.
The court appealed from held, and I think rightly, having regard to all the surrounding facts and circumstances which must be considered to interpret and construe what is a most ambiguously worded contract, that the condition of his so contracting had been fulfilled by the sale of stock to the public by Mackay.
Indeed, the whole of the contract as finally developed and executed is not before us but only one part which, mTHEA if justice is to be done, should have been supplemented by whatever is included in the cryptic term at the end thereof, as follows:- What does that mean? Where are these counterparts?
How much has been realized from them by
J.
Preceding that we have the following:- What is meant by "this underwriting?"
I find assistance in the case of In re Licensed Victuallers' Mutual Trading Association; Ex parte Audain
(1), at page 7.
Such an able court as there seized of that case and such an authoritative expert, if I may be permitted the term, as Lindley L. J., relative to the branch of the law in question, found it necessary to bring in evidence to help to the meaning of the term "underwriter."
I think that example might well have been followed by those conducting this case instead of leaving us to guess which of the variety of meanings the term may have is to be applied in the peculiar connection in which it was used herein.
Let us never forget this is not the common case of an issue of stock by a company in which men calling themselves for the moment underwriters do in fact undertake the management of the floating on the market a particular issue of stock or debentures by a company desiring their services.
It seems to have been in regard to what is herein in question a device copied therefrom by two men who owned a certain amount of stock in a company. Indeed the term as used herein has given rise to several different interpretations according to the side counsel happened to be on and even these not always consistently adhered to.
I think I have said enough to shew in what sense I think this contract is most ambiguous and why the surrounding facts and circumstances must be looked at. And I repeat that when so looked at and considered it was not a flotation of the entire preferred stock issued and offered by the company, but that held by J. A. Mackay & Co., and so issued and offered. Clearly they disposed of more than they then had or offered. and the obligation arising from signing such a counterpart as this now in question ended. There is, however, another and graver point raised and that is the charge that the contract was induced by fraud or by unjustifiable misrepresentation of fact. The learned trial judge found expressly that there was fraud so inducing the contract and going to the very root of the matter as would have rendered it void in the hands of J.
He did not give effect thereto for the reasons he gave, resting upon the decision of the case of In re Agra and Masterman's Bank to which I will presently refer.
The learned trial judge's statement of fact upon which he rested his finding is challenged in appellant's factum before us.
The statement the learned trial judge made is verified by the evidence given in answer to the questions 75 to 85 referred to by him.
The full import thereof did not in his view of the law call for an expanded argument and we are not to take his reference as more than an indication of much else.
The actual facts are that of the five companies set forth in the outline above quoted from, one known as the Caron Company, never had agreed as represented to come into the merger, and of the four others one was in the hands of a receiver.
And the company was induced, by means I need not enlarge upon, to accept the representation of
Timmis and, in September, almost concurrently with the signing by the late Mr. Richardson of the first subscription by him now in question, to take over some of these others from Timmis at such a gross over estimate of the value of their assets that later on, under threat of a lawsuit, he was induced to reduce their valuation to an aggregate of less than one-third of that he had induced the company to agree to.
His representations to the late Mr. Richardson were not, however, revised but, on the contrary, long after he had been so compelled by the company to accept that reduction, he continued in his correspondence with him, in answering his inquiries, to maintain the rosy side of things instead of telling him the truth.
Mackay was appealed to and responded in like fashion.
If he had told Richardson the actual facts of the disastrous change I venture to think he never would have got the renewal subscription now sued upon.
Either Timmis knew that the representations he was making to Richardson were false, or he made them recklessly not caring whether true or false, and thus the contract was founded on fraud, and null. J.
Or there may have been in law an alternative view of possibly mere misrepresentation which entitled Richardson, on its coming to his knowledge, to repudiate the contract.
I am.of the opinion that in law the appellant has no higher right than J. A. Mackay & Co., with whom the contract was made.
And I have no doubt that the learned trial judge, while having ample ground in the evidence that was before him in the whole case, and not confined to one or more sentences thereof, to say and hold that the contract had been induced by fraud, erred in holding that the Agra Case above cited, prevented his applying the facts as against appellant.
That case seems to me quite distinguishable. It proceeded on a promise, as in principle the court found, to honour drafts provided for in a letter of credit there in question.
Here there is nothing but a contract, non-assignable in law, to buy from J. A. Mackay & Co. a number of shares.
And there is added thereto a consent to its being used in a specified manner without any promise express or implied that there was or could not be anything vitiating it.
Moreover there was nothing involved in the Agra Case (1), but the liability to answer for a recognized breach of contract to the creditors of the bank in liquidation, no charge of fraud or the like being involved.
I have looked at all the cases cited in appellant's factum and fail to find in any of them anything to support appellant's contention on this point.
Indeed most of them relate to transfers of negotiable bonds or debentures.
One other case cited seems to rest upon estoppel which does not help here.
The point taken by the respondent that the appellant is not a banking institution within the meaning of the term as used in this contract is, I think, well founded.
In view of section 156 of the Bank Act, R.S.C.
1906, c. 29, prohibiting appellant from calling itself a banking institution, I prefer that to the Century
Dictionary as my guide to the meaning of such a term when used in such a document as in question herein.
Indeed the objection seems fatal to the right asserted by appellant that it has any higher title than J. A.
Mackay & Co. would have if suing.
And the case of Crouch v. The Cr6dit Foncier of
England (1), is much more in point than any of the bond and debenture cases cited by appellant, for it shews how little may take away from these usually negotiable instruments the quality of negotiability.
In quitting this branch of the case I may say I have endeavoured to find something on the curious question of what exact meaning may be attached to the words
"this underwriting" but found nothing more instructive than the Ex parte Audain Case (2) cited above.
And I presume industrious counsel on either side citing so many decisions have failed also or we should have had some results worth while.
I, for the foregoing reasons, have come to the conclusion that this appeal should be dismissed with costs.
1921DUFF J.-The agreement sued upon is an underwriting agreement.
This is sufficiently clear from the form of the document.
It is true that there is an undertaking to accept and pay for shares but the undertaking is declared in explicit terms to be of the nature of an underwriting. 'In essence, therefore, the obligation is an obligation indemnify J. A. Mackay & Co. against failure to dispose of the underwritten shares.
In any action to enforce this undertaking the onus is of course on the plaintiff to shew that the circumstances have arisen making absolute the conditional obligation to accept the shares and pay for them and this proof is lacking.
Mr. Hellmuth's principal contention was that the clause constituted an authority to the lender to make advances as upon the security of an absolute obligation to pay. I cannot find any evidence of such authority in this document; on the contrary the obligation upon which the lender is invited to advance is described in express words as "this underwriting."
Mr. Helhmuth relies upon the judgment of Lord Cairns in In re Agra and Masterman's Bank at pp. 396 and 397. The substance of Lord Cairns' judgment in this case, in so far as now pertinent, is that the letter there in question was an invitation to bankers to advance money upon the faith of a promise contained in that letter to accept bills drawn upon the writers of it and that this virtually constituted an undertaking to pay such bills irrespective of the equities between the writers and the persons to whom the letter was addressed propriis nominibus. The letter contained an unqualified promise to honour the drafts addressees expressed terms plainly constituting an invitation to third persons to negotiate such drafts in reliance upon that promise. J. The letter was either a promise to pay such drafts in disregard of equities or it was a mere trap, which of course the writers of it could not be allowed to aver. I find at most only a superficial resemblance between that letter and the document now under consideration. Here there is no unqualified undertaking and indeed no undertaking of any description by the subscribers to repay advances made upon a pledge or hypothecation of the agreement.
The appeal should be dismissed with costs.
J.-After giving to all the circumstances of this case most careful consideration I have reached the conclusion that the plaintiff's appeal should not succeed. I have no doubt that the Trust Company took the obligation of the late G. T. Richardson subject to whatever equities and conditions affected it in the hands of J. A. Mackay & Co., of which its ex facie designation as an "underwriting" in my opinion gave them constructive notice.
I cannot accept the view that the mere statement that the non-negotiable document signed by Richardson might be pledged or hypothecated as security for advances enables the assignee of it to assert rights higher than those held by its assignor,
I think it is also reasonably clear that the liability assumed by Richardson towards J. A. Mackay & Co. was not absolute but conditional and in the nature of an underwriting.
I am not so well satisfied however as to the terms of the condition on the happening of which Richardson's liability on the document sued upon was intended to cease.
In view of the facts that this document is an underwriting of J. A. Mackay & Co. and that Mackay himself tells us that "the amount to be underwritten (by his firm) was to be $150,000," I am not convinced that the conclusion of the learned Chief Justice of Ontario that Richardson is wrong.
The evidence taken as a whole leaves little room for doubt that J. A. Mackay & Co. did in fact dispose to the public of more than the original $150,000 worth of preferred stock for which they undertook to obtain purchasers.
Therefore, while not entirely satisfied that the condition of the underwriting sued upon was what the Appellate Divisional Court has found it to be, since the evidence, oral and documentary, does not enable me to say that it was something different and was unfulfilled, a reversal of the judgment a quo would not, in my opinion, be justified. J.-The document on which the appellant's action is based is an undertaking signed by the late George T. Richardson, represented by the respondent, his executor, to subscribe for and purchase from J. A.
Mackay & Co., one hundred preferred shares of Canadian Jewellers, Limited, at the price of 95 per cent of the par value thereof, with 50 per cent of the par value thereof in bonus common stock of the company, the purchase price to be paid on the 15th day of January, 1913.
This undertaking replaced a former one not produced, but said to have been similar in tenor and states:- It is very important to observe that this document is not a negotiable instrument.
And I fear that many of the appellant's contentions are based upon a negotiability which it certainly does not possess. The appellant however relies upon the clause stating that this underwriting may be pledged or hypothecated with any banking institution as security for advances, and the learned *trial judge, on the authority of the judgment of Lord Cairns (then Sir H. M. Cairns L. J.) in In re Agra and Masterman's Bank, ex parte Asiatic Banking Corporation at page 397, decided that under this clause the appellant took Richardson's undertaking free from any equities it might have in the hands of J. A. Mackay & Co., Limited.
In my opinion the case cited does not help the appellant.
It was the case of a letter of credit issued by a bank in favour of one of its clients, authorizing the client to draw upon the bank to the extent of £15,000, and undertaking to honour on presentation drafts drawn thereunder.
Lord Cairns said: There is nothing similar here.
The stipulation that the "underwriting" might be pledged or hypothecated did not add anything to it as a contract, nor did it, in my opinion, give the assignee any greater right than is conferred by the assignment of a contract or chose in action, the more so as the very clause permitting its pledge or hypothecation gave notice to the pledgee that it was an "underwriting," that is to say, as I will show, a conditional contract. surely a conditional contract can only be assigned subject to the condition expressed in it or consequent. on its nature.
The other cases referred to by the learned trial judge are bond cases to which very different principles apply.
I have said that Richardson's undertaking, being an "underwriting", is a conditional contract.
Bouvier, Law Dictionary, Vol. 3, p. 3352, defines "underwriting" and "underwriting contract" as follows:- An underwriting is therefore essentially a conditional contract, and whatever rights J. A. Mackay & Co., Limited, or the appellant as its assignee, had were subject to this condition.
It follows that the appellant took this undertaking subject to any equities and conditions which affected it in the hands of J. A. Mackay & Co., Limited. other words it acquired no higher rights than J. A. Mackay & Co., Limited, itself had to exact performance of Richardson's undertaking.
There is some difficulty in determining. here what was the preferred stock which had to be taken up to free Richardson from liability under his contract.
The heading of the document signed by Richardson represents the preferred shares as being $2,500,000, of which shares to the amount of $600,000.00 were to be issued.
Is the amount of shares underwritten by Richardson the whole $600,000.00, or, as found by the Appellate Division, only the $150,000.00 which J.
It is to be observed that Richardson's contract to underwrite shares was made with J. A. Mackay & Co., Limited. The form signed by Richardson, or a similar form, was enclosed in the letter which one Henry Timmis, promoter of the company, wrote to Richardson on the 8th of September, 1911, whereby he sought to induce Richardson to enter into an underwriting contract with Mackay & Co. This letter represented that Mackay & Co., who were financing the company, had undertaken to sell $150,000 worth of stock to their clients, and the document signed by Richardson being an underwriting contract made with Mackay & Co., this letter would shew that the stock to be underwritten was the $150,000 worth of stock which Mackay & Co. had undertaken to sell to their clients.
There is no suggestion in this letter that
Mackay & Co. were seeking subscriptions for a greater amount of the preferred stock.
Timmis, in his evidence, stated that Mackay & Co. and he himself had sold to the public 4,760 shares. I do not think therefore that there can be any serious doubt that the whole $150,000 of stock had been sold by Mackay & Co. to the public.
. 8
This being the case
Richardson's obligation to subscribe the stock underwritten by him came to an co. end, and Mackay & Co. would have no action against Richardson to force him to take the stock. J. appellant, not being in a better position than Mackay & Co., cannot therefore assert any rights under Richardson's contract.
The appeal should be dismissed with costs. Appeal dismissed with costs. Solicitor for the appellant: J. B. Walkem.
Solicitors for the respondent: Cunningham & Smith. APPEAL-Jurisdiction-Title to lands- Municipal law-Procks-verbal-Opening of road-Expropriation-R.S.C., c. 135,s. 46
["Supreme Court Act."] In an action to quash a procks-verbal passed by a municipal council for the purpose of opening a road and acquiring land by way of expropriation or otherwise, the controversy relates to a title to lands and an appeal lies to the Supreme Court of
Canada. Idington J. dissenting. Murray v. Town of Westmount (27 Can. S.C.R.
LA
2-Certiorari - "Supreme Court Act," s. 36, as enacted by
10-11
Geo.
V.,
32.]
A judgment quashing a conviction for an infraction of a provincial liquor Act is a judgment in a proceeding arising out of a criminal charge within the exception to section 36 of the "Supreme Court Act" as enacted by 10-11 Geo. V., c. 32. Mitchell v.
Tracey (58 Can. S.C.R. 640) applied.
THE NAT LTD.
..................
3-Special leave to appeal-When to be granted by appellate courts-Section 41
"Supreme Court Act," as enacted by 10 .&
11 Geo. V., c. 32.]-Per Anglin, Brodeur
Mignault
JJ. Special leave appeal to the Supreme Court of Canada should not be granted by the highest court of final resort in the provinces under section 41 "Supreme Court Act,"
as enacted by 10 & 11 Geo. V., c. 32, if neither an important principle of law, nor the construction of a public Act, nor any question of public interest is
4-Jurisdiction - Amount in controversy-Title to land-Personal action- Rent-Option to buy.] In 1914, L. and
St. D., co-owners of an hotel property, rented it to S. and gave him also an option to buy at the price offered by an
APPEAL-Concluded.
intending buyer. The lease was expiring on the 1st of May, 1920.
On the 20th of February, 1920, St. D., acting personally and as agent of L., rented the same property to G. for five years from the 1st of May with the option to buy it for $60,000.
On the 22nd of March, 1920, S. notified L. and St. D. that he was exercising his option to buy the property for $60,000.
On the 24th of April, 1920, two actions were brought to annul the lease by St. D. to G., one by S. against St. D. with L. and G. as mis-en-cause, and one by L. against St. D. and G. On the 8th of May, 1920, G., tendering a sum representing the rent for one month, brought an action against St. D., L. and S. in order to be put into possession of the hotel. The two first actions were dismissed by the trial court and no appeal taken.
The third one by G. was maintained by the Superior Court, which judgment was affirmed by the Court of King's Bench.- Held, Anglin and Mignault JJ. dissenting, that there was jurisdiction in the Supreme Court of Canada to entertain an appeal. LAFER- 5-Special leave to appeal-Petition to sue in name of trustee-"Bankruptcy Act," 9 & 10 Geo. V., c. 36, sections 35 and 74, ss. 3.] A judge sitting in bankrupcy having granted a petition by the respondent, under section 35 of the "Bankruptcy Act," to be authorized to take certain proceedings in the name of the trustee but at the respondent's own expense and risk, the Court of King's Bench held that it was a mere preparatory judgment and one not subject to the control of that court.-Held, that special leave to appeal to the Supreme Court of Canada should not be granted.
6-Question of costs............... ASSIGNMENT................
346, 617 AUTOMOBILE-Manslaughter.....
- Insurance policy-Construction-Conveyance on ferry-Special risk ..... ..
BANKRUPTCY-Appeal-Special leave appeal-Petition to sue in name trustee-"Bankruptcy Act," 9-10 V.,
36, sections 35 and 74, ss. .......
See 5.
BANKS AND BANKING-Debtor and creditor-Whole output hypothecated bank
-Part given as security for outside loan- Bank's approval-Liability to account.]
The R Co., pulp manufacturers, being indebted to the appellant bank, had hypothecated to it their whole output.
Respondent made a loan to R. Co. of
$5,000 and, as security, R. Co. undertook to pay him "$10 per ton from the proceeds of each ton of pulp manufactured and sold."
This agreement was marked approved by the bank.
All the proceeds of pulp sales were deposited in the appellant bank to the credit of R. Co.
Certain sums were paid to respondent by the bank, pursuant to this agreement; but later the bank refused to honour cheques drawn by R. Co. in favour of the respondent who brought action against the bank.
that the appellant bank was liable to account to the respondent for
$10 per ton from the proceeds of pulp sales actually received by it from R.
Co.-Per Duff J. and semble Anglin J.
Such agreement was an equitable assignment to the respondent of $10 per ton of the proceeds of pulp sales received by the appellant bank.-Per Anglin and
Mignault JJ. This agreement created an equitable charge on such proceeds to the extent of per ton.-Judgment the Court of Appeal ([1921] 1 W.W.R.
456) affirmed.
FINUCANE.................
BOARD
RAILWAY
COMMIS- SIONERS.......................
BROKER-Speculation in foreign stocks- Adverse rate of exchange-Dealing in margins-Profit customer-Right exchange profit.] In the absence of any agreement to the contrary, or of a custom of the stock market of which he is, or is presumed to be, aware, the customer of a
BROKER-Concluded.
Canadian broker who buys and sells for him, through an agent in New York, United States stocks on margin is entitled to have his profits paid in American currency and so get the benefit of the adverse rate of exchange between the two countries.
..... ...... CARRIER-Liability-Carrier or warehousemen-Notice to owner.] condition in the bill of lading for carriage of goods by the C.P.R. Co. to New York under a joint tariff was that the company would be liable for loss of, or injury to, the goods caused by the negligence of another carrier from which the latter was not relieved by the terms of the bill of lading. The goods were lost while in the custody of the other carrier after they arrived in New York.-Held, that the onus was on the C.P.R. Co. of showing that the loss was not caused by negligence or, if it was, that the other carrier was relieved from liability.-Another condition was that if the goods were not removed within forty-eight hours after written notice had been given of their arrival the carrier could keep them on its premises and be responsible as warehouseman only or, at its option, after giving notice of its intention to do so, place them in a public warehouse at the risk of the owner and be free from liability. The goods were kept on the premises for a few days after notice of their arrival was given to the consignee and then, without further notice, were placed in a public warehouse where they became unfit for sale and were abandoned by the owner.- Held, that the carrier was not relieved by the terms of this condition; the goods were not kept on the premises and so the liability was not that of a mere warehouseman; and it was not relieved from liability by placing them in a public warehouse as no notice was given of its intention to do so.
Co. HATFIELD......... CASES
Finucane v. Standard Bank of Canada ([1921] 1 W.W.R. 456) aff .......... Fisher v. Kinney N. Rep. 406) ref.........
CASES-Continued.
Friedman v. St. Charles R. L. n.s. 96)
aff...............................
Gold Seal Limited v. Attorney General for
Alberta Alta. L.R. aff ......
Halifax Graving Dock Co. v. The King
(20 Ex. C.R. 67)
Laferriere v. Gariepy (Q.R. K.B. 256)
aff ...............................
MacKenzie v. Palmer Sask. L.R.
rev ..........................
McCarthy v. The King 1 W.W.R.
433) aff..........................
McDowell v. Township of Zone (48 Ont.,
L.R. 459) aff......................
Mitchell v. Tracey (58 Can. S.C.R. 640)
app ..............................
Montreal Trust Co. v. Richardson (48
L.R . aff......................
Murray v. Town of Westmount (27 Can.
S.C.R . 579) fol....................
Neitzke v. Secretary of State for Canada
(20 Ex. C.R. 219) aff. in 262
Paradis v. Bernier (Q.R. 30 K.B. 372)
rev ..............................
Peterson v. Bitzer (48 Ont. L.R. 386)
rev.............................
Quebec, City of, v. United Typewriter Co.
(Q.R. 30 K.B. 281) aff .............
Ross v. Dunstall (Q.R 29 K.B. 476).aff. 393
CASES-Concluded.
Ross v. Emery (Q.R. 29 K.B. 476) aff. Samuel v. Black Lake Asbestos and Chrome Co. (48 Ont. L.R. rev......... Sherlock v. Grand Trunk Railway Co. (48 Ont. L.R. 237) aff Smith v. Canadian Pacific Railway Co. Sask. L.R. 535) var ........... Wampler v. British Empire Underwriters (48 Ont. L. R. 428) rev ............
Wiehmayer v. Secretary of State for Canada (20 Ex. C.R. 219) aff. in part 262 CERTIORARI - CIVIL CODE
Art. 358 (Corporations) .............
Art. 851 (Will).................... Art. 983 (Obligations) ...............
Art. (Contracts) ...............
Art. 1053 (Offences and quasi-offences) Art. 1070 (Obligations).............. Art. (Presumptions) ........... Art. 1472 (Sale) .................
Arts. 1522, 1527 (Sale) ........ Art. 1533 (Sale)..... ............
CIVIL CODE-Concluded.
Arts. 1608, 1609, 1642, 1657, 1663 (Lease)
.................................
Art. 1777 (Loan)...................
Art. 2009 (Privilege)...............
Art. 2128 (Registration).............
CODE OF CIVIL PROCEDURE
Art. 50 (Jurisdiction of courts)....... 175
Art. 177 (Dilatory exception) ........
COMPANY-Sale of land-Implied powers-Exercise of option-Specific performance.] The charter of a pulp and paper company empowered it to purchase and hold lands, privileges, growing timber and other property.-Held, that from this power to purchase the power to sell is implied having regard to the nature of the business to be carried on.- Held also, Duff J. dissenting and Cassels
J. expressing no opinion, that the company could sell all the property so acquired as long as it did not dispose of its whole undertaking.-M.
obtained from company a lease of all its real and personal property with an option to purchase the same at any time during the term.
He assigned the lease to B. who agreed in writing that, if he exercised said option he would convey to M. a quarter interest in the property he acquired.
B. did not formally exercise the option but with intent to defraud M. he acquired enough stock in the company to give him control.
In an action by M. for specific performance of the agreement to give him a quarter interest.-Held, Duff and Cassels
JJ. (dissenting)
, that B. having complete control by his acquisition of the stock in fact exercised the option to purchase and may be compelled to procure the conveyance necessary to vest in M. the quarter interest to which he is entitled.
Per Duff J. The option to purchase was ultra vires of the company; it dealt with all the land, etc., which the company was authorized to acquire and the powers given the company by its charter made
COMPANY-Concluded.
it an undertaking in which the public must be presumed to have an interest; in such case the sale of all the land, the whole sub-stratum of the undertaking, which the charter does not authorize would be an interference with the carrying out of the undertaking as authorized by the legislature and must be deemed to be prohibited.
2-Contract - "Underwriting" - Assignment of subscription agreement-Rights of assignee.] In a letter sent to R. requesting him to take stock in a newly formed company and enclosing a form of subscription the writer, who not long after became president of the company, stated that M. & Co., financial agents, had undertaken to sell $150,000 worth of the stock. R. signed the form thereby agreeing to purchase from M. & Co. 100 shares and that "this underwriting may be pledged or hypothecated with any banking institution as security for advances." He never paid for the stock which eventually was pledged by M. and Co. with the appellant as security for advances. In an action by appellant to recover the price of the 100 shares:-Held, affirming (48 Ont. L. R. 61) which reversed that rendered at the trial (46 Ont. L.R. 598) that R.'s contract was an underwriting of the undertaking of M. & Co. and a purchase of stock only if the latter failed to dispose of the whole 1,500 shares; as these were all sold the obligation of R. no longer existed.-Held, also, that the contract signed by R. was, ex facie, such as to put the appellant on inquiry; the contract was not negotiable and the agreement that it could be pledged or hypothecated could not give the assignee any rights higher than those of its assignor. Co. v. CONSTITUTIONAL LAW - Provincial railway - Operation by provincial government - Removal of directors-" Work for general advantage of Canada"-Express declaration-Lease to Dominion Government.] Where the government of a Province is authorized by the legislature its act of removing the directors and appointing others is intra vires of its powers.-If, under the provisions of s. 92, s.s. 10 (c) of the B.N.A. Act, a pro- CONSTITUTIONAL LAW-Continued.
vincial public work can be made a "work for the general advantage of Canada"
without an express declaration by Parliament therefor a lease of it to, and its subsequent operation by, the Dominion
Government is not equivalent to such a declaration. But;-Held, Idington and
Duff JJ. expressing no opinion, that the express declaration is necessary in every case.
Co. v. JoNE s.....................
2-"Canada Temperance Act," R.S.C.
(1906) c. 152-Validity of Part IV, as added by (C.) 1919, 10 Geo. V., c. 8- Proclamation - Essential provisions - Hours of polling-Curative Act of 1921,
11 & 12 Geo. V., c. 20-Retrospective effect-Civil rights-B. N.A. Act (1867)
R.S.C. (1906) c. 79-"Dominion Elections
Ad," 10 & 11 Geo. V., c. 46-"The Liquor- Act," (Alta.) 1916, 7 Geo. V., c. 41-"The
Liquor Export Act" (Alta.) 1918, 8 Geo.
V., c. 8.] Part IV, added to the "Canada
Temperance Act" by c. 8, 10 Geo. V.,
(1919), and prohibiting the importation of intoxicating liquor into those provinces where its sale for beverage purposes is forbidden by provincial law, is intra vires of the Dominion Parliament under its general power "to make laws for the peace, order and good government of
Canada."-Per Sir Louis Davies C.J.
The validity of that Act can also be supported upon the power of the Dominion by section 91 (2) B.N.A. Act, to make laws for "the regulation of trade and commerce."
Duff J. semble.-Held, also, that prohibition of import in aid of temperance legislation is not within the purview of section 121 of the B.N.A.
Act, as the object of that section is to ensure that "articles of the growth, produce or manufacture of any one of the provinces" shall not be subjected to any customs duty when carried into any other province.
Idington J. contra.- Held, also, that the Dominion Parliament can enact laws which may become operative only in certain provinces or which may aid provincial legislation.- Held, also, Duff J. dissenting, that noncompliance with the imperative requirement of sub-section (g) of section 152 of the "Canada Temperance Act," that the proclamation of the Governor in
Council for taking the poll should state
"the day on which in the event of the
CONSTITUTIONAL LAW-Continued. vote being in favour of the prohibition such prohibition will go into force," was fatal to the validity of all subsequentproceedings, including the orders council bringing prohibition into force.- Per Idington J. The proclamation was also void on the ground that it extended the hours for taking the poll beyond those expressly provided by the statute, section 101 of the "Dominion Elections Act" not being applicable. Anglin J. semble.-Per Duff J. Under section 109 of the "Canada Temperance Act" and section 153 of the "Canada Temperance Amending Act," the Governor in Council had absolute discretion as to the date on which prohibition shall come into force and he was not authorized to limit the exercise of that discretion by an irrevocable decision at the time of the issue of the proclamation.-Per Sir Louis Davies C.J. and Anglin J. The provision in Part IV that the prohibition shall be in force "if more than one-half of the total number of votes cast in all the electoral districts are in favour of such prohibition" is satisfied where more than one-half of the total votes cast in the province are in favour of prohibition, although in certain electoral districts there is a majority against prohibition; "in all the electoral districts" does not in the context mean "in each electoral district."-Before judgment was rendered in this case, the Parliament of Canada passed an Act, in 1921, 11 & 12 Geo. V., c. 20, declaring that "no order of the Governor
Council declaring prohibition in force in any province * * * shall be
* *
* ineffective, inoperative or insufficient to bring prohibition into force at the time thereby declared by reason of any error, defect or omission in the proclamation
*
*
Idington J. (dissenting)
, that this Act was intra vires of the Parliament of Canada and had a retrospective effect. legislative jurisdiction which authorized the "Canada
Temperance
Amending Act" of 1919 supports also the interpreting statute of 1921.
Its validity cannot be impugned on the ground of interference with civil rights; per Duff J.-as this legislation, though affecting such rights, was not passed "in relation to" these rights.-Per Idington J. (dissenting). The curative statute of 1921 cannot retrospectively affect the civil rights of the appellant which rested on CONSTITUTIONAL LAW-Concluded. i CONTRACT-Continued.
provincial law, and these rights must be determined according to the law applicable to the province as it existed before such enactment.-Judgment of the Appellate Division 16 Alta. L.R. 113), affirmed, Idington J. dissenting.
CONTRACT - Work and labour - Repugnant provisions-Rule of construction.] In a contract for altering a building the contractor covenanted consideration of the sum of $3,000
*
*
* that he will furnish the materials hereinafter mentioned and will perform services as hereinafter set forth.
After setting out the character of such work and materials the contract provided that in case the cost should be more or less than
$3,000, payment would be made on the basis of cost plus a percentage and that the contractor should be entitled "to the amount ascertained as paid by him for labour and material, plus 12- per cent."-Held, Davies C.J. and Duff J.
dissenting, that this last mentioned provision for payment is repugnant to that by which the contractor made an absolute covenant to do the work and furnish the material for $3,000, and there being no special reason for departing from the general rule the later clause must be rejected.-Per Davies C.J. and
Duff J. The clauses are not repugnant but assuming that they are the fact that the intention of the parties as disclosed by the contract was that the sum of
$3,000 was only an estimate of the cost and that the contractor was to be paid the price of his labour and materials plus a reasonable profit, constitutes a special reason for refusing to reject the later clause.
2-Vendor and purchaser-Verbal agreement-Letter sent by purchaser containing it-Silence of the vendor-English doctrine of estoppel-Not part of the law in Quebec.] Where one of two parties to a verbal commercial agreement thereafter writes a letter to the other purporting to state the terms of a contract arrived at between them, the failure of the latter to repudiate such contract within a reasonable time does not de jure import an assent to it, and, in this case, the circumstances did not warrant that inference of fact from the silence of the recipient of the letter.-Per Mignault J. The doctrine of estoppel, as it exists in England and the common law provinces of Canada, is no part of the law in Quebec.
3--Ofer - Acceptance - Consensus ad idem.] The Halifax Graving Dock and plant were wrecked by the explosion in the harbour in 1917 and in Jan. 1918 the Government of Canada passed an order in council providing that the work of repair and reconstruction should be entrusted to the appellant company on the condition, inter alia, that the latter should contribute $111,000 (the amount of the insurance it carried) and the Government pay the balance. A letter was sent to the company enclosing a copy of the order and stating that "an agreement is being prepared and will be submitted to you shortly for your signature,"
but no agreement was ever executed.
Two days later the company wrote the Minister of Public Works saying that the terms of the order were satisfactory and adding "but in order that all will be quite clear our understanding is that we are to assign our insurance policies to the Government and that the temporary buildings now being constructed are to be replaced by permanent buildings of the same kind as the original."
The company did some of the work on the dock but the Minister was not satisfied with its progress and the Government took it over, practically completed it and eventually expropriated the property.
In proceedings by the company to recover the amount expended on the work.-Held, affirming the judgment of the Exchequer Court (20 Ex. C.R. 67), Duff J. dissenting, that the letter of the company to the Minister did not contain an unqualified acceptance of the terms set out in the order in council; that there never was a consensus ad idem between the parties; and the company could not recover.
Co. TRE Statute of Frauds - Memo. sn uriting-Implied terms.] An action was brought for specific performance of an agreement contained in the following document: "Received from Clayton Peterson the sum of one hundred dollars on deposit for house at 62 George St., $1,400 payable May
1st, 1920, and CONTRACT-Continued.
balance of $2,300 on 5 year mortgage."
A cheque bearing the same date as the above was given to Mrs.
St., at purchase price of $3,800, $1,400 payable on May 1st, 1920, and assume a 5-year mortgage of $2,300.-Held, reversing the judgment of the Appellate
Division (48 Ont. L. R. 386) Idington and Duff JJ. dissenting, that the documents could be read together and constituted a sufficient memorandum writing of a contract of purchase to satisfy the Statute of Frauds; that the date, May 1st, 1920, on which the cash payment was to be made and security given for the balance of the purchase money indicated the time for taking possession; and that a stipulation that the mortgage would bear interest could be implied, the rate to be five per centum as provided by statute.
5-Purchase of goods-Time for delivery
-Extension-Breach-Measure of damages
-Substituted contract.] By a contract entered into in April, 1917, S. agreed to purchase a specified quantity of chrome ore from the Black Lake Co., delivery to be completed on Nov. 1st. The ore was not delivered on that date though S.
had been urging expedition and had offered to extend the time and in October the company wrote S. that material shipments could not be made for some months and suggesting that the contract be cancelled, which S. refused to do.
There was no formal extension. In
November conversations took place between S. or his representative and the manager of the mines which ended in the latter undertaking to deliver the ore as fast as it could be got out.
The delays continued with S. still urging expedition until June, 1918, when the company wrote that no further deliveries would be made. In an action by S. for damages the breach of contract was admitted the only question being its date and the consequent measure of damages.- Held, reversing the judgment of the Appellate
Division (48 Ont. L.R. 561) that there was no breach of the contract before
June, 1918;,that there was no new contract entered into as a result of the conversations that took place in Novem- CONTRACT-Continued.
ber, 1917, but the parties acted throughout on the basis of the original agreement made in April; and that the measure of damages was the difference between the contract price and the value of the ore in June,
6- Price for completion-Percentage- Payable as work progresses-Basis computation-Security retained-Architect's certificate.] By a building contract the contractor was to be paid a specified amount for the whole work in instalments of eighty per cent of labour and materials delivered on the certificate of the architect. Mignault J. dissenting, that to make the twenty per cent retained by the owner a valid security for completion of the work, the architect, in certifying the eighty per cent due, should base his estimate on the proportion that the value of the work done bears to the cost of the entire undertaking.
HoPGOOD V. Paper supply Annual supply-Yearly requirements.] A contract between a publishing company and a company manufacturing paper provided that "the company agrees to sell and the purchasers (publishers) to purchase, during the period commencing on the 1st day of January, 1916, and ending on the 31st day of December, 1918, for use in the publication of the British Whig newspaper
*
* * one hundred and fifty tons approximately of paper per year (being the whole of the purchasers' requirements)
*
* * - Held, that this was not a contract for the supply of 450 tons but one calling for an annual supply of approximately tons.- Held, also, Idington and Duff JJ. dissenting, that the governing words were "one hundred and fifty tons approximately of paper per year," and not the expression between parentheses which only referred to 150 tons as an estimate of the yearly requirements that the obligation of the manufacturer was to supply "about" 150 tons each year; and that the fact that in each of the first two years the publisher was furnished with 50 per cent more than 150 tons did not.affect this construction. CO. THE E. B. CONTRACT-Concluded.
writing" - Assignment of subscription agreement-Rights of assignee.] In a letter sent to R. requesting him to take stock in a newly formed company and enclosing a form of subscription, the writer, who not long after became president of the company, stated that M.
& Co., financial agents, had undertaken to sell $150,000 worth of the stock. R.
signed the form thereby agreeing to purchase from M. & Co. 100 shares and that "this underwriting may be pledged or hypothecated with any bhnking institution as security for advances."
He never paid for the stock which eventually was pledged by M. and Co. with the appellant as security for advances.- In an action by appellant to recover the price of the 100 shares.-Held, affirming
(48 Ont. L. R. 61) which reversed that rendered at the trial (46 Ont. L.R. 598)
that R.'s contract was an underwriting of the undertaking of M. & Co. and a purchase of stock only if the latter failed to dispose of the whole 1,500 shares;
as these were all sold. the obligation of
R. no longer existed.-Held, also, that the contract signed by R. was, ex fade, such as to put the appellant on inquiry;
the contract was not negotiable and the agreement that it could be pledged or hypothecated could not give the assignee any rights higher than those of its assignor.
TRUST v.
9-Evidence - Admissibility - Corroboration - Conveyance - Security for advances - Continuing agreement ...
10-.......................
See CRowN 1.
CRIMINAL LAW - Principal guilty of manslaughter-Abettor afterwards convicted of murder - Charge - Explanations as manslaughter - Sections 69, 262 Cr. C.
The appellant was tried for murder and found guilty. The victim had been killed by the appellant's son, at the instigation of his father. The son, having had his trial previously, had been found guilty of manslaughter.that the appellant could be convicted of murder.-The trial judge in his charge,
CRIMINAL LAW-Continued. after reading section 259 Cr. C., explained to the jurors the nature of murder and instructed them that they could find one of three verdicts against the accused, murder, manslaughter or acquittal. While he did not read section 262 Cr. C. which refers to manslaughter, in discussing provocation and the defences set up by the appellant of self-defence and protection of the home, he explained under what circumstances the verdict might be one of manslaughter.- Held, Brodeur J. dissenting, that the trial judge sufficiently instructed the jury as to what in law constitutes the offence of manslaughter.-Per Brodeur J. (dissenting). There was sufficient evidence to justify the jury in finding a verdict of manslaughter if they had been properly instructed.
v. THE 2 - Manslaughter - Person killed automobile-Criminal liability of driver- Degree of care-Sections 247 and 258 Cr. The driver of an automobile, who fails take reasonable precautions against, and to use reasonable care to avoid, danger to human life is, under section 247 of the Criminal Code, criminally responsible for the consequences.- Judgment of the Court of Appeal ([1921] 1 W.W.R. 443) affirmed.
MCCARTHY V. 3 - Speedy trial - Election - Requirement by the Attorney-General-Jury Trial Panel box-66 jurors instead of 60-Sections 446, 777, 778, 825, s.s. 5, 826, 827, 873, 927 1019 Cr. C.-Arts. 3438, 3455, 3459 R.S.Q.] The appellant was arrested on a charge of highway robbery, and when brought before a judge of the Sessions of the Peace, he did not elect for a speedy trial, pleaded "not guilty"
and was duly committed for trial. The Grand Jury found a true bill upon an indictment preferred by the Attorney-General. appellant was then arraigned and again pleaded "not guilty,"
On the day of the trial his counsel made an application to have the case postponed to the next term of the assizes to permit the accused to elect for a speedy trial, if he so decided, but the application was refused. Under article 3438 R.S.Q., sixty petit jurors had been summoned; but the sheriff, on receiving notices of claims fok exemption summoned additional jurors and returned before the court the first panel with the CRIMINAL LAW-Concluded.
additions made to it. As the claims for exemption were disallowed, the names of sixty-six petit jurors remained in the panel box.
On the day of the trial, six jurors were absent; none of the jurors called were challenged by the accused and the twelve called were sworn without any objection, except that counsel for appellant objected to the fact that the panel box contained more than the names of sixty jurors. This objection was also overruled, and the appellant was tried and found guilty.
A reserved case was granted the appellant; and the questions submitted were as to the constitution of the panel and as to whether the accused had wrongly been refused the right to elect for a speedy trial.-Held, that the alleged irregularities are not sufficient to entitle the accused to a new trial.-Per
Idington J. The appellant, having previously renounced any desire for a speedy trial and having later pleaded to the indictment without raising any objection, had waived any right he had to elect for a speedy trial.-Per Duff and Brodeur JJ.
The right of the appellant to elect to be tried summarily had been taken away by the requirement by the Attorney- General for a jury trial, the preferment of the indictment by the Attorney- General under sect. 873 Cr. C., constituting such requirement within the meaning of sect. 825, s.s. 5, as enacted by 8-9 Ed. VII., c. 9, s. 2.-Per Anglin and Mignault JJ. The application made on behalf of the accused for a postponement of the trial to permit him to re-elect was not an election for a speedy trial;
and, therefore, there was no refusal to grant acte of an option made by the accused.-Held, also, that, in not discharging the six additional jurors, the trial judge exercised a discretion conferred on him by art. 3459 R.S.Q., and moreover, circumstances, did not suffer any substantial wrong on that account. Coi- 4-Certiorari-Criminal
Charge.... 118
CROWN LANDS - Colonization lots - Location tickets-Prohibition to sell-Sale of timber - Fraud - Order in council - Retroactive effect-Sect. 1572 R.S.Q. (1909)]
On the 24th day of December, 1913, the appellant agreed to sell to the respondent
CROWN LANDS-Continued.
the right to cut timber during 99 years on four lots then classified by the Crown for colonization purposes, for the sum of $400 payable after the appellant would have obtained letters patent. Section 1572 R.S.Q. (1909) provides that: "lots sold or otherwise granted for settlement after 1st July, 1909, shall not for five years following the date of the location ticket, be sold by the holder of the location ticket or otherwise alienated, wholly or in part."
Location tickets for these lots were applied for on the date of the agreement by the appellant and relatives. On the 29th December, 1913, the Crowns Lands agent received authority to issue the location tickets but only upon the applicants making the statutory sworn statement that they were acquiring these lots in order to become bona fide settlers, that they were not lending their names to any other person and that they were not acquiring the lots for the sole purpose of cutting the timber or having it cut for sale by others.
The applicants, having given the above affidavits, did clear part of the lots but did not comply with the statutory condition of permanent residence and letters patent could not be granted.
On the 2nd July, 1918, an order in council was passed declaring these lots to be unsuitable for settlement and that they could be sold without conditions for a sum of $2.00 an acre. This price was paid by the appellant and letters patent were issued to him. respondent then brought an action to enforce his contract.-Held, that the contract had been made with the intent of effecting a result contrary to the policy of the statute concerning colonization lands and was null and void ab initio, and that the subsequent order in council did not render such an agreement valid.- Judgment of the Court of King's Bench (Q.R. 30 K.B. 372) reversed.
PARADIs.................
2-Timber-Licence to cut-Option to cut or not cut-Payment of stumpage dues without cutting-Operating in subsequent years-Claim of anticipated payments.] Licences for lumbering on Crown lands in New Brunswick contain a regulation passed by the Lieutenant Governor in Council which provides that the licensee may be required to cut, annually, at least 10,000 superficial feet of lumber for each square mile of his holding with the CROWN LANDS-Concluded.
option in any case of paying the stumpage that would be due on the required quantity and not cutting.-Held, that a licensee who, for one or more years, had elected to pay and not cut is not entitled to have the amount so paid deducted from the stumpage fees due to the Crown when he eventually operates over the limits.
KINo...........................
DEBTOR AND CREDITOR-Banks and banking-Whole output hypothecated to bank-Part given as security for outside
Bank's
Liability account.] The R. Co., pulp manufacturers, being indebted to the appellant bank, had hypothecated to it their whole output. Respondent made a loan to
R. Co. of $5,000; and, as security, R. Co.
undertook to pay him "$10 per ton from the proceeds of each ton of pulp manufactured sold."
This agreement was marked approved by the bank.
All the proceeds of pulp sales were deposited in the appellant bank to the credit of
R. Co.
Certain sums were paid to respondent by the bank, pursuant to this agreement; but later the bank refused to honour cheques drawn by R.
Co. in favour of the respondent who brought action against the bank.- Held, that the appellant bank was liable to account to the respondent for $10 per ton from the proceeds of pulp sales actually received by it from R. Co.- Per Duff J. and semble Anglin J. Such agreement was an equitable assignment to the respondent of $10 per ton of the proceeds of pulp sales received by the appellant bank.-Per Anglin and Mignault JJ. This agreement created an equitable charge on such proceeds to the extent of $10 per ton.-Judgment of the Court of Appeal ([1921] 1 W.W.R.
456) affirmed.
2-Assignment of claim- Notice debtor-Constructive notice.] Notice the solicitor of a debtor that the claim against the latter was to be paid to a third party is notice to the debtor himself that such claim had been assigned.- Per Duff J. The information given to the solicitor and placed before the debtor constituted notice.
ESTOPPEL...................... EVIDENCE - Will - Execution - Testamentary capacity-Reading of the will - Requisition of witnesses -Probate- Res judicata-Art. 851
The day before his death, the testator made the following will: "I this day will my entire estate and all other effects to my wife Alice Wynne," the appellant. He was suffering from Bright's disease, and, to alleviate pain, morphine was administered each day at a.m. and 8 p.m. The evidence of the attending doctor was that the effect of the narcotics would last two or three hours after the injection had been given. The circumstances the execution of the will were related The testator at first opposed to making a will, because he thought he would get better and also that it was unnecessary as he was the opinion that his estate would go to his wife without it; but later on, he agreed to do so.
Two days before his death, the will was drafted in pencil by an intimate friend of the deceased, copied by the appellant and shown to the testator at about p.m. and again the next morning.
The testator assented to it.
Between 2 and o'clock on the afternoon of the same day, the appellant handed the will to her husband who signed it without assistance.
The appellant and the two witnesses to the will testified that the deceased was then compos mentis. - Held, Duff J. dissenting, that the evidence sufficiently establishes that the will expressed the true wishes of the testator and that he at the execution, the more so as the will was simple and the disposition by the testator of his property to his wife was reasonable the circumstances.-Before execution of the will, the appellant requested the attendance of two witnesses; and when they were at the testator's bedside, she asked them aloud if they "would witness the execution the will."
The appellant then handed her husband the will and he signed it. Then the witnesses immediately signed in the presence of the testator.- Held, that the signature by the testator implies both knowledge by him of the fact that he was executing his will and a request to the witnesses to act as such; and this implied recognition a sufficient compliance with Article 851 C.C. Duff J. EVIDENCE-Continued.
expressing no opinion.-Per Mignault J.
Probate of a will, not being conclusive of its validity is not res judicata even against a party who appeared objected to the probate.
2 - Admissibility - Corroboration - Conveyance - Security for advances - Continuing agreement.] A contract made in Jan. 1914 recited. that McK. had agreed guarantee repayment advances made and to be made to B., that he had agreed to buy from B.
lumber to be cut and manufactured during the year and as security for the guarantee he was to receive title to the property from which the lumber was to be cut. The contract then provided that B. would completely lumber the property and deliver all the lumber to
McK. at a price to be settled or, in default of agreement, on consignment for sale on the customary commissions.
B. eventually paid all the advances and demanded a reconveyance from appellant (McK.
having died) which was refused on the ground that all the lumber had not been cut and delivered.
In an action for an order directing the appellants to reconvey and for damages B. tendered evidence of a representation made by McK. when the agreement was presented and he objected to the requirement to cut all the lumber that the meaning of it was that McK.
would hold the lumber until paid all the advances with interest; that B. could not sell any until enough was cut to pay him off.
The evidence was admitted and the trial judge, accepting it as true, gave judgment for a reconveyance and damages to be assessed.
On appeal from the Court en banc affirming his decision.- Held, per Davies C. J. and
Idington
J., that the evidence admissible and sufficiently corroborated by the provisions of the document.- Per Idington J. The document was a mortgage with the usual right of redemption and respondents were entitled to succeed without this evidence.-Per Duff
J. Parol evidence is always admissibl when its object is to show that the transaction is one of loan and that the conveyance though absolute in form is intended be security only.
Anglin J. The contract was not ambiguous and the evidence not admissible for the reason that it needed explanation.
EVIDENCE-Concluded.
But it could be received to support a claim for reformation or a plea of estoppel based on misrepresentation innocent or fraudulent. The corroboration relied on below was too slight to satisfy the provision of the Nova Scotia Evidence Act but the admission by the appellants that for the purposes of the action they should be deemed to be in the same position as if McK. was alive and was the defendant obviated the necessity for any corroboration.-Per
Mignault J. Two courts having received and believed the evidence of B. and held that there was sufficient corroboration of it, the decision appealed against should stand. McKEAN v. BLACK................. - Seduction - Indecent assault - Damages.-Sec. 13 Cr.
In an action framed for damages for indecent assault, although the plaintiff's evidence of force and want of consent on her part is discredited, the court can, nevertheless, accept her evidence that the defendant is the father of the child and find that there was seduction.
Cassels J. (dissenting)
.-Judgment of the Court of Appeal (14 Sask. L.R. 117) reversed, Cassels J. dissenting.
EXCHANGE - Broker - Speculation in foreign stocks-Adverse rate of exchange- Dealing in margins-Profit to customer- Right to exchange profit.] In the absence of any agreement to the contrary, or of a custom of the stock market of which he is, or is presumed to be, aware, the customer of a Canadian broker who buys and sells for him, through an agent in New York, United States stocks on margin is entitled to have his profits paid in American currency and so get the benefit of the adverse rate of exchange between the two countries.
BICKELL..................... HIGHWAY - Municipal corporation - Road allowance-Private land fenced back of boundary................... See MuNCIPAL 3. INSOLVENCY - Statute of Elizabeth - Firm's moneys paid for private debt- Bona fides of private creditor-Rtghts of Quebec curator in Nova Scotia.] A business firm in the Province of Quebec on the eve of insolvency obtained an advance from their bankers of $2,000 to purchase INSOLVENCY-Concluded.
property on behalf of the firm in Nova
Scotia. One of the partners forwarded the money to his sister in Nova Scotia requesting her to purchase the property in question in her own name and retain the same in satisfaction of a promise previously given her by him to reimburse her for certain advances made and services rendered.-In an action brought in a
Nova Scotia court by the curator of the insolvent firm appointed by a Superior
Court in Quebec.-Held, affirming the judgment of the Supreme Court of Nova
Scotia, that the curator was entitled to have the transaction set aside and the lands purchased treated as part of the insolvent's estate.-Held, per Duff J.
The equitable interest of the insolvent in real estate in Nova Scotia could only be vested in the curator by some process effective under the law of that province.
His Lordship did not wish to be deemed to sanction the view that it would vest, virtute officii, in a curator appointed pursuant to an abandonment of property under the provisions of the Quebec Code of
Civil Procedure.
2 - Special leave to appeal - Petition to sue in name of trustee............
INSURANCE - Automobile policy - Construction-Conveyance on ferry-Special risk.]
A policy insuring an automobile provided that "this policy is extended to cover the insured" while on a "ferry or inland steamer" subject to the condition "while being transported in any conveyance by land or water-stranding, sinking, collision, burning or derailment of such conveyance, including the general average and salvage charges for which the insured is legally liable."-Held, reversing the judgment of the Appellate
Division (48 Ont. L. R. 428) Davies
C. J. and Idington J. dissenting, that the liability of the insurer only attached in the case of loss or injury from one of the specified causes, stranding, sinking, etc., and did not extend to the case where the automobile was damaged by falling into the water between the end of a ferry-boat and the wharf.
INTEREST - Legacies - "Without interest"..........................
See WILL 1.
LEASE - Resiliation clause - Ejectment -Sale - Subrogation - Notice-Change- Registration - Articles 1608, 1609, 1642 1657, 1663, 2128, C.C.]
An unregistered written lease of real estate by H. to S. reserved the right to terminate the lease in case of a sale of the property, by giving three months' notice. At the expiration of the term, five years, the lease was extended for three years, terminating 1st of May, 1915, upon the same conditions.
Subsequently H. sold the property to M. subject to the lease; and M. afterwards sold it to F. with subrogation in all his rights under the lease then current and an undertaking that the lease would be cancelled on 1st of May, 1913, and the premises then vacated.
M. notified S. of this sale, requesting him to pay the rent to the purchaser, and, on Lhe 29th of January, 1913, H. and M. gave notice to S. of cancellation of the lease to take place the 1st of May following. F. gave no notice but continued to collect the rent until the end of April following. In an action by F. for the ejectment of S.- Held, Idington and Anglin dissenting, that the lease should be declared cancelled.-Per Fitzpatrick C.J. and Brodeur J. Under the provisions of Articles 1663 and 2128 C.C., the lease exceeding one year which has not been registered cannot be invoked against a subsequent purchaser.
Idington and Anglin contra.- Per Fitzpatrick C.J., Idington, Anglin and Brodeur JJ. As the rights of the lessor had passed to the subsequent purchaser, cancelling could be demanded by him under the stipulation in the lease in favour of the original lessor; and Fitzpatrick C.J. and Brodeur J. The notice of cancellation given by H. and M. was effective in favour of F., Idington and Anglin JJ. contra.-Per Anglin J. The plaintiffs, having acquired the property expressly subject to the defendant's lease and taken subrogation to the lessor's rights thereunder, cannot invoke Article 2128 C.C. to avoid such lease.-Judgment of the Court of Review (21 R.L. N.S. 96) affirmed, Idington and Anglin
JJ. (dissenting)
.
ST.
2 - Annulment - Series of actions - Appeals
- Discontinuance - Chose juge-Right of ejection by subsequent tenant-Arts. 1031, 1241 C.C.]
St. D. and the heirs of L. were co-owners of an hotel property, the interest of St. D. LEASE-Continued.
being seven-eighths.
In March, 1914,
St. D. declaring that he was acting personally and on behalf of the heirs
L., rented the hotel to G. and the lease expiring on the 30th of April, 1920.
On the 20th of February, 1920, St. D.
acting as above leased the same property to the respondent for a term of five years. After having on the 24th of
March, 1920, guaranteed the heirs L.
against all losses and expenses, G. and
S. obtained from them, on the 8th of
April, 1920, a lease. similar to the one given by St. D. to the respondent.
On the 24th of April, 1920, G. and S. brought an action against St. D. as defendant and against the heirs L. and the respondent as mis-en-cause, asking for a lease on terms similar to those obtained by the respondent and for the annulment of the lease given to the latter; and on the same day, an action was instituted by the heirs L. against St. D. and the respondent attacking the lease which
St. D. had granted in their name to the respondent.
On the 14th of May, 1920, the respondent took the present action against St. D., the heirs L., and G. and
S., asking to be put into possession of the hotel premises which were not vacated by G. and S. The three actions were united for enqudie; but three different judgments were delivered, first two actions being dismissed and the third maintained.
In the first action, the judgment, though not dealing with the lease given to respondent, declared that
G. and S. had no status as lessees by virtue of the lease given to them by the heirs L.; in the second action, it was held that, St. D. being the authorized agent of the heirs L the lease to the respondent was valid; and the third judgment gave the respondent the right to obtain possession of the hotel. These three judgments were inscribed in appeal before the Court of King's Bench; but later on, a declaration of discontinuance
(ddsistement) was fyled in the first two actions.
The respondent presented a motion before the appellate court to quash the appeal on the ground of chose jugde; and a similar motion was made before this court.-Held, that it is chose jugde against all the appellants that G.
and S. had no rights as lessees of the hotel, and against the heirs L. that the lease given by St. D. to the respondent was valid.-Held, also, that the respond- LEASE-Concluded.
ent, a subsequent tenant, had the right to maintain an action to eject G. and S., former tenants, as the respondent was thus exercising the rights of his lessors under Article
1031 C.C.-Per Anglin J. The right to have the lease given to respondent declared invalid for want of authority in St. D. belonging solely to the heirs L., the effect of chose jughe on that point against them is equivalent to ratification of the lease by them before this action was begun; such lease thus became valid as against everybody who had not theretofore acquired an interest- in the property inconsistent with its enforcement; and as it is chose jugee against G. and S. that they have no such interest, the lease is valid against them.-Per Mignault and Bernier JJ. Though the validity of the lease given to respondent is not chose jugde as to G. and S., they cannot, for alleged want of concurrence by the heirs L., attack that lease which was declared valid as against the co-owners of the property, the general rule being that no one can set up a right belonging to another-"nul ne peut exciper du droit d'autrui."-Judgment of the Court of King's Bench (Q.R. 31 K.B. 256) affirmed. LAFERRIERE v. GARIEPY............557 LIBEL-Demand for payment of account- Criminal Res judicata.] To a demand by F. payment of an account K. replied by pointing out errors demanding payment of the amount of a cheque drawn by a third party in the felonious conversion of which, he alleged, F.'s wife took part and that the rights in said cheque had been transferred to him.-Held, Duff and Mignault JJ. dissenting, that any privilege which attaches to K.'s letter as a reply to a demand for payment of an account does not extend to the portion containing the criminal charge, there being no proof that K. possessed any rights in respect to said cheque or had any interest in making such charge.-On appeal from the result of a former trial of this case the Supreme Court of Nova Scotia held (53 N.S. Rep. 406) that the whole letter was privileged but ordered a new trial of the whole case on the ground that the question of malice should have been left to the jury.-Held, Duff J. dissenting, that as the order was for a new trial LIBEL-Concluded.
without restriction, and the evidence given on the former trial is not before the court, the question of privilege is
.
not res judicata by the decision of the provincial court.-Per Duff J. When a court, in granting a new trial, decides a substantive question in the litigation, that question, for the purposes of that.
litigation, is to be taken to have been conclusively determined as between the parties.
v. FISHER.........
MUNICIPAL CORPORATION
-Appeal-Jurisdiction-Title to lands- Procks-verbal-Opening of road-Expropriation-R.S.C., c. 135, s. 46 "Supreme
Court Act."]
In an action to quash a procs-verbal passed a municipal council for the purpose of opening a road and acquiring land by way of expropriation or otherwise, the controversy relates to a title to lands and an appeal lies to the Supreme Court of Canada.
Idington J. (dissenting)
. Murray v. Town of
Westmount (27 Can. S.C.R. 579) followed.
LA EST
- Riot - Damages - Statutory liability-Prescription of action - Notice of action-Art. 983 C.C.-Art. 177 C.C.
P.-Arts. 310 and 561, Charter of the
City of Quebec-(C.) 1853, 16 Vict., c.
233-(C.) 1865, 29 Vict., c. 57, s. 39- (Que.) 1892, 55 & 56 Vict., c. 50-(Que.)
1907, 7 Ed. VII., c. 62-(Que.) 1916,
6 Geo. V., c. 43, 8. 11.]
By c. 233 of 16
Vict., a statutory liability was imposed upon the city appellant "in case of injury to property by any mob or during riots in the said city," and this statute has never been expressly repealed.
Article
310 of the charter of the city of Quebec, as enacted by s.s. 16 of sect. 39 of 29
Vict., c. 57, gives to the city appellant the power to pass a by-law providing for the payment of damages caused to property by riot; and it also declares that if such a by-law is not passed within six months from the day of the riot, the party who has suffered damages has a right of action against the city appellant.- Held, that there is no incompatibility between the provisions of the two statutes, and that, under both, the city appellant is liable for the damages to property by a mob, even without any fault or negligence on the part of the appellant.-Article 561 of the Charter of
MUNICIPAL CORPORATION-Cont'd. the City of Quebec provides that "every action, suit or claim against the city is prescribed by six months counting from the day when the right of action arose," and that notice of action should "be previously given to the city within thirty days from the date on which the cause of the damage happened."-Held, that the provisions of article 561 do not apply in a case of liability such as that enacted by article 310 of the charter of the city appellant.-Judgment of the Court of King's Bench (Q.R. 30 K.B. 281) affirmed.
CITY - Road allowance - Highway-Private land fenced back of boundary-Municipal Act, R.S.O. [1914] c. 192, s. 478-Surveys Act, R.S.O. [1914] c. 166, s. 13.] Owing to a dispute between a municipality and M. as to whether or not some of the land claimed by the latter was part of the highway the Municipality applied to the Department of Lands, Forests and Mines for a survey which was made and confirmed by an order of the Minister. M. then moved his fence to the boundary thereby established.-Sec. 13 (4) of the Surveys Act provides that "the order of the Minister confirming the survey shall be final and conclusive upon all persons and shall not be questioned in any court."
In an action by M. to restrain the municipality from tearing down his fence the latter invoked the provisions of sec. 478 of the Municipal Act that where a municipality desiring to open an original road allowance by mistake opens a road not wholly upon such allowance the private land included shall be deemed to be expropriated-Held, per Davies C.J. and Anglin and Mignault JJ., that the road allowance in this case was opened long before any such provision placed in the Municipal Act and see. 478 could not be invoked. The order of the Minister confirming the survey was conclusive and the boundaries established thereunder must be accepted.-Per Idington and Brodeur JJ., that the order of the Minister is final and the municipality cannot claim any boundary other than that established by the survey.-Per Duff J. The appeal should be dismissed for the reasons given by Mulock C.J. in the appellate division.-Judgment of the Appellate Division (48 Ont. L.R. 459) affirmed.
Collision - Tramways
-Right of way-By-law-Obligation to look-out-Jury trial-Misdirection.] The appellant, while driving an automobile, was injured by collision with a tram car operated by the respondent.
In an action for damages, the jury found that both the appellant and the respondent were at fault. Evidence was adduced of a by-law giving the street car a right of way over other vehicles; and the trial judge in his charge said in substance that this by-law relieved the motorman when travelling at a proper rate of speed, from the obligation to keep a look-out.-Held,
Idington J. contra, that this was misdirection; but-Held, also,
Duff J.
dissenting, that in view of the findings of the jury, read in the light of the evidence, no substantial wrong or miscarriage resulted therefrom.
CITY
2-Railway-Level crossing-Approaching train-Absence of statutory warnings- Failure to look out-Negligence of driver- Action injured passenger.] The respondents, father and daughter, while driving in a motor car, were about to cross the appellant's railway at rail level, when a train was approaching. The father, who was driving, heard the horn of an automobile behind him, and thinking the driver wished to pass, he proceeded to cross the track, the road being very narrow at that point. The train struck the motor car and the respondents sustained injuries for which they both brought action.
The train whistle was not sounded or bell rung as required by statute. The father swore to his belief that he did look for the train, because he always did so instinctively; but he did not "remember actually turning (his)
head and looking to see if there was a train or not."
The trial judge took the case from the jury on the ground of contributory negligence, but the Court of ordered a new trial.-Held,
(reversing the judgment of the Court of
Appeal), Idington and Anglin JJ. dissenting, that, notwithstanding assumed negligence of the appellant owing to the absence of statutory warnings, the father must be held negligent in attempting to cross the tracks without looking for the approaching train, as no evidence was given of circumstances which would warrant a jury in finding he was excused from doing so.-Held,
NEGLIGENCE-Continued.
also, (affirming the judgment of the Court of Appeal), that the contributory negligence of the driver of a motor car, when he is neither the servant nor the agent of a passenger injured, is no defence in an action brought by the latter against the party causing the accident; and the action of the daughter should not have been dismissed by the trial judge.- Judgment of the Court of Appeal (13 Sask. L.R. 535), varied.
3---Contract of sale-Fire-arm-Latent defect - Injuries - Liability-Delictual fault-Articles 1053, 1070, 1491, 1522, 1527 0.0.] The appellant was a manufacturer of sportsmen's rifles which, when placed by him on the market, were properly assembled and of good material and workmanship. His is the only make of bolt-action rifle which can be fired with the bolt unlocked though appearing to be locked. To prevent rust, the guns were heavily oiled by the manufacturer and purchasers were warned to wipe them out before using. In order to do this the bolt had to be taken apart but no instructions were given by the manufacturer as to the manner of reassembling the parts. Each of the respondents was injured by the bolt of one of these rifles being driven back through the breach when it was used by him for the first time after its purchase.-Held, Brodeur J. dissenting, that, even assuming that each of the respondents had improperly assembled the parts of the bolt after cleaning it as instructed, the fact that the rifle would fire when the bolt was unlocked while apparently locked, constituted a latent defect and source of danger in the rifle and the failure of the appellant to take any reasonable steps to warn purchasers against that latent danger equivalent
"fault," "neglect" and "imprudence" within the purview of Art. 1053 C.C.-Per Brodeur J. (dissenting).
Fault is either contractual or delictual, and delictual fault cannot be found in an action based on a contract. The appellant was not guilty of any contractual fault, the alleged defect of the rifle not being a latent defect within the purview of article 1522 C.C. The appellant was not liable for an apparent defect (art. 1523 C.C.) and he was not legally bound to warn pur- NEGLIGENCE-Concluded.
chasers as to the way of assembling the parts of the rifle (Art. 1491 C.C.)- Judgment of the Court of King's Bench
(Q.R. 29 K.B. 476) affirmed, Brodeur J.
dissenting. Ross v.
Ross
EMERY.........................
ORDER IN COUNCIL - Retroactive effect-Crown lands-Sale of timber. . 217
PRACTICE OR PROCEDURE....
RAILWAY-Constitutional law-Provincial railway-Operation by provincial government-Removal of directors-"Work for general advantage of Canada"-Express declaration-Lease to Dominion Government.] Where the government of a province is authorized by the legislature to assume control of a provincial railway its act of removing the directors and appointing others is intra vircs of its powers.-If, under the provisions s. 92, s.s. 10 (c) of the B.N.A. Act, a provincial public work can be made a
"work for the general advantage of
Canada" without an express declaration by parliament therefor a lease of it to, and its subsequent operation by, the
Dominion Government is not equivalent to such a declaration.
But; - Idington and Duff JJ. expressing no opinion, that the express declaration is necessary in every case.
- Negligence - Level crossing - Approaching train-Absence of statutory warnings-Failure to look out- Negligence of driver-Action by injured passenger.]
The respondents, father and daughter, while driving in a motor car, were about to cross the appellant's railway at rail level, when a train was approaching.
The father, who was driving, heard the horn of an automobile behind him, and thinking the driver wished to pass, he proceeded to cross the track, the road being very narrow at that point. The train struck the motor car and the respondents sustained injuries for which they both brought action. The train whistle was not sounded or bell rung as required by statute. The father swore
RAILWAY-Continued.
to his belief that he did look for the train, because he always did so instinctively; but he did not "remember actually turning (his) head and looking to see if there was a train or not."
The trial judge took the case from the jury on the ground of contributory negligence, but the Court of Appeal ordered a new trial.- Held, (reversing the judgment of the Court of Appeal), Idington and Anglin JJ. dissenting, that, notwithstanding the assumed negligence of the appellant owing to the absence of statutory warnings, the father must be held negligent in attempting to cross the tracks without looking for the approaching train, as no evidence was given of circumstances which would warrant a jury in finding he was excused from doing so.-Held, also,
(affirming the judgment of the Court of Appeal), that the contributory negligence of the driver of a motor car, when he is neither the servant nor the agent of a passenger injured, is no defence in an action brought by the latter against the party causing the accident; and the action of the daughter should not have been dismissed by the trial judge.- Judgment of the Court of Appeal (13 Sask. L.R. 535), varied.
........ 3-Statute-Application-Railway Company-Carriage of traffic-Personal baggage-Limitation of liability-Powers of Board of Railway Commissioners-Railway Act R.S.C. [1906] c. 37, s. 340.] sec. 340 of the Railway Act a railway company cannot, by contract or otherwise, limit its liability in respect to the carriage of traffic unless authorized by the Board of Railway Commissioners; the Board may, by regulation, determine the extent to which the liability may be limited (s.s. 2), and it may prescribe the terms and conditions under which any traffic may be carried.-Held, affirming (48 Ont. L.R. 237) that a regulation, providing that a carrier shall not be liable for loss of or damage to personal baggage caused by negligence or otherhundred dollars unless greater values are declared and extra charges paid at time checking, is intra vires of the Co....... 328 RAILWAY-Concluded.
Carrier - Liability - Carrier or wvarehousemen- Notice to owner.] A condition in the bill of lading for carriage of goods by the C.P.R. Co. to New York under a joint tariff was that the company would be liable for loss of, or injury to, the goods caused by the negligence of another carrier from which the latter was not relieved by the terms of the bill of lading. The goods were lost while in the custody of the other carrier after they arrived in New York.-Held, that the onus was on the C.P.R. Co. of showing that the loss was not caused by negligence or, if it was, that the other carrier relieved from liability.
Another condition was that if the goods were not removed within forty-eight hours after written notice had been given of their arrival the carrier could keep them on its premises and be responsible as warehouseman only or, at its option, after giving notice of its intention to do so, place them in a public warehouse at the risk of the owner and be free from liability.
The goods were kept on the premises for a few days after notice of their arrival was given to the consignee and then, without further notice, were placed in a public warehouse where they became unfit for sale and were abandoned by the owner.-Held, that the carrier was not relieved by the terms of this condition;
the goods were not kept on the premises and so the liability was not that of a mere warehouseman; and it was not relieved from liability by placing them in a public warehouse as no notice was given of its intention to do so.
Co. HATFIELD.........
RES JUDICATA-Probate.........
See WILL 2.
2-Libel
- Reply - Privilege - 3- Lease-Series of actions-Appeals- Discontinuance....................
RIGHT OF
WAY-Conveyance
Covenants-Defined road-Maintenance- Subsequent destruction of road-Impossibility of performance...............
SALE OF GOODS-Contract-Time for delivery-Extension-Breach-Measure> of damages-Substituted contract.] By a contract entered into in April, 1917, S. agreed to purchase a specified quantity of chrome ore from the Black Lake Co., delivery to be completed on Nov. 1st. The ore was not delivered on that date though S. had been urging expedition and had offered to extend the time and in October the company wrote S. that material shipments could not be made for some months and suggesting that the contract be cancelled, which S. refused to do. There was no formal extension. November conversations took place between S. or his representative and the manager of the mines which ended in the latter undertaking to deliver the ore as fast as it could be got out. The delays continued with S. still urging expedition until June, 1918, when the company wrote that no further deliveries would be made.
In an action by S. for damages the breach of contract was admitted the only question being its date and the consequent measure of damages.-Held, Division reversing the judgment of the Appellate (48 Ont. L.R. 561) that there was no breach of the contract before June, 1918; that there was no new contract entered into as. a result of the conversations that took place in November, 1917, but the parties acted throughout on the basis of the original agreement made in April, and that the measure of damages was the difference between the contract price and the value of the ore in June, 1918.
2- Negligence-Fire-arm-Latent defect- Injuries-Liability-Delictualfault. . . 393 SALE OF LANDS-Covenant-Conveyance of right of way-Defined road- Maintenance-Subsequent destruction of road-Impossibility of performance.] Where, in a deed of land bordering on Lake Erie, the vendor grants to the vendee a right of way over a defined road with a covenant to maintain said road and keep it in repair the destruction of the road by encroachment of the waters of the lake excuses him from restoring it or providing a substituted right of way when there is nothing to show that the parties intended to agree therefor. KER- HARRISON ...............
SALE OF LANDS-Concluded.
2-Company-Implied powers-Exercise of option - Specific performance.] The charter of a pulp and paper company empowered it to purchase and hold lands, mill privileges, growing timber and other property.-Held, that from this power to purchase the power to sell is implied having regard to the nature of the business to be carried on.-Held, also,
Duff J. (dissenting)
and Cassels J. expressing no opinion, that the company could sell all the property so acquired as long as it did not dispose of its whole undertaking.-M. obtained from the company a lease of all its real and personal property with an option to purchase the same at any time during the term. He assigned the lease to B. who agreed in writing that if he exercised said option he would convey to M. a quarter interest in the property he acquired.
B. did not formally exercise the option but with intent to defraud M. he acquired enough stock in the company to give him control. In an action by M. for specific performance of the agreement to give him a quarter interest.-Held, Duff and Cassels JJ.
dissenting, that B. having complete control by his acquisition of the stock in fact exercised the option to purchase and may be compelled to procure the conveyance necessary to vest in M. the quarter interest to which he is entitled.
Per Duff J. The option to purchase was ultra vires of the company; it dealt with all the land, etc., which the company was authorized to acquire and the powers given the company by its charter made it an undertaking in which the public must be presumed to have an interest; in such case the sale of all the land, the whole substratum of the undertaking, which the charter does not authorize would be an interference with the carrying out of the undertaking as authorized by the legislature and must be deemed to be prohibited.
......
3-Subrogation- Notice - Change - Registration - Lease - Resiliation clause
-Ejectment....................
SCHOOL COMMISSIONERS -Powers
-Purchase of built property-Sanction of
Lt. Gov. in Council-Illegality-Appeal to
Circuit Court-Arts. 358, 1472, 1533, 1777,
2009, s. 8, C.C.-Art. 50 C.C.P.-Sections
2610, 2635, 2707, 2709, 2723, 2724, 2727,
SCHOOL COMMISSIONERS-Conc'd. 2746, 2787; 2903, 2981, 2982, 2988, 2990 R.S.Q.]
The appellants brought an action to annul a resolution passed by the respondents, purporting to authorize the purchase of a hotel property for school purposes.-Held, that the respondents were authorized, under sections 2635 and 2723 R.S.Q., to make such purchase without the sanction of the Lieutenant Governor in Council, such power not being restricted by section 2724 R.S.Q.- Per Brodeur and Mignault JJ. The proper remedy to quash the resolution was an appeal to the Circuit Court under section 2981 R.S.Q., and not an action in the Superior Court under the supervisory power conferred by article 50 C.C.P.
SEDUCTION
Evidence - Indecent assault-Damages. Sec. 13 Cr. C.] an action framed for damages for indecent assault, although the plaintiff's evidence of force and want of consent on her part is discredited, the court can, nevertheless, accept her evidence that the defendant is the father of the child and find that there was seduction. Cassels J. dissenting.- Judgment of the Court of Appeal (14 Sask. L.R. 117) reversed, Cassels J. dissenting.
SPECIFIC PERFORMANCE...... STATUTE-Application-Railway company-Carriage of traffic-Personal baggage-Limitation of liability-Powers of Board of Railway Commissioners-Railway Act R.S.C. [1906] c. 37, s. 340.] sec. 340 of the Railway Act a railway company cannot, by contract or otherwise, limit its liability in respect to the carriage of traffic unless authorized by the Board of Railway Commissioners; the Board may, by regulation, determine the extent to which the liability may be limited (s.s. 2), and it may prescribe the terms and conditions under which any traffic may be carried.-Held, affirming (48 Ont. L.R. 237) that a regulation, providing that a carrier shall not be liable for loss of or damage to personal baggage caused by negligence or otherwise to an amount greater than one 1NDEX.
STATUTE-Concluded.
hundred dollars unless greater values are declared and extra charges paid at time of checking, is intra viress of the powers
Board.
2-Prescription-Notice of action. . 241
3-Canada Temperance Act-Retroactive legislation........................
STATUTES
B.N.A. Act 92, s.s.
B.N.A.
Act s.s.
92, 121...........................
R.S.C. 37, s. 340 (Railway Act)
.................................
R.S.C. 79 (Companies Act)..
R.S.C. s. 46 (Supreme Court
.............................
(D) Vict., 233 (Quebec city charter)
.................................
(D) 29 Vict., s. 39 (Quebec city charter)
...........
.........
(D) 55-56 V., 29, 258 (Criminal
Code)............................
55-56 V., 29, 262 (Criminal
Code)............................
9-10 V., 36, s.s. 35 and 74, s.s.
(Bankruptcy Act)................
V., s. 36 (Supreme
Court Act).......................
STATUTES-Concluded.
(D) 10-11 V., 32, s. (Supreme Court A ........................
10-11Geo. V., 46 (Dominion Elections A .............................
(Surveys Act) ......................
...........
R.S.Q. s. 478 (Municipal A ct).............................
R.S.Q. s. (Crown lands). . R.S.Q.
s.s. 2610 to 2990 (Public instruction) .......................
R.S.Q. s. 3438, 3455, 3459 (Criminal procedure) .........
; ..............
55-56 V., 50 (Quebec city charter) ............ Ed. VII., (Quebec city charter) ........... 6 s. (Quebec city charter).......................... (Alta.) 7Geo. V., c. (The Liquor Act) (Alta.) 8 V., c. (The Liquor Export Act) .............................
STATUTE
OF FRAUDS-Memo. writing-Implied terms ............
TEMPERANCE LEGISLATION.... TIMBER-Crown lands-Licence cut- Option to cut or not cut-Payment of stumiage dues without cutting-Operating
.in subsequent years-Claim of anticipated payments.] Licences for lumbering on
Crown lands in New Brunswick contain a regulation passed by- the Lieutenant
Governor in Council which provides that the licensee may be required to cut, annually, at least 10,000 superficial feet of lumber for each square mile of his holding with the option in any case of paying the stumpage that would be due on the required quantity and not cutting.-Held, that a licensee who, for one or more years, had elected to pay and not cut is not entitled to have the amount so paid deducted from stumpage fees due to the Crown when he eventually operates over the limits.
2-Sale of-Crown lands-Colonization lots
-Location tickets-Prohibition sell-Fraud
-Order in council-Retroactive effect..
TITLE TO LAND..........101,
TRAMWAY- Negligence-Right of way
By-law-Obligation to look out-Jury trial
- M isdirection....................
TREATY OF PEACE-Enemy property- Clearing offices - "Debts payable" - Relinquishment.] The Treaty of Peace
(Germany) Order, 1920, provided for the settlement through clearing offices of debts payable before the war and due by a national of one power to a national of the other and debts which became payable during the war to nationals of one power arising out of transactions or contracts with nationals of the other, execution of which was suspended, and by an annex to these provisions each power became responsible for payment of such debts due by its nationals.
An order of the Governor General in Council passed in 1920, after reciting that under the Treaty Canada has the right to liquidate certain enemy property vested in the Custodian (appellant) but power is reserved to relinquish any of the same, which power should be exercised respect to property of British born women who acquired German nationality by marriage only, provided that any such woman could apply to the Exchequer
Court for a declaration as to what
TREATY OF PEACE-Concluded. property formerly owned by her could be relinquished without rendering Canada liable to Germany under the treaty. Pursuant to this order the respective respondents applied to the Exchequer Court which declared that all their property could be relinquished as not constituting "debts payable before the war" or "debts which became payable during the war" within the terms of the treaty.
On appeal from such declaration.-Held, that deposits of money with the National Trust Co. for investment in securities, repayment of which was guaranteed on dates which fell during the war, are debts payable during the war within the meaning of the above provision of the Treaty and could not be relinquished.- Held, also,
Brodeur J. contra, that deposits in a Savings Bank and moneys invested with a Loan Co. to be withdrawn on notice and from the bank on presentment of the bank book also, are not "debts" it not being established that the right to such notice and presentment was abandoned.- Held, per Davies C. J. and Anglin and Mignault JJ., Brodeur J. contra, that moneys deposited with a trust company with instructions that all sums of capital and interest so received should be held by the company to the credit of the owner until further advice by her which was never given were not "debts payable" as provided by the Treaty.-Held, per Davies C. J. and Duff and Brodeur JJ., Anglin and Mignault JJ. contra, that dividends and interest from investments or securities which became payable during the war were "debts."-Per Duff J. The word "debts"
should receive a broad construction and includes moneys held under a legal or equitable obligation to pay at any time on demand.-Per Anglin and Mignault JJ. Interest on moneys placed with the National Trust Co. on guaranteed trust investment receipts is a "debt."-Idington J. did not. deal with the specific claims presented but was of opinion that there was so much doubt in respect to them that the court should report to the Governor in Council that no relief could be granted at present to either claimant. - Declaration of the Exchequer Court (20 Ex. C.R. 219) part.
PURCHASER-Contract-Verbal agreement-Letter sent purchaser containing it-Silence of the vendor-English doctrine of estoppel- Not part of the law in Quebec.] Where one of two parties to a verbal commercial agreement thereafter writes a letter to the other purporting to state the terms of a contract arrived at between them, the failure of the latter to repudiate such contract within a reasonable time does not de jure import an assent to it, and, in this case, the circumstances did not warrant that inference of fact from the silence of the recipient of the letter.- Per Mignault J. The doctrine of estoppel, as it exists in England and the common law provinces of Canada, is no part of the law in Quebec.
Interpretation
Condition precedent-Revocation - Residnary
Interest
Personalty
Question of costs.]
his will one
William Walsh, after bequeathing to the appellants the sum of $800 each, directed that the proceeds of two policies of insurance in two different companies should become part of his estate.
By a codicil, he further declared that "in order that there may not be any possible misapprehension in respect"
to the above bequests, "in the event of its being found that I have not effectually by the said will ordered that the moneys due under (one policy) and 'under (the other policy) should be and become part of my estate,
*
*
* the said bequests
*
* be and are hereby revoked."
The order of the testator as to the moneys payable under one policy was effectual, but as to the other was ineffectual.-Held, Mignault J. dissenting, that there being nothing in the context to warrant reading "and" as
"or", the courts must adhere strictly to the intention expressed; and as the condition precedent upon which revocation of the legacies was to take place did not come into existence, the legacies have not been revoked.-Per Mignault
J. dissenting.
As the testator did not succeed in making the moneys due under one of the policies a part of his estate the legacies have been revoked.-By another clause of his will, the testator bequeathed -"all the residue of my personal estate and effects" to certain persons therein designated "to be paid
WILL-Continued.
to them without interest when they reach the full age of twenty-one years." The question submitted to the court was whether the residuary legatees were entitled to the interest or income accruing from investments of the residuary personalty notwithstanding the words "without interest."-Held, that the legatees were entitled to such interest, as it remained' part of the estate and passed under the residuary bequest of personalty.-After having bequeathed all the residue of his personal estate and effects as above stated, the testator bequeathed "all my real estate of every kind and all my personal estate and effects unto my executors
* * * according to the nature thereof upon trust, that my trustees shall and will call in and convert (the same) into money *
*
*
: to pay my funeral and testamentary expenses and debts (and) the legacies bequeathed by this my will."-Held, that the testator's intention, by the direction for conversion, was not to make the proceeds of his real estate personalty so that it should, as such, fall within his residuary bequest; and the surplus of the proceeds, after the payment of the debts and legacies must pass as on an intestacy.-The executors of the will commenced this action by way of originating summons in order to submit the above questions arising upon the construction of the will for the opinion of the court. They were represented by counsel in the trial court and, being served with notice of appeal, before the Court of Appeal but the latter court refused them any costs.-Held, Duff and Anglin JJ. dissenting, that this court should not interfere with the discretion exercised by the Court of Appeal on a question of costs.
MILBURN v. GRAYSON....................... -Execution
- Testamentary capacity -Ev'idence-Reading of the will-Requisition of witnesses-Probate-Res judicata-Art. 851 C.C.]
The day before his death, the testator made the following will: "I this day will my entire estate and all other effects to my wife Alice Wynne," the appellant.
He was suffering from Bright's disease and, to alleviate pain, morphine was administered each day at 11 a.m. and 8 p.m. The evidence of the attending doctor was that the effect of the narcotics would last two or WILL-Continued.
three hours after the injection had been given. The circumstances of the execution of the will were related by the appellant. The testator was at first opposed to making a will, because he thought he would get better and also that it was unnecessary as he was of the opinion that his estate would go to his wife without it; but later he agreed to do so.
Two days before his death, the will was drafted in pencil by an intimate friend of the deceased, copied by the appellant and shown to the testator at about 5 p.m. and again the next morning.
The testator assented to it.
Between
2 and 3 o'clock on the afternoon of the same day, the appellant handed the will to her husband who signed it without assistance.
The appellant and the two witnesses to the will testified that the deceased then compos. mentis.- Held, Duff J. dissenting, that the evidence sufficiently establishes that the will expressed the true wishes of the testator and that he was compos mentis at the time of its execution, the more so as the will was simple and the disposition by the testator of his property to his wife was reasonable under the circum- WILL-Concluded.
stances.-Before the execution of the will, the appellant requested the attendance of two witnesses; and when they were at the testator's bedside, she asked them aloud if they "would witness the execution of the will."
then handed her husband the will and he signed it. Then the witnesses immediately signed in the presence of the testator.-Held, that the signature by the testator implies both knowledge by him of the fact that he was executing his will and a request to the witnesses to act as such; and this implied recognition is a sufficient compliance with Article 851 C.C.
Duff J. expressing no opinion. Mignault J. Probate of a will, not being conclusive of its validity is not res judicata even against a party who appeared and objected to the probate. WORDS AND PHRASES
"Debts".........................
"Underwriting" ...................
Cases cited
- 1 W.W.R. 456 1 W.W.R. 456
- 1 W.W.R. 443 1 W.W.R. 443
Statutes and regulations cited
-
Bank Act
-
- section 121
- section 152
- section 101
- section 109
- section 153
- Sections 69
- Sections 247
-
- 262
- section 259
- section 262
- 258
- section 247
- Sections 446
- 777
- 778
- 825
- s. 2
- Section 1572