Majority
of Canada deciding that the word "Horlicks" could not be registered as a trade-mark to be used to designate goods sold by Horlick.
The appeal was heard ex parte, the Commissioner of Patents not appearing.
Harold Fisher and Smart for the appellants.
THE CHIEF JUSTICE.-This is an appeal from a judgment of the Exchequer Court on a petition by Horlick's Malted Milk Co. to register the surname "Horlick's" as a trade-mark to be used in connection with the sale of food products (ss. 5, 11 and 42 of the Act). The application was disposed of in the Exchequer Court apparently on the assumption that the facts alleged in its support disclosed merely a case of passing off and that the goods had acquired a reputation on the market by reason of the superiority of their manufacture and nothing more.
The grounds on which the minister refused the application do not appear, but his right to refuse to , Inr, register is limited by section 11 of the Act. Having carefully considered the different subsections of section 11 I assume that the minister exercised the powers conferred by subsection (e) of that section to the effect that the trade-mark for which registration was sought did not contain the essentials of a trademark properly speaking.
I am not quite clear as to what that language means but in any event both before and after the statute the office of a trade-mark was and is to point out the origin or ownership of the article to which it is affixed.
In the words of the English Act, 1905, section 9, a trade-mark is something. adopted to distinguish the goods of the proprietor of the trade-mark from those of other persons. Our statute, section 5, enacts that all names adopted by a person in trade for the purpose of distinguishing an article manufactured and offered for sale by him shall for the purposes of the Act be considered as a trade-mark. The evidence as I understand it, and I have read the affidavits with some attention, does not refer, as the judge below assumed, to the quality of the goods, but they establish that the word "Horlick's" has been used as a sign or symbol to indicate the origin or ownership of the goods to which it has been attached and, in the words of section 5, to distinguish the article manufactured and offered for sale.
In these circumstances I fail to see how the application to register should be refused on the plain language of the sections of the Act.
is applicable on the facts of this case.
But in Teofani's Case (1), it was held "that a surname is not necessarily incapable of being a registrable trade-mark."
It may , be registered for instance where it is as in this instance T C an uncommon name and its use has been so extensive that in fact it has become distinctive.
Here the affidavits shew that the trade-mark has been in actual use and that such user has been sufficient to render it distinctive; food products in packages bearing as a conspicuous identifying feature the word "Horlick" have been sold in the United States and in Great Britain and the Colonies for over forty years, the approximate number of packages sold each year amount to 7,500,000 and the annual cost of advertising has been almost $500,000.
. This case is distinguishable on the facts from the case of In re R. J. Lea's Trade-Mark and our statute differs from the British Act; but the Lea Case (1) is very instructive.
I am of the opinion that the appeal should be allowed and the prayer of the petition granted. J.-I concur in the result.
J.-I think this appeal should be allowed. The use of names seems expressly provided for by section 5 of the Trade-mark and Designs Act, as one of the devices which may be adopted for use by any person in his trade, business, occupation or calling for the purpose of distinguishing any manufacture, etc. Indeed it may by long use have become the most distinctive mark that the product of a man's manufacture can be recognized by.
The material before us indicates at least a prima facie right on the part of the petitioner to have this ,Ine name registered as its trade-mark.
The Minister may find some objection upon facts brought to his knowledge in any way which would entitle him, and might indeed render it his duty, under section 11 of the Act, to reject the application. We can only speak from what is before us.
The reference to English decisions is certainly not very helpful.
There is such a wide difference between the frame and express language of the English Act and ours, that decisions under the former are often more apt to mislead than help or to put us on our guard. In that Act in its latter form the use of names seems expressly to require the authority of the Board of Trade.
Under either Act, of course, the use of a name may so tend to mislead that the history of its use as well as possibility of it being a very common name in the country where the trade-mark is to be used must be looked at to avoid misleading.
The Weekly Notes and Law Times come to hand since this appeal was heard, contain notes of the decision of Mr. Justice Neville in Re William Crawford & Sons (1), where he held the application for registration should not proceed by reason of the name being a common one. He relied on the remarks of Lord Cozens Hardy M.R. in the Teofani Case (2).
All implied therein is very far from holding that the use of a name must be prohibited.
J.-I concur in the result.
J.-We have not had the advantage of hearing counsel in support of the order made by the learned judge of the Exchequer Court refusing the petition of the applicants for registration of a "specific trade-mark."
After giving to the consideration of the appeal the utmost possible care I am, with great respect, of the opinion that it should be allowed. The learned judge apparently misconceived the purport of the evidence adduced.- Its object was and its effect is not to establish that the products of the applicants "have acquired a reputation on the market by reason of their excellence" or "by reason of the superiority of their manufacture," but to prove that the use in connection with the advertising, packing and sale of them of the word "Horlick's" has been so extensive, so conspicuous and of such duration and persistence that the word has become distinctive of those products.
Having regard to the fact that the name itself is somewhat peculiar and uncommon and to the extent and nature of the user shewn, the objections usually made to the registration of the surname have not their customary force.
The effect produced by the user made by the applicants of the word "Horlicks" is that it has become associated with them. It has became a name "adapted to distinguish the goods as the goods of one particular maker." The facts in evidence appear to bring this case within the recent decisions in the cases of "Cadbury" and "Muratti" (1) which seem to me more closely in point than the two authorities cited by the learned judge. Reference may also be made to the Teofani Case (2). "The so-called trade-mark contains the essentials of a trade-mark properly speaking."
(R.S.C. ch. 71, sec. (e); Richards v. Butcher
I am of the opinion that upon a case such as that made in the record before us the English courts under I" re the somewhat narrower terms of their statute would direct that an application for registration should proceed. Having regard to the broader provisions of our Act-that
I think we should really be doing a serious injustice to the applicants, not compensated by any advantages to the public, if we were not to allow the- registration which they seek to be effected. In re Daimler (1). Appeal allowed. Solicitors for the appellant: Murphy, Fisher & Sherwood. A trade-mark registered in Canada consists of an anchor in connection with the initials or full name of "John de Kuyper & Sons" to designate liquor sold by that firm. In the United States "Bostons" indicates goods sold by the Boston Rubber Shoe Co., and "Bucyrus" steel made in a town of that name. Reporter. ACTION POSSESSOIRE-Lane-Common use-Prescription-Absence of title- Right of passage-Obstructions - Servitude.] After common use by them for more than thirty years, without interruption and animo domini, of a lane each of the owners of adjoining premises is, without other proof of title, presumed to be a co-owner thereof and is entitled to have an obstruction of the right of passage restrained by action in court.
Mignault J. (dissenting)
.-Per Mignault J.
dissenting-The appellants claiming a right of passage as a servitude, their action cannot be maintained; no documentary title has been shown and servitude cannot be acquired by prescription.- Judgment of the Court of King's Bench
(Q.R. 32 K.B. 311) affirmed, Mignault J.
dissenting.
......
AFFREIGHTMENT-Contract - Ships named under construction-Delay in completion-Impossibility of performance- Right of shipper to damages-Whether conditions as to completion implied- Express condition as to continuance of service.......................
APPEAL-Jurisdiction-Action en reddition de compte-Judgment ordering account-Final Judgment-"Supreme Court
Act"-R.S.C.
(1096) c. 139, s. 2, s.s.
In an action en reddition de compte, the judgment directing an account is not a "final judgment" within the provision of subsection (e) of section 2 of the "Supreme Court Act" as it stood prior to the amendment of 1920 (10 &
Geo. V. c.
CAR
Co. v. BIRD ............
Act.] On appeal in a case of assessment on land for 1921, the District Court Judge
48975-32
APPEAL-Concluded.
reduced the valuation on the land to an amount which would make the tax to be levied $800.
On further appeal the Ry. and Mun. Board restored the valuation of the Court of Revision, making the tax $2,050.
The owner of the land appealed to the Supreme Court Canada asking to have the judgment of the District Court Judge restored.-Held, that the amount in controversy on the appeal to the Supreme Court of Canada is not $2,050, but the difference between that and $802 the tax as fixed by the decision of the District Judge. Therefore, as such amount does not exceed $2,000 and no leave to appeal has been obtained the court has no jurisdiction, under the Act of 1920, to entertain the appeal.-The Ontario Assessment Act provides that "an appeal shall lie from the decision of the (Ry. and Mun.) Board *
*
* to a Divisional Court upon all questions of law."
Prior to the Act of 1920 an appeal to the Supreme Court of Canada could only come from the Court of last resort in the Province and on a question of law.
On appeal from the Ry. and Mun. Board as to the assessment for 1920.-Held, that the board was not the court of last resort in the Province and the Supreme Court had no jurisdiction.
v. RoYDs ........ ASSESSMENT AND TAXES-Railwaf Co.-Double taxes-Statutes of limitation Penalties-Exemption under " any statute ........ 26 - 2-Appeal - Amount in controversy- Court of last resort................. 3--Valuation roll-Fictitious valuation -Relief-Jurisdiction of Circuit Court- BANKING-Bills and notes-Estoppel- Note given to bank without consideration-Intention to deceive bank examiner-Liability of maker-Foreign law-Evidence experts.......
See NOTES.
BILLS AND NOTES-Bank and banking-Estoppel- Note given to bank without consideration-Intention to deceive bank examiner-Liability of maker-Foreign law
-Evidence by experts.] The appellant gave his promissory note, in renewal of a previous note given without consideration, to a bank in the state of Washington so as to create a false appearance of assets and deceive the bank examiner, the appellant receiving contemporaneously from the bank a written acknowledgment that there would be no liability.
Upon the insolvency of the bank the respondent, the Bank Commissioners of the State, sued the appellant upon the renewal note for the benefit of the bank's creditors.-Held, Idington J. dissenting, that under the law in force in the State of Washington, as proved by experts who referred to American statutes and precedents in support of their evidence, the appellant was estopped from raising a plea of want of consideration.-Per
Duff J.-If such evidence is conflicting or obscure the court may examine and construe for itself the passages cited by the experts.-Judgment of the Court of
Appeal ([19221 1 W.W.R. 646) affirmed,
Idington J. (dissenting)
.
...........
CARRIAGE OF GOODS-Claim for loss-Illegal purpose - Contravention of
Temperance Act-Action-Contract or tort.]
M. bought liquor in Montreal for shipment to Windsor, Ont., intending to re-sell it there in contravention of the Temperance
Acts. It was shipped over the C.P.
Ry. and arrived at Windsor where part of it was stolen before delivery.
brought action for the value of the portion not delivered.- Held, affirming the judgment of the Appellate Division (51 Ont.
L.R. 370) that whether the action is one ex contractu or ex delicto it is based on a breach of the obligation to deliver the goods and the plaintiff must fail as he has to rely on his own illegal act. The carrier being innocent of the offence against the law may set up this illegality as a defence.
v. THE
Ry. Co..................
CASES
Abbott v. The City of Saint John (40 Can. S.C.R. 597) fol................... 2- Attorney General of British Columbia v. Attorney General of Canada (21 Ex. C. R . 281) aff....................... 3-Bennett v. Shaw ([1922] 1 W.W.R. 993) aff.......................... 4-Boston Book Co. v. Canada Law Book Co. (44 Ont. L.R. 529; 48 Ont. L.R. 238) rev.......................... 5-Bothwell Election Case (8 Can. S. C.R. 576) ref to................... 6-Canadian Trading Co. v. Canadian Government Merchant Marine Ltd. ([1922]) 1 W .W .R. 662) aff ................ 7- Elford v. Elford ([1921] 2 W.W.R. 963) aff.......................... 8- Hay v. Allen ([1922] 1 W.W.R. 646) aff.......................... 9-anson v. Clyde Ont. R. 579) dist.............................. 10-Jenkins v. Brecken (7 Can. S.C.R. 247) ref to....................
11-King, The, v. Caron (21 Ex. C.R. 119) aff..........................
v. The Canadian Northern Ry. Co. ([1921] 1 W.W.R. 1178) varied . ................................
13- v. United States Fidelity and Guaranty Co. (30 B.C. Rep. 440) aff. 14-Laidlaw v. Vaughan-Rhys (44 Can. S.C.R. 458) fol................... CASES-Concluded.
15-Lemay v. Hardy (Q.R. 32 K.B.
311) aff..........................
16-Major v. The Canadian Pacific Ry.
Co. (51 Ont. L.R. 370) ..........
MacKay v. McDougall Sask.
L.R
See 1.
18-McClure, In re Ont. L.R.
278) aff..........................
19-Mc
Killop and Benjafield v. Alexander (45 Can. S.C.R. 551) fol.......
See 1.
20-McKinnon v. Campbell River Lumber Co. W.W.R. 549, 556) rev.
......................
21-Standard Marine Insurance Co. v.
Whalen Pulp and Paper Mills Ltd...
1 W.W.R. 679) aff ..........
22-Taylor v. Caldwell B. &
826) ref to........................
23-Ville St. Michel v. Shannon Realties Ltd. (Q.R. 32 K.B. 520) rev .....
CIVIL CODE
Arts. 290, 90a (Tutorship) .........
Art. 736 (Payment of debts).........
Art. (Defaults on obligations) ...
Art. (Execution of obligations). .
Art. (Joint and several obligations)
. . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . .
48975-32'
CIVIL CODE-Concluded.
Art. 1159 (Imputation of payments). . Art. 1233 (Testimony).............. Arts. 1612, 1616, 1617, 1618 (Obligations and rights of the lessor) .............
. Art. 1663 (Termination of lease) ..... Art. 2030 (Legal hypothec of minors).. Art. 2117 (Registration)............. Art. 2128 (Registration) ............ Arts. 2186, 2227 (Prescription) ..... CODE OF CIVIL PROCEDURE Arts. 48, 50 (Superior Court....... Art. 54 (Circuit Court)............. Art. 77 (Actions) .................
Arts. 978, 987 (Corporations)....... Art. 1003 (Prohibition) ............
Art. 1292 (Certiorari)............ Purchase shares-Mortgage on company property- Security for bonds-Covenant provide sinking fund-Earnings for calendar year- Payments at fixed date-Payments "accrued but not yet due" ............. See 3.
CONSTITUTIONAL
LAW - Federal taxation-Official of provincial government-Taxation on income.] The Domin- Government the right to income taxes upon the salaries of provincial officials.
Abbott v. The City Saint John (40 Can. S.C.R. 597) fol.- Judgment. of the Exchequer Court Ex. C. R. 119)
CONSTITUTIONAL LAW-Concluded.
- Statute - Construction - Importation of liquor by province for sale-"Taxation' on "property"-Customs duties- Exemption-B.N.A. Act, [1867] s. 125- (B.C.) 11 Geo. V., c. 30.]
The government of the province of British Columbia in the exercise of its powers of control and sale of alcoholic liquors under the
"Government Liquor Act," (11 Geo. V,
(B.C.) c. 30) cannot import such liquors into the province for the purposes of sale without paying customs duties to the
Dominion of Canada. Brodeur J. dissenting.-The levying of customs duties on the goods in question is not "taxation"
on "property" belonging to a province within the purview of section 125 of the
B.N.A.
Act. Brodeur J. dissenting.- Judgment of the Exchequer Court (21
Ex. C.R. 281)
affirmed,
Brodeur J.
dissenting. THE oF BaInSH
CANADA..............
CONTRACT - Affreightment - Ships named under construction-Delay incompletion-Impossibility of performance- Right of shipper to damages-Whether condition as to completion implied- Express condition as to continuance of service.] The respondent, in March, 1920, entered into two contracts of affreightment with the appellant for loading with timber two named ships and carrying it from Vancouver to Australia, the shipments to be made in early April and in
April or May respectively.
The ships were, to the knowledge of the respondent, under construction for the appellant at the time of the agreements.
contracts contained the following clause:
"This contract
*
*
* is entered into conditional upon the continuance of the steamship company's service and the sailings of its steamers between the ports named therein."
Owing, apparently, to a dispute between the shipbuilders and the appellant a delay occurred in the completion and delivery of the ships, which were not ready to sail in the named months.
The respondent cancelled the contracts of affreightment and sued to recover damages.-Held, that the respondent was entitled to succeed.
The above quoted provision covers the possibility of the abandonment of the appellant company's undertaking and the complete cessation of its service
"between the ports named" and does not
CONTRACT-Continued.
cover a temporary suspension of sailing not caused by either of the contingencies mentioned in the clause.
Moreover, the principle of Taylor v. Caldwell (3 B. & S. 826), as to impossibility of performance is not applicable to this case; the contracts cannot be held to be subject to an implied condition excusing performance by the appellant if the ships were not fit for sailing during the months specified through no fault of the appellant.- Judgment of the Court of Appeal ([19221 1 W.W.R. 662)
affirmed.
.......... 2-Purchase of books-Entire set - Price fixed per volume-150 vols. more or less-Estimate - Representation -Warranty - Breach - Action for price - Counterclaim for damages.] The B. B. Co. executed a contract agreeing to give the C. L. B. Co. the sole Canadian market for sale of the English Reports Reprint to be published in Edinburgh and of which it had the sole rights for the United States and Canada. The C. L. B. Co. by said contract agreed to buy a certain number of copies "of each volume of the set (150 vols. more or less)" at a price named per vol.
The publishers of the work had issued a prospectus which was given to the C. L. B. Co. stating that the set would consist of about 150 vols. of about 1,500 pages each and the latter company solicited subscriptions on that basis.
Most of the volumes after the first few contained considerably less than 1,500 pages and when 150 had been published it was seen that to complete the work over forty more would be necessary.
The C. L. B. Co. refused payment for the following four volumes published and, in an action by the B. B. Co. for the price, counterclaimed in damages for breach of the contract.-Held, reversing the judgment of the Appellate Division (48 Ont. L. R. 238) which affirmed that on the trial (44 Ont. L.R. 529) that the C. L. B. Co. did not contract to purchase the entire set of whatever number of volumes it might consist but only to take 150 vols., more or less; that the contract must be construed in view of the statement in the prospectus to the extent of the work; that the number of volumes and contents of each to be reprinted were known and the extent of the work to contain the reprint could be calculated within very S.C.R. VOL. LXIV.] CONTRACT-Continued.
narrow limits; therefore the term in the contract sued on that it would consist of
"150 vols., more or less" was not an estimate but part of the description of the subject matter and the phrase "more or less" would permit only a slight increase over the 150 vols. and the excess of 40 vols. or more is so unreasonable as to constitute a breach of the contract.- Held also, that the C. L. B. Co. is entitled to claim damages by counter claim to the action of the B. B. Co. and not obliged to wait until the entire work is published.
3-Purchase of shares in company- Mortgage on company property-Security for bonds-Covenant to provide sinking fund-Earnings for calendar year-Payments at fixed date-Payments "accrued but not yet due."]
As security for its bond issue the Ont. P. Co., in 1903, gave a mortgage of all its property to a trust company and agreed to provide a fund to redeem said bonds by paying, on the first of July in each year from 1903, one dollar for each electrical horse power sold and paid for during the preceding calendar year.
In 1906 it gave another mortgage to secure debentures and again agreed to provide a sinking fund on the same terms and conditions except that the rate was twenty-five cents per h.p.
payable out of net earnings. In 1917 the Hy. El. Com. entered into a contract with A. (acting for himself and other shareholders) to purchase ninety per cent of shares in the Ont. P. Co. and as much of the remaining ten per cent as A.
controlled when the sale was completed.
In this contract A. covenanted that when the sale was completed he would leave with the Ont. P. Co. a sum estimated by him to be equal to "
*
* sinking fund payments on the bonds and debentures
* *
* which shall have accrued but shall not be due at the time for completion."
The time for completion was fixed at Aug. 1, 1917.
On that date A.
left with Ont. P. Co. a sum representing the power sold and paid for during the preceding month of July.-Held, Anglin
J. dissenting, that the phrase "payments
*
* accrued but not due" meant that the obligation to pay accrued (in the conventional sense meant by the parties)
as soon as sufficient h.p. was sold and paid for and continued to accrue de die in diem so that A. was obliged to leave an
CONTRACT-Concluded.
amount equal to one dollar per h.p. sold and paid for from the first of Jan. the beginning of the calendar year 1917.- Per Duff J. The interest and sinking fund payments under the second mortgage were payable out of net profits. As the existence of such profits has not been shown there is no liability to pay. ...... 4- Work one municipality in the territory of another-Payment debentures-Acceptance contractor of these debentures in lieu of cash-Interest accrued before work done-Right of the contractor to the interest coupons ..............
5-Carriage of goods-Illegal purposes- Non-delivery-Right of action....... 367 6-Sale vendor through third party real purchaser-Increase of price-Difference to paid vendor to real purchaser- Concealment from third party-Fraud. DEBTOR AND CREDITOR-Tutorship -Sale of goods-Credit account to estate- Minor children-Promissory note signed tutrix-Liability of children when age-Joint and several or divisible- Interruption
"Bills Exchange Act,"
R.S.C.
1105,
1159,
1233,
2030, 2117, 2186, 2227 C.C.]
O.C. died in 1897 leaving as heirs three minor children, the widow being a creditor of the estate to an amount of
$6,000.
When living, he used to buy goods at the appellants' general store. After his death their mother, living with her children, continued to buy whatever was necessary for her own use for their maintenance, -with the authorization of the tutor R., a credit account being then opened under the name of "Estate O.C." In September, 1911, the appellants ceased to supply goods and the account then amounting to $1,705.53 was closed.
On the 1st of August, 1912, the mother was appointed tutrix and, at that time, being requested to pay the account she promised to do so as soon as a valuable claim by the estate would be settled.
On the 30th July, 1915, payment being again insisted DEBTOR AND CREDITOR-Concluded.
upon by the appellants, the tutrix consented to sign a promissory note for
$2,413.56, being 81,705.53 for the account due and $708.03 for interest at 7 per cent, the said note bearing also the same rate of interest.
In May, 1920, the appellants brought action against the respondents, the three children then of age, for
$3,030.67 being the amount of the note with interest accrued. Before filing their plea the respondents asked for particulars as to the consideration of the note and the appellants produced a detailed account of the merchandise sold and delivered.- Held, Idington J. dissenting, that the respondents were liable, each for onethird, for the payment to appellants of the sum of $2,195, being the amount of the account with interest at 5 per cent.- Held, also, that the tutrix had not the authority to bind the estate for a rate of interest above the legal rate of 5 per cent,
Idington J. expressing no opinion.- Per Duff, Anglin and Brodeur JJ. Such interest is to be computed from the demand of payment made in 1912 and per
Mignault J. from the date of the signing of the note.-Held, also, that prescription of the appellants' account was interrupted by the promise to pay made by the tutrix in
1912, evidence of which, though illegal, had not been objected to; and it was further interrupted by the signing of the promissory note, Idington J. expressing no opinion.-Per Duff and Brodeur
JJ. Under special circumstances, such as in this case, the tutrix acted as a prudent administrator in signing a promissory note in acknowledgment of a debt legally owed by the estate and not prescribed, so as to obtain delay for payment to the benefit of the estate.- Mignault J. contra.
..........
ELECTION LAW - Scrutiny - Ballots
-Marking-Provision as lead pencil and cross-"Dominion Elections Act,"
10 & 11 Geo. V., c. 46, s. 62, s.s. 3.] The provision of sub-section 3 of section 62 of the "Dominion Elections Act" that
"the voter shall
*
*
* mark his ballot by making a cross with a black lead pencil
*
* * is imperative.- Ballot papers marked in ink or with a coloured pencil, or marked with an upright .stroke resembling figure are not valid.-Duff and
Mignault
JJ.
expressed no opinion as to ballots other
ELECTION LAW-Concluded. than those marked with figure Bothwell Election Case Can. S.C.R. 676) and Jenkins v. Brecken Can. S.C.R. 247) ref. to.-Judgment of the trial judges ([1922] 1 W.W.R. 993) affirmed.
BY
EXPERTS-Foreign law ..............................
See BILLS FOREIGN
LAW-Evidence experts ..............
.... ........ ....... HUSBAND
AND WIFE - Fraudulent conveyance-Property in wife's name defeat creditors-Principal and agent- Power of attorney husband-Transfer by attorney himself-Right of wife relief.] A husband (the appellant) had certain property put in his wife's (the respondent's) name, with her knowledge, for the purpose of defeating his creditors. He held a general power of attorney from her.
A quarrel having occurred between them the husband registered this power and, as his wife's attorney, he had the property transferred into his own name. The wife sued to have the property re-transferred to her.-Held, Idington and Brodeur JJ. dissenting, that the wife was entitled to have the transfer to her husband set aside. In order to succeed, she had only to invoke the illegal act of her husband in executing as her attorney the transfer of the property to himself and she was not obliged to disclose the alleged fraud connected with her own title; on the contrary, the husband, in order to succeed in his defence, had to invoke such fraudulent arrangement made to defeat his creditors. -Judgment of the Court of Appeal 2 W.W.R. 963) affirmed, Idington and Brodeur JJ. dissenting.
E LFoRD.......................... INCOME TAX-Constitutional law - Federal taxation-Official of provincial government........................ INSURANCE
- Marine - Floating policy-Facts subsequent its execution- Insured barge- Unseaworthiness-Previous uninsurability - Non-disclosure.] appellant issued to the respondent a floating policy of marine insurance to INSURANCE-Concluded.
cover wood pulp during transportation
(including loading)
between certain termini. The respondent chartered a barge; while in the course of being loaded, she sank at respondent's wharf.
The respondent, being bound to "declare"
all shipments made and to pay premiums thereon at rates fixed by a schedule to the policy, complied with these conditions as to the above cargo and the premium was accepted by the appellant.
The claim for insurance was also paid by the appellant;
but, subsequently, it took an action to recover the amount on the ground that the barge was unseaworthy and uninsurable to the knowledge of the respondent at the time the cargo was declared and the premium paid.- Held, that the appellant was liable under the floating policy. The evidence did not show that the respondent had known of the unseaworthiness of the barge.
As all the conditions of the policy had been complied with, the appellant would have been bound even if the fact of .the uninsurability of the barge had been communicated to it so that the nondisclosure of that fact, although known by the respondent at the time the premium was paid, did not vitiate the contract.-Judgment of the Court of Appeal
(19221 1 W.W.R. 679) affirmed.
"JUDICATURE ACT" - Statute - Construction-Letters Patent as to Chief
Justiceship-Validity-B. N.A. Act
92, 96, 99, 100, 101-"The Alberta
Act," 1905, 4 & 5 Edw. VII, 3- "The Supreme Court Act," (Alta.) 1907,
4 deo. V., 9, 38; 4 V.,
2nd sess., 2, s. 11-(Alta.) 1920,
LESSOR AND LESSEE-Notice to vacate premises-Absence of iudicial proceedings or physical act of eviction-Damages to lessee-Liability of lessor-Arts. 1612,
1616, 1617, 1618, 1663, 2128 C.C.]
A lessee, who vacates the leased premises upon a simple notice by the owner to whom these premises have been sold by the lessor, that proceedings in eviction
LESSOR AND LESSEE-Concluded. will be taken against him, is not entitled to claim damages against his lessor. There must be either judicial proceedings in eviction or some physical act of eviction by the owner.
2-Lease for years-Covenant to renew at option of lessee-Right to renew after expires-Continuance of possession- Sanction of lessor.] If a lease for years at the option of the lessee the option can be exercised at any time after the lease expires so long as the lessee remains in possession with the sanction of the lessor.
Mignault J. hesitante.-It is not necessary that the continuance of possession shall be with the consent of the lessor evidenced by some positive act. Mere non-interference therewith on his part suffices.-Per Duff J. The interest created by a covenant to renew a lease for years at the option of the lessee is a present interest defeasible only by the election of the latter to discontinue possession.
It is a vested right not one subject to fulfilment of a condition precedent.
LIQUOR-Importation province for sale-Customs duties-"Taxation" "property"....................... MARITIME LAW- Insurance -Marine -Floating policy-Facts subsequent its execution - Insured barge- Unseaworthiuninsurability Nondisclosure...................... MUNICIPAL CODE-Arts. 430, 431, 433 (Quashing of by-laws) .......... MUNICIPAL CORPORATION-Work one municipality in the territory another-Contract-Payment debentures-Acceptance contractor of these debentures in lieu of cash-Interest accrued before work done-Right of the contractor the interest coupons-(Q.) V., c. 58-(Q.) 5 Geo. V., c. 10, s. 39-(Q.) 5 Geo. V., c. 108, s. 23.]
In 1912, the Quebec legislature authorized the town of MUNICIPAL CORPORATION-Cont'd. I MUNICIPAL CORPORATION-Con'd. Maisonneuve (Q.) 3 Geo. V., 58) to construct a highway outside its limits on the territories of the municipalities, appellants. In accordance with the provisions of the statute the town of Maisonneuve enacted a by-law, by which, after an estimate of the cost of the works had been given, liability was imposed on the appellant municipalities for the payment in cash of the cost of the highway within their limits "as soon as the by-law shall have received the sanction
Lieutenant-Governor in Council."
On the 3rd of November, 1914, an order in council was passed approving the by-law but declaring that the payment to the town of Maisonneuve should be made by means of debentures, payable in forty years, bearing interest at a rate not exceeding 6 per cent per annum, which the town of Maisonneuve was bound to accept at par, provided the cost should not exceed 5 per cent of the estimate.
In the same month, the appellant municipalities passed by-laws for the issue of debentures bearing date lst of December, 1914, with interest coupons payable semi-annually.
These by-laws also enacted that the councils of the municipalities might transfer the debentures and coupons to the City of Maisonneuve, "upon a certificate of (the appellants') engineer and according to the progress made, in the territory of (each municipality) of such proposed" highway.
A contract for the construction of the highway was entered into between the town of Maisonneuve and the respondent company, by which the latter agreed to accept, in payment of the contract price for work done in their territory the debentures issued by the appellant municipalities. When these municipalities proposed to make their payment to the town of Maisonneuve, they passed a resolution in conformity with powers given by the order-in-council for the deposit of the debentures in a bank and giving directions to the bank that the contractor should be paid only upon the certificate of their engineer according to the progress of the work.
They also instructed the bank to detach from the debentures such coupons as should have at the time of the delivery of the debentures entirely or partially matured.
respondent company received from the town of Maisonneuve debentures in payment of the work done on the territories of the appellant municipalities.
The respondent company, by its action, claims the amount of the interest coupons accrued between the date of the issue of the debentures and the time when it became entitled to receive delivery of them on engineer's progress certificates.- Held, Idington and Duff JJ. dissenting, that the respondent company was entitled to recover the amount of their interest coupons. LA 2 - Valuation roll - Fictitious valuation-Action to set aside roll-Absolute nullity-Supervising control of Superior Court-Statutory means of relief-Jurisdiction of Circuit Court-Prescription- Incompetency-Arts. 48, 50, 54, 978, 987, 1003, 1292 C.C.P.-R.S.Q. [19091 arts. 5256 & seq. 5591, 5623 & seq 5696, 5705 & seq., 5715 & 5730-M.6. Arts. 430,431, 433-[1849] 12 Vict., c. 38, s. 7- (Q.) 5Geo. V., c. 109, s. 28.]
The valuation of the respondent's property by the municipality appellant was not fictitious nor grossly excessive.
Anglin and Mignault JJ. (dissenting)
.-If a valuation roll has been made within the powers of a municipal corporation and in the absence of fraud, the party assessed cannot invoke the supervising control given to the Superior Court (Art. 50 C.P.C.) in order to set aside the roll, when other relief is provided by way of appeal to the Circuit Court. Anglin and Mignault JJ. dissenting.-Per Anglin and Mignault JJ. (dissenting).-As the overvaluation constituted such an illegality that it must be considered as an absolute nullity ab initio, the Superior Court has jurisdiction to annul roll under authority of Art. 50 C.P.C.-Per Davies C. J. and Brodeur J. The respondent's right to take a direct action before the Superior Court, if existing, would have been prescribed, as not having been exercised within three months from the date the roll had been in force. (Art. 5624 R.S.Q. (1909) ). Anglin and Mignault JJ. contra.-Per Duff J. Although article
5696 R.S.Q.
expressly provides that taxable property shall be assessed "according to its real value " a departure from this statutory mandate does not constitute legal incompetency MUNICIPAL CORPORATION-Cond'd.
rendering the acts of the corporation ultra vires and ab initio null, as the statutory law provides a means for complaining against such a valuation and correcting it.-Judgment of the Court of
King's Bench
(Q.R. 32
K.B.
reversed, Anglin and Mignault JJ. (dissenting)
.
NEGLIGENCE - Railways - Excessive speed-Thickly populated locality-Railway yard-Recklessness of employee- "The Railway Act," 9 and V., c. 68, s. 309.1
The appellant company would only be liable in case of negligent or unreasonable use of its statutory right to operate its trains, of which there was no evidence in this case;
moreover, upon the evidence, the determining cause of the accident was the act of respondent's husband in projecting himself in front of the coming train. Idington and Brodeur JJ. contra.-Per Idington and Brodeur JJ. dissenting.-It was for the jury to determine whether or not the appellant company was guilty of fault; and its verdict for the respondent, upheld unanimously on appeal, should be maintained by this court.
RY. Co.
- Interruption - Tutorship-Sale of goods-Credit account estate-Minor children........... .31
2-Action possessoire-Lane - Common use-Absence of title-Right of passage- Obstructions-Servitude............. 222
3-Action to set aside valuation roll. 420
PRINCIPAL AND AGENT-Husband and wife-Fraudulent conveyance-Property in wife's name defeat creditors- Power of attorney to husband-Transfer by attorney himself-Right of wife relief...........................
RAILWAYS
- Negligence-Excessive speed-Thickly populated locality-Railway yard-Recklessness of employee- "The Railway Act," 9-10 V., c. 68, s. 309.1
The appellant company
RAILWAYS-Concluded.
would only be liable in case of negligent or unreasonable use of its statutory right to operate its trains, of which there was no evidence in this case; moreover, upon the evidence, the determining cause of the accident was the act of respondent's husband in projecting himself in front of the coming train. Idington and Brodeur JJ. contra.-Per Idington and Brodeur JJ. dissenting.-It was for the jury to determine whether or not the appellant company was guilty of fault; and its verdict for the respondent, upheld unanimously on appeal, should be maintained by this court.
Ry. go. SALE OF LAND -Equity -Same property orally sold to two purchasers- Agreements then reduced to writing- Statute of Frauds-Equal equities-Priority in time-Caveat-Plea a purchaser for value without notice-Onus.] The appellants in 1919 entered into an agreement to purchase certain land from one A condition thereof being that no assignment it should be valid unless approved by the vendor.
The respondent became, on the 21st June, 1920, by oral agreement the purchaser of the equitable interest of the appellants for $6,500; and, on the evening of the 22nd June, 1920, this oral agreement was reduced into writing, differences in the agreements being as to the time when possession was to be given and as to the terms of payment of the purchase price. About noon on the 22nd June, 1920, the appellants orally agreed to sell the same property to R. for $6,550, which agreement was immediately put into and on the 23rd June, 1920, R. paid
$1,550 to the appellants. The respondent, on the 30th June, 1920, registered a caveat.
On the 6th July, 1920, McC., having received the balance of the purchase price from R., executed a transfer the property to the latter, who, on the 8th July, 1920, had it registered subject to the respondent's caveat.- Held that, upon the evidence, the respondent's written agreement sufficiently embodied the terms of the oral agreement to warrant its being taken as a memorandum of the latter which satisfied the Statute of Frauds; therefore, the respondent had a valid agreement prior in time to that of R.; and, the equities of R. and of the respondent being equal at the SALE OF LAND- Continued.
time of the registration of the caveat, the respondent's equity being first in time, must prevail.
Mc Killop and Benjafeld v. Alexander (45 Can. S.C.R. 551) followed.-Per Dufi
J. When a party sets up that he is a purchaser for value without notice, the onus is on him to prove absence of notice. Laidlaw v.
Vaughan-Rhys. (44 Can. S.C.R. 458).- Judgment of the Court of Appeal (15
Sask. L.R. 24) affirmed.
MACKAY.........................
2-Vendor and purchaser-Contract- Sale vendor through third party to real purchaser-Increase of price-Difference paid vendor to real purchaser- Concealment from third party-Fraud- Advance in cash purchaser to vendor- Conditions of agreement not fulfilled- Claim for reimbursement-Indivisibility transaction.] The respondents were owners of timber licences and timber lands, standing in the name of McKillop, which the appellant wished to purchase and for which the respondents asked
$165,000.
The appellant, being unable to make the cash payment required by respondents, suggested that the transaction could be financed through one
Rounds. It was finally agreed between the appellant McKillop that the respondents should sell to Rounds for $230,000 and that the appellant should receive in cash the difference of
$65,000.
The respondents were to be paid by Rounds $100,000 in cash, $90,000 in shares belonging to Rounds of the par value of 880,000 in a lumber company in Maine and $40,000 in five yearly instalments.
The appellant was to buy the property from Rounds at the same price,
$230,000.
appellant also agreed to purchase the shares from the respondents within four years at $85,000 with interest at 6 per cent, the respondents agreeing to pay the appellant in advance $65,000 in cash out of the
$100,000 received from Rounds.
respondents consented to the increase in the price of sale and to conceal the fact from Rounds. The latter was also kept in ignorance of the payment of $65,000 by respondents to appellant and of the agreement by appellant to purchase the shares. These transactions being all carried through, the respondents paid the appellant $65,000 in cash.
At the end of four years, the respondents called upon the appellant to purchase the
SALE OF LAND-Concluded.
shares.
The appellant repudiated the transaction as ultra vires and on that ground successfully defended an action for specific performance.
The respondents then brought this action to recover the $65,000 advanced to the appellant, with interest.-Held, Idington J. dissenting, that the payment of the $65,000 cannot be separated from the rest of the transaction; and, such transaction being infected with fraud in which McKillop participated, the respondents cannot recover.-Judgment of the Court of Appeal ([1922]
2 W.W.R. 549, 556) reversed, Idington J. dissenting. SALE OF GOODS - Tutorship - Credit account to estate-Minor children-Liability of children when of age-Joint and several or divisible................. . 2----Contract-Prchase of books -Entire set-Price fixed per volume-150 more or less-Estimate-Representation-Warranty-Breach-Action for price-Counterclaim for damages................. SERVITUDE
- Action possessoire - Lane-Common use-Prescription sence of title-Right of passage-Obstructions............................
STATUTE-"Judicature Act" and its amendments-Construction-Letters Patent as to Chief Justiceship-Validity-B. N.A. Act, ss. 92, 96, 99, 100, 101-"The Alberta Act," 1905, 4 & 5Edw. VII., 3-"The Supreme Court Act," (Alta.) 1907, Edw. VII., 3, ss. 30-"The Judicature Act," (Alta.) 1919, V., 3, ss. 1, 2, 3, 9, 28, 59.-(Alta.) 1913, V., s. 38; 4 V., 2nd sess., 2, s. 11-(Alta.) 1920, 10 V., 2; 4, s.
The Appellate Division of the Supreme Court of Alberta, as established by the "Judicature Act" of 1919, was not abolished as the result of the new section 6 of the Act enacted in 1920, which section did not create a new judicial office of Chief Justice of Alberta. Consequently, in the opinion of this court, the Honourable Horace Harvey, who had been appointed Chief Justice STATUTE-Continued.
of the Supreme Court Alberta in 1910, is still "by law entitled to exercise and perform jurisdiction, and functions of the Chief Justice and President of the Appellate Division of the
Supreme Court of Alberta" instead of the Honourable D. L. Scott who had been appointed as such subsequently to the said amendment of 1920.
Davies
C.J. and Idington J. contra.
- Construction-Meaning of "any statute" in provincial Act-Penalties- Statutes of limitations-Statutory penalties-Power in court to relieve-"Act to supplement the Revenues of the Crown,"
Alta. Eliz., 5-3
Wni. IV., 42, s.
Under the provisions of "An Act to supplement the revenues of the crown," the province of
Alberta claimed from the railway companies double taxes for 1913 to 1918, both inclusive and also penalties for
2,191 days at $20 a day for failure to deliver to the provincial treasurer each year a written statement showing the number miles of railway, whether exempt from taxation or not (Alta.
30, 4).-Held, that under the provisions of the Statutes of Limitation
Eliz., and & 4 Win. IV.,
42, the respondent's right to recover is restricted to such penalties as accrued within two years previous to commencement its action.- Held, also, Idington and Anglin JJ.
dissenting, that the words "any statute"
in the proviso (added by 10 of 5
Alta. [1909])to section of the Revenue
Act above cited "that no tax shall be payable under this Act upon or with respect to any portion of a line of railway guarantee tnder the provisions of any statute not restricted statute of the Province of Alberta but also comprise a statute of the Parliament
Canada.-Per Idington, Duff and Anglin
JJ. The power given to the court to relieve against penalties ("Supreme Court
Act," Alta. as amended by
Alta. c. does not authorize to relieve against statutory penalties.- Judgment the Appellate
Division
1 W.W.R. 1178) varied, Idington and Anglin JJ. dissenting in part.
STATUTE-Concluded.
Construction - Dominion Elections Act-Imperative provsion .......... 4 - Construction - Importation liquor province for sale-"Taxation" on "property"-Customs duties-Exemption. ... ...
... ... ... ... STATUTE OF FRAUDS-Sale of land- Equity-Same property orally sold to purchasers-Agreements then reduced . writing-Equal equities-Priority in time- Caveat............................ See 1.
STATUTES
B. N.A. Act s. ...... R.S.C.
R.S.C.
139, s. s.s. e (Supreme Court Act)............... R.S.C. s. (Supreme Court Act)........................ 6-(D)
4-5 Edw. VII., (The Alberta A ct).........
....................
7-(D)
V., s. 2 (Supreme Court A ct)........................
8- 9-10 V., 68, s. 309 (The Railway Act)..................... 9- V., 32 (Supreme Court A ct).......................
V., 46, s. 62, s.s. (Dominion Elections Act) ......... STATUTES-Concluded.
11-(R.S.O.)
195, 80
(Assessment Act)..................
5591, 5623 et seq., 5696, 5705 et seq.,
5715 & seq., 5730 (Cities and Towns) 420
13-(Q) 3 Geo. V., c. 58 (Charter of
Maisonneuve) ....................
17-(Alta.) c. 30 (Act to supplement the Revenues of the Crown) .....
18- (Alta.) 7Edw. VII., ss.
5, 30 (The Supreme Court Act) .......
(Alta.) 4 V., 9, s.
38 (Supreme Court Act)............
(Alta.) [1913] 4 Geo. V., 2nd sess., c. 2, s. 11 (Supreme Court Act)......
5,6,7,9,10,28,59 (The Judicature Act). 135
22- (Alta.)[1920],1OGeo.V.,c.3,s.2)c.4, s. 43 (Judicature and Land Titles Act). 135
...........
37, 42, 43 (Succession Duty Act). .
25-(B.C.) Geo. V., c. 30 (Government
Liquor Act).......................
SUCCESSION DUTY - Guaranty bond -Executor also devisee-Application for bond by executor-"Coming into the hands" "Succession Duty Act," R.S.B.C., C. 217, ss. 2, 23, 24, 29, 36, 37, 42, 43.-"Administration Act," R.S.B.C., c. 4, ss. 74, 75.] Action was brought by the respondent upon a bond given by the defendant Q., executor and sole devisee of the estate of P.Q. and by the appellant as his surety, for the payment of succession duties. The bond stipulated that "the condition of this obligation is such that if L. J. Q., the executor of all the property of P.Q., pay to respondent) any and all duty to which of the said P.Q. coming into the hands of the said L. J. Q. may be found liable under the 'Succession Duty Act' then this obligation shall be void -Held, per Duff, Anglin and Mignault JJ. According to the terms of the bond, the appellant would become liable under it only if the real property came into the hands of Q. as executor. Idington and Brodeur JJ. contra.-Per Duff, Anglin and Mignault JJ. Although section 37 of the "Succession Duty Act," gives the executor of an estate the power to sell so much of the real estate devised as would enable him to pay succession duty on it, such real estate is not thereby deemed to have "come into the hands" of the executor within the meaning of the terms of the bond which follow the statutory form.
(Sect. 24 of the Act). Davies C.J. and Brodeur J. contra. Ianson v. Clyde (31 O.R. 579) dist.-Per Davies C.J., Idington and Brodeur JJ. Upon the terms of the bond the appellant must be held to be liable, as Q.'s guarantor, for succession duties on real and personal property of the estate.- Judgment of the Court of Appeal (30 B.C. Rep. 440) affirmed on equal division of this court.
TAXATION - Income - Federal taxation - Official of provincial government ........ TEMPERANCE ACT-Contravention of -Carriage of goods-Illegal purpose- Claim for loss-Contract or tort ...... - Surname - Food products.] A surname, and especially an uncommon surname, may be registered as a trade mark when it has long been used to designate the quality of goods sold and to distinguish the same from other goods.
.
TUTORSHIP - Sale of goods - Credit account to estate-Minor children-Promissory note signed by tutrix-Liability of children when of age-Joint and several or divisible.......................
VALUATION
ROLL-Fictitious valuation-Action to set aside roll-Absolute nullity.......................
WILL-Devise to executors for sale- Disposal of proceeds-Sale by testator - Effect on devise.] A clause in a will directed the executors to sell a certain farm and divide the proceeds between the testator's two sons.
The testator himself sold the farm and took a mortgage for part of the purchase money. This mortgage he held unimpaired at his death and it formed part of his estate. The executors applied by originating summons to the Supreme Court of Ontario for construction of this clause in the will.- Held, affirming the judgment of the Appellate Division (51 Ont. L.R. 298) that the trust declared by the will in respect to the proceeds of sale of the farm applied to the mortgage which passed to the testator's sons in the proportions he indicated.
HIcKs v. MC- CLURE.......................
WORDS AND PHRASES
"Coming into the hands"............. See SuccEssioN
Cases cited
- 1 W.W.R. 993 1 W.W.R. 993
- 2 W.W.R. 963 2 W.W.R. 963
- 1 W.W.R. 646 1 W.W.R. 646
- 1 W.W.R. 1178 1 W.W.R. 1178
Statutes and regulations cited
-
Unresolved citations
- ss. 5
- 11
- 42
- section 11
- section 9
- section 5
- section 5 of the Trade-mark and Designs Act
- s. 2
- section 2