Supreme Court of Canada
Archbald v. DeLisle; Baker v. DeLisle; Mowat v. DeLisle,
(1895) 25 SCR 1
Date: 1895-06-26
FROM
DOMINION AND
PROVINCIAL COURTS
AND FROM
THE SUPREME COURT OF THE NORTH-WEST TERRITORIES.
HENRY ARCHBALD et al,
ès qual. (PLAINTIFFS)
Appellants;
And
M NOLAN
DELISLE et al (DEFENDANTS IN WARRANTY)
Respondents.
JOEL C. BAKER et
al. (DEFENDANTS IN WARRANTY)
Appellants;
And
M NOLAN DELISLE et al (PLAINTIFFS
IN WARRANTY)
Respondents.
WILLIAM MOWAT et al. (INTERVENANTS)
Appellants;
AND
M. NOLAN DELISLE et at (CONTESTANTS)
Respondents.
1895: Feb. 26; 1895:
Feb. 28; 1895: June 26
PRESENT : Sir Henry Strong C.J., and
Fournier, Taschereau King and Sedgewick J J.
ON APPEAL FROM THE
SUPERIOR COURT FOR LOWER CANADA SITTING
IN REVIEW AT MONTREAL.
Costs, appeal for when it lies—Action in warranty—Proceedings
taken by warrantee before judgment on principal demand—Joint speculation—partnership or ownership
'par indivis.
Though an appeal will not lie in respect of costs only, yet
where there has been a mistake upon some matter of law, or of principle,
[Page 2]
which the party appealing has an
actual interest in having reviewed, and which governs or affects the costs, the
party prejudiced is entitled to have the benefit of correction by appeal.
It is only as regards the principal action that the action in
warranty is an incidental demand Between the warrantee and the warrantor it is
a principal action, and may be brought after judgment on the principal action,
and the defendant in warranty has no interest to object to the manner in which
he is called in where no question of jurisdiction arises and he suffers no
prejudice thereby.
But if a warrantee elect to take proceedings against his
warrantors before he has himself been condemned he does so at his own risk and if
an unfounded action has been taken against the warrantee and the warrantee does
not get the costs of the action in warranty included in the judgment of
dismissal of the action against the principal plaintiff, he must bear the
consequences.
W. and D. entered into a joint speculation in the purchase of
real estate * each looked after his individual interests in the operations
resulting from this co-partnership; no power of attorney or authority was given
to enable one to act for the other, and they did not consider that any such
authority existed by virtue of the relations between them; all conveyances
required to carry out sales were executed by each for his undivided interest
Upon the death of W and D. the business was continued by their representatives
on the same footing, and the representatives of W. subsequently sold their
interest to T. W., who purchased on behalf of, and to
protect, some of the legatees of W., without any change being made in the
manner of conducting the business. A bookkeeper was employed to keep the books
required for the various interests, with instructions to pay the moneys
received at the office of the co-proprietors into a hank, whence they were
drawn upon cheques bearing the joint signatures of the parties interested, and
the profits were divided equally between the representatives of the parties
interested, some in cash, but generally by cheques drawn in a similar way M N D who looked after the business for the representatives of
D., paid diligent attention to the interests confided to him and received their
share of such profits but J.C.B. who acted in the W. interest, so negligently
looked after the business as to enable the book-keeper to embezzle moneys which
represented part of the share of the profits coming to the representatives of
W. In an action brought by the representatives of W. to make the
representatives of D. bear a share of such losses.
Held, affirming the judgment of the Superior Court, and
of the Superior Court sitting in review, that the facts did not establish
[Page 3]
a partnership between the parties, but
a mere ownership par indivis, and that the
representatives of D. were not liable to make good any part of the loss, having
by proper vigilance and prudence obtained only the share which belonged to
them.
Even if a partnership existed, there would be none in the
moneys paid over to the parties after a division made.
APPEAL from the judgment of the superior Court for Lower
Canada, District of Montreal (in Review) (composed of Ouimet, Davidson and
deLorimier JJ.) affirming the judgment of Jetté J. in the
Superior Court.
In 1864 the late William Workman and A. M. de-Lisle of
Montreal, entered into a joint adventure under the name of the Workman and
deLisle syndicate on several occasions purchasing considerable real estate for
purposes of speculation, the profits being divided equally from time to time as
made. The business was managed by William Workman up to the time of his death
in February, 1878.
Upon the death of William Workman, A. M. deLisle and the
executors of William Workman (Joel C. Baker Robert Moat and John Moat)
continued the business of the syndicate.
On the 17th February 1880 A. M. deLisle died, and M. Nolan
deLisle et al. (the respondents) are his legal
representatives. The business of the syndicate still continued to be managed by
the representatives of the original parties.
The executors of the late William Workman, finding it
necessary to realize the interest of their testator in the joint property in
order to settle certain bequests made by the will offered such interest for
sale by public auction in March, 1882, and it was purchased for the greatest
part by Thomas Workman, brother of William Workman. The transfer to Thomas
Workman was executed on the 24th July, 1882, but not registered to avoid difficulties
as to titles and a contre
[Page 4]
lettre of
that date, executed by Thomas Workman, Robert Moat as tutor to his son William
(a grand-nephew of Thomas Workman and a legatee under the will of William
Workman) and Mrs. J. C Baker (a daughter of William Workman and also a legatee
under his will), set forth that the said purchase was made and paid for to the
extent of five elevenths in favour of William Moat and to a like extent in
favour of Mrs. Baker leaving Thomas Workman interested to the extent of one
eleventh.
The William Workman estate was still left with large undivided
interests in bailleur de fonds and mortgage
claims.
The business which represented the interest of the estate
William Workman and the deLisles was then known as the Syndicate Workman and
deLisle, and that represented by the interest between Thomas Workman and the
deLisles was known for the purpose of distinction and had separate books under
the name of deLisle and Workman syndicate.
In 1881 the deLisle and Workman syndicate engaged a man called
Cotté as book-keeper. He kept the books of the William
Workman private estate and the books of the Syndicate Workman and deLisle, and
the Syndicate deLisle and Workman. The usual course of business was for the
representatives of the Workman interest, who for this purpose acted through Mr.
J. C. Baker, and the representative of the deLisle interest, who acted through
Mr. Nolan deLisle, to look after their respective interests, and for Cotté from time to time, as profits were made, to deliver to Mr.
Nolan deLisle cheques or cash, as the case might be, for the deLisle share, and
to deposit with Moat & Co. the bankers of the Workman estate the cheques
and cash for the other share. No power of attorney was given by one to the
other. Cotté continued to act as book-
[Page 5]
keeper until the 24th May, 1888, when
he fled the country on its being discovered that he had in the course of his
duties embezzled from all the estates.
In 1889 Thomas Workman died leaving as executors Henry
Archbald, John Murray Smith, and Walter Norton Evans, the appellants in the
principal suit under consideration in the present appeal.
This suit was brought by the said executors against the
representatives of the late A. M. deLisle to recover the sum of $2, 743 part of
the defalcations of Cotté, which represented moneys which
should have been received by the representatives of "Workman and for which
the plaintiffs alleged they had a right to make the defendants responsible.
The defendants, besides pleading to the principal action,
brought an action in warranty against J. C. Baker et al, the
representatives of the William Workman estate, claiming that, in so far as the
principal plaintiffs had suffered any loss for which they might
have a recourse, such loss had been suffered by the negligence of the
William Workman estate represented by Baker in the common office, in not
looking after Cotté.
Further, the defendants having asserted in the principal
action that the said Thomas orkman was merely a prête-nom for
others, William Moat and J. 0. Baker, as well personally as executor of his
wife, in whose interest the late Thomas Workman had purchased the share of the
syndicate property, as before mentioned, intervened to ratify and support the
proceedings taken by Thomas Workman's executors to the extent of ten elevenths
of the sum claimed.
The facts of the case and the nature of the proceedings will
be more fully understood from the judgment of Mr. Justice Taschereau hereinafter
given.
Geoffvion Q.C. and Abbott Q.C. for appellants.
Beïque Q.C. and
Lafleur for respondents.
[Page 6]
The judgment of the court was delivered by
TASCHEREAU J.
This is a case of a rather complicated nature, and the fact that the voluminous
evidence oral and documentary, submitted to our consideration, is partly taken
in reference to another case not before us upon this appeal, has made the
investigation of the evidence adduced more than usually difficult.
The principal action, Archibald v. deListe, which I
shall consider first, is one by the Thomas Workman estate against the deLisle
estate. The plaintiffs, now appellants, are the testamentary executors of the
late Thomas Workman. It is necessary, for a proper understanding of my remarks,
that I should in limine state the precise nature of the controversy
between the parties.
The plaintiffs, appellants, allege by their declaration :
1. That they are the legal representatives of the late Thomas
Workman.
2. That at all the times hereinafter mentioned the said Thomas
Workman, or the plaintiffs as his legal representatives, were interested
jointly and in equal shares with the defendants in certain real estate in the
district of Montreal, in a joint adventure which was carried on by them
together and the returns from which were equally divided from time to time
between them.
3. That the said Thomas Workman departed this life on the
ninth day of October, one thousand eight hundred and eighty-nine.
4. That during all the times and periods hereinafter mentioned
one Honoré Cotté was the book-keeper and kept the accounts
of the said joint adventure and received the cash of the said joint account
5. That whilst acting as such book-keeper the said Cotté received from time to time large sums of money which he
did not credit in the books showing the transactions and receipts made on
behalf of the plaintiffs and defendants on such account, but embezzled the
same.
6. That heretofore, to wit, on or about the twenty-third day
of May, eighteen hundred and eighty-eight, the said Cotté absconded,
and that thereupon an inquiry was made into the transactions of the said joint
account, whereby it appears that large sums of money had been so embezzled by
the said Cotté.
[Page 7]
7. That by agreement between the parties the course of
business between them under which the said, joint account was conducted, was
that all sums of money received by the said Cotté for the
said joint account and available from time to time for division-between the
said co-adventurers, were deposited in the bank, to the credit of a certain
adventure carried on by the representatives of the late William Workman and the
defendants and known as the Workman and deLisle syndicate, and thereupon
cheques were drawn for the amounts to which the said Thomas Workman or the
plaintiffs or defendants, were entitled according to their share in the said
amounts so deposited, or so received by the said Cotté for
the purposes of the said joint account and available
for division, and the same were charged in the books of the said joint account
as moneys paid to the respective Co-adventurers.
8 That the cheques for the amounts to which the said Thomas
Workman became entitled were always drawn to the order of his bankers Messrs.
R. Moat & Co. and in the ordinary course of business should have been
handed by the said Cotté to the said firm in exchange for
their receipts.
9. That during the year eighteen hundred and eighty-five
cheques to the order of R. Moat & Co. were drawn and signed by the
representatives of the Workman and deLisle syndicate on the second of November
the third of November and the fifth of November for the sums respectively of
two hundred dollars, one hundred and
twenty dollars, and five hundred dollars, forming a total of eight hundred and
twenty dollars currency, being parts of amounts received by the said Cotté and available for division and to which the said
Thomas Work-man was entitled and the said cheques having been so drawn, the
said amounts were chargel in the books of the said joint account by the said Cotté as cash paid to the said Thomas Workman.
10. That the said Cotté did not
deposit the said cheques with the said R. Moat & Co. in accordance with the
agreement between the said parties and
the usual conduct of the said business but retained the same in his possession
although the amount thereof had been charged as having been received by the
said Thomas Workman or the plaintiffs, whereby the balance of cash et the
credit of the said joint account was made to appear greater than it actually
was, and the amount of the shortage of the said Cotté was
made to appear less and the fraud and embezzlement of the said Cotté were concealed to the extent of the amount of the
said cheques.
11. That the facts of
the said transaction were only discovered by the plaintiffs and the said Thomas
Workman after the absconding of the said Cotté.
[Page 8]
12. That the said cheques having been so retained by the said Cotté were never presented for payment, but remained and are now
in the possession of the said Workman and deLisle syndicate, and the funds
available therefor from time to time in the said bank account have
been drawn out upon other cheques for the uses of the said joint
adventurers and went into and became part of the funds of
the said joint adventurers.
13. That by reason of the premises the plaintiffs have
sustained damage to the extent of eight hundred and twenty dollars, and the
defendants were benefited to that extent.
14. That during the year eighteen hundred and eighty-seven the
said Cotté charged in the books of the said joint
account as cash payments made to or on behalf of the said Thomas Workman the
following sums, namely :
On the first of September, eighteen hundred and eighty-seven,
four hundred dollars.
On the second of November six hundred dollars
On the sixteenth of November three hundred dollars.
On the thirtieth of November, two hundred dollars, none of
which sums were ever paid by him. or received by the said Thomas Workman.
15. That the said Cotté further
received from one Morn at different times sums amounting to four hundred and
twenty-three dollars and ten cents which sums were payable by the said Morin
entirely to the said Thomas Workman the said defendants having no interest
therein whatever
16. That, notwithstanding, the said Cotté received
the said sums of money, and credited them to the joint account of the said
business, and wrongfully paid them into the funds of the said joint account, by
reason whereof the said defendants were benefited to the extent of the said sum
of four hundred and twenty-three dollars and ten cents, and the said plaintiff
and the said Thomas Workman were damaged to the extent thereof.
17. That on the discovery of the said transactions the
plaintiffs required the defendants to allow an entry to be made in the books of
the said joint account, crediting them with the amount of said sums charged
against the account of Thomas Workman, and of moneys belonging to him received
by the said Cotté which went into the funds of the
said joint account, to the end that the plaintiffs might be credited and
receive from the funds of the said joint account the said amounts, as by law
they are entitled to do.
18. That the defendants refused to pay the said amount or to
allow the said entries to be made.
19. That the plaintiffs declare that they are willing that the
said cheques should be cancelled, upon payment by the said defendants to
[Page 9]
them of the said sums, or upon their receiving credit therefor
in the hooks of the said joint account.
20. That the said sums united form a total sum of two thousand
seven hundred and forty-three dollars and ten cents, which the plaintiffs now
claim from the defendants.
The defendants pleaded to this action that they and the
plaintiffs were joint owners and not partners: that from lands sold each party
received his share and neither is responsible to the other; that while they had
an office and books in common the respective parties attended to their own
interests ; that defendants took care Cotté paid them
their share and it was through plaintiffs' gross negligence that he embezzled
the latter's share that especially did this occur through the fault of Baker,
who persisted in employing Cotté even after his
intemperate and untrustworthy habits had been pointed out by the defendants ;
that the four cash items charged were amounts received by Cotté for
plaintiffs, which they should have immediately demanded and received from Cotté as the defendants immediately demanded and received the
similar amounts by him collected for them ; that with regard to the cheques the
defendants obtained at the same time similar cheques for similar amounts
received by Cotté or plaintiffs ; that Botté,
knowing defendants would immediately present their cheques, took care to
provide funds, but relying on the negligence of Baker kept plaintiffs' cheques
in his own possession, and they were found in his drawer after he had fled from
the country ; that with regard to the Morin
collections the money belonged exclusively to plaintiffs, and through the like
negligence Cotté, who made the collection, was
permitted to embezzle it ; that the defendants never were the agents of the
plaintiffs for collections or responsible therefor, or for the dishonesty of Cotté, who was the agent of Thomas Workman alone ; that
defendants have never, in any shape, benefited by
[Page 10]
the Morin moneys so belonging to Thomas Workman, and. any
entries to the contrary are erroneous.
By consent the action was taken for a specific sum instead of
an action pro socio or communi dividendo so
that no question arises as to its nature and form
By the judgment of the Superior Court the action was
dismissed. That judgment was confirmed in the Court of Review, Mr. Justice
Davidson dissenting.
I will refer immediately to a question of law, arising from
the facts in evidence, which was argued before us as it had been in the two
courts below. The plaintiffs contend that they and the defendants were partners
in the speculation in question, and that the rules applying to partnerships
should govern the present controversy. The defendants, on the other hand, take
the position that there was no partnership between themselves and the
plaintiffs, but a mere ownership par indivis, and
that what Cotté embezzled was the plaintiffs' moneys,
they, the defendants, having got their half and nothing more.
On this point the appellants have failed to convince me that
the Superior Court, Jette J., and the majority of the
Court of Review who held that there was no partnership between the parties,
were wrong, though it must be conceded, that there is room for the appellants' contention to the contrary (). The considérants of the formal judgment of the Superior Court on
this point are, however, to my mind unanswerable, and I would adopt them
without further remarks. Nolan deLisle, I may further remark, had clearly not
the power to form a partnership between his principals and the plaintiffs.
I do not see, however, that the plaintiffs' case would at all
be strengthened if they had succeeded in establishing that there was a
partnership in the matter. If
[Page 11]
as found in the courts below, the loss of the plaintiffs'
share by Cotté's frauds was after a division between them
and the defendants, or rather, I should say, that it was exclusively the
plaintiffs' share that was embezzled by Cotté, and by
their negligence, or the negligence of their aèrent their
case fails whether there was a partnership or a mere joint ownership par indiois between them and the
defendants It is un questionable law that partners may stipulate that the
profits of the concern will be divided at fixed periods before the end of the
partnership () And
that is What, expressly or tacitly, took place between the plaintiffs and the
defendants Art 1844 of the Civil Code has therefore no application
here as after each such division the partnership, as it were, is at an
end, quoad the sums or things divided. Each of the partners then becomes
individually the owner of the sums or things divided. Then the plaintiffs
themselves, in their declaration, allege that the sums they claim is their
share. Now that is a clear admission that there must have been a division for
otherwise these sums would belong to the partnership.
I now pass to the evidence. It would be perfectly useless for
me to give the details of it here. There are two facts, I may remark, upon
which there is no room for controversy The first is that no fraud whatever is
charged or proved against the defendants or their agent, Nolan deLisle. That
was conceded at the argument. And the second that the defendants received no
benefit whatever from the moneys embezzled by Cotté. They
did not receive a cent more than they were entitled to. They escaped from Cotté's frauds by being more vigilant than the plaintiffs. That
is what as a matter of fact the two courts below have found to be the result of
the evidence and that finding
[Page 12]
is, to my mind, entirely supported, assuming that to be a
matter of inference from the facts proved upon which we could interfere. The
plaintiffs had they acted as the defendants or their agent did, would not have
been the victims of Cotte's frauds. Cotte was in fact, it
seems to me unquestionable, enabled to pursue his systematic fraudulent
dealings by the plaintiffs' negligence. He calculated on their dilatoriness to
conceal his plundering". Had the deLisle estate followed the plaintiffs'
ways of doing business Cotté would have robbed them as he
did the plaintiffs. That is the whole case, and that being established the
plaintiffs are out of court. Vigilantibus non dormientibus subvenit lex.
I entirely agree in the elaborate judgment delivered by Mr.
Justice Ouimet in that sense in the Court of Review and in the carefully drawn motifs
of Mr. Justice Jetté'in his formal judgment in first
instance.
I should add that, as to the Morin item, $423100 claimed by
the action, for the reasons given by the two courts below the plaintiffs' claim
must also fail. Nolan deLisle swears that as a matter of fact this sum was
never paid to the concern, and consequently that the defendants never received
the half of it. Upon contradictory evidence the two courts below have come to
the conclusion that this was so and that conclusion must stand.
I would dismiss the principal appeal with costs distraits to the attorneys of the respondents.
Now, as to the appeal on the action in warranty, deLisle et at v. Baker et al. The
deLisles, upon being sued by the Thomas Workman estate in the action I have
considered as above took an action in warranty against Baker et
al. the appellants on this issue, as executors of the William
Workman estate. They set
[Page 13]
forth by their declaration the issues on the principal action
and allege that the transfer to Thomas Workman was mainly to serve the
interests of the principal parties interested in the estate of William Workman,
and on the understanding between the transferors and transferees that the
business should continue to be managed, as it had previously been, on behalf of
the William Workman's estate, to wit, by Baker who employed Cotté
; that the said estate deLisle never undertook to manage the business of
Thomas Workman or the "parties to whom he lent his name but it was to be
looked after by the William Workman estate through the negligence of which any
loss suffered has arisen. Wherefore it is prayed that Baker et
al. as executors of the William Workman estate be condemned to
indemnify deLisle et al from any condemnation
obtained against the latter.
The defendants in warranty, now appellants, denying these
allegations, pleaded that it was arranged that all moneys should be paid direct
to Moat & Co. as the bankers of Thomas Workman ; that the executors of William
Workman had no power to make the alleged arrangements, which however, did not
exist; and they had no interest in the new joint account.
The judgment a quo declares
that the executors of the William Workman estate, the present appellants, were
rightly sued in warranty by the deLisles, and maintains the action in warranty
but concludes that as the principal action against the deLisles had been
dismissed the court could condemn them the appellants only to the costs of the
action.
An objection has been taken by the respondents, deLisle et al, that
this is upon this issue an appeal merely for costs, which, in accordance with
the jurisprudence of this court, following the rule laid down
[Page 14]
by the Privy Council and other courts in England, we should not
entertain ()
But this ease is not governed by that rule. In Yeo v. Tatem
(),
the Privy Council held that although an appeal will not lie in respect of costs
only, yet, where there has been a mistake upon some matter of law which governs
or affects the costs, the party prejudiced is entitled to have the benefit of
correction by appeal» I refer also to Attenborough v. Kemp (); and to Inglis
v. Mansfield (),
where Lord Brougham said :
In the House of Lords, as well as in the Privy Council and
Court of Chancery, you cannot appeal for costs alone, but you can bring an
appeal on the merits, and if that is not a colourable ground of appeal for the
purpose of introducing the question of costs, the Court of Review will treat
that not as an appeal for costs but will consider the
question of costs as fairly raised.
The present appeal falls under the rule laid down in these
cases.
Here, what the appellants complain of is that, in law, the
action in warranty against them should have been dismissed and that there is an
error in law, in the judgment appealed from, which maintains it. And under the
cases above cited this is not in my opinion, an appeal merely for costs, though
the result of the error in law which they complain of was, under the
circumstances, by the judgment of the court a quo, merely to make them
liable for the costs.
The case is quite distinguishable from those of Moir v.
Huntingdon ()
; and McKay v, The Township of Hinchinbrooke (). What we held
in those cases is that where the state of facts upon which a litigation went
through the lower courts has ceased to exist so that
[Page 15]
the party appealing has no actual interest whatsoever upon the
appeal but an interest as to costs, and where the judgment upon the appeal,
whatever it may be, cannot be executed or have any effect between the parties
except as to costs, this court will not decide abstract propositions of law
merely to determine the liability as to costs where these were in the
discretion of the courts below, for it might well be that the condemnation to
such costs would have been the same though the party appealing had succeeded on
the merits of the case * the condemnation as to costs in such a case by the
court appealed from is not a necessary legal consequence of the judgment on the
merits. It is not sufficient that a matter of law or of principle is involved ;
the party seeking to appeal must have an actual interest to have that question
reviewed. Such was the course followed by the Privy Council in Martfey v- Carson (1), to which I referred in McKay
[Page 17]
the deLisle estate on the
action instituted against the latter by the Thomas Workman estate. As I have said it is the testamentary
executors of the William Work-man estate who are accused of negligence by the
plaintiffs in warranty, and it is for that negligence that the plaintiffs in
warranty ask that the estate itself of William Workman be held liable. It seems
to me doubtful, if, in such a case, it is not only the executors personally,
and not qua executors, against whom the action should have been brought.
I refer on this to what we held in this court in Ferrier v. Trepannier (). However in
the view I take of the case I will assume that the estate of William Workman
was rightly brought into the case through its executors. I may also assume in
favour of the plaintiffs in warranty, present respondents, that their action in
warranty could be brought as it has been, and that they were not obliged to
wait till a condemnation was obtained to then proceed against their warrantors
by a principal action. That seems to me a mere matter of form, and a question
which obviously may give rise to many difficulties in the "procedure under
certain circum-stances, but which, as I view it, cannot affect
a case where the principal action and the action in warranty are both en état, and together submitted for judgment. I refer to the
authorities cited in Gauthier v. Darche (). The
authorities cited in Central Vermont v. La Compagme
d'Assurance (),
from the modern jurisprudence in France, evidently relate to controversies as to
procedure or jurisdiction, and the Court of Queen's Bench, in that case would
perhaps have hesitated to dismiss the action in warranty had they found that
the accident there in question had been caused by the negligence of the
defendant in warranty.
[Page 18]
There are a number of reported cases in France where, for
instance, the return by a bailiff being impugned, the bailiff is sued in
warranty, and called in the case to defend his acts and indemnify the party who
employed him for all condemnations and damages that he may be liable to or
suffer, in consequence of the illegality of said acts. Bioche () refers to
many cases of that nature.
It is after all, a mere question of words and of the name of
the proceeding. For it is only as regards the principal action that the action
in warranty is an incidental demand; between the warrantee and the warrantor it
is a principal action ()
; and that action may be brought only after the judgment on the principal
action. The plaintiff in the principal action may object to the delay which
might result from the defendant's action in warranty, but if he does not I do
not see that the defendant in warranty has any interest to object to the manner
in which he is called in where no question of jurisdiction arises or he does
not suffer any prejudice thereby.
In a recent case of Compagnie l'Abeille, in the Court of Appeal of Paris (), a common
carrier, sued in damages for an accident to one of his passengers, brought an
action in warranty against a third party whose negligence had been the
immediate cause of the accident.
And the books are fill of such instances where two actions en responsabilité are joined under the name of warranty.
In another class of cases an instance of which is re Granier v Cambard () before the Court of Cassation a third
party is brought in as warrantor en garantie
[Page 19]
simple et responsabilité in an action en declaration d'hypothèque ().
The case of The Royal Electric Co.
v. Leonard ()
is distinguishable. There the action in warranty had been taken by the
plaintiff on the principal action, and the action was based on a contract with
a third party. Moreover, the conclusions of the action in warranty, as shown by
the judgment of my brother Fournier who delivered the judgment of the court,
were absolutely untenable.
The appellants' contentions on this point would not seem to me
well founded.
I would, however, allow the appeal, on the ground that the
dismissal of the principal action was, under the circumstances of the case
fatal to the action in warranty. The court having held on the first action that
the defendants deLisle were not liable to the Thomas Workman estate, it follows
that the William Workman estate is not liable towards them, the deLisles. The
declaration in warranty is based on the essential allegation that in so far as
the said principal plaintiffs have suffered any loss in the premises for which
they have any recourse against the said estate deLisle, such loss has been
suffered by the negligence of the said William Workman estate, represented in
the said common office by the said Joel Baker in not looking after the said
Cotté, and preventing him, which they could easily have done with common care
and prudence, from robbing the said Thomas Workman or those he
represented."
Now, it being determined that the principal plaintiffs have
not suffered any loss for which they have any recourse against the estate
deLisle, the estate deLisle, upon their own allegations, have no action in
warranty against the William Workman estate.
[Page 20]
Mais je dois supposer, says Boncenne, (vol. 3, p. 419) ce
qui d'ailleurs est le plus ordinaire, que les deux causes réunies sont
parvenues jusqu'à leur terme commun, avec le demandeur originaire, avec le
défendeur qui s'est, à son tour, constitué demandeur en garantie, et le tiers
qu'il a fait assigné pour y répondre. Le premier perd-il son procès ? Les deux autres le gagnent a la fois, et ii est condamné envers eux à tous les dépens ; car son action avait rendu nécessaire le recours
en garantie.
That is, of course, when the defendant in
warranty was a warrantor of the
principal defendant» If he is not a warrantor, and has wrongly been called in
as such, the action in warranty is dismissed with costs against the plaintiff
in warranty. But in both cases it must be dismissed. No question of that kind
as to costs arises in the present case ; none were asked against the principal
plaintiffs ().
The action in warranty consequently fails, in my opinion
whether the William Workman estate were warrantors of the deLisle estate or
not. If they are not warrantors, cadit questio ? If they are warrantors
it is only of condemnations that might have been given against the warrantee,
not of all false accusations or unfounded complaints that the warrantee might
be subject to.
The plaintiffs in warranty might very well have postponed the
bringing of the action in warranty till after the judgment on the principal
action. They elected to take proceedings against their warrantors before they
had themselves been condemned ; they have done so at their own risks. They
based their action upon an eventuality, and that never happening they alone
must bear the consequences thereof, for the defendants, appellants on this
issue, if at all their warrantors, were warrantors of their damages and condemnations,
not of their fears of damages, nor of contingent
[Page 21]
liabilities. It is not their fault if an unfounded action has
been taken against the warrantee. And it is likewise not their fault if the
warrantee did not get the costs of the action in warranty included in the
judgment of dismissal of the action against the principal plaintiffs.
In the case I previously referred to of La
Compagnie l'Abeille () the
principal action was dismissed in appeal, and the court declared consequently
" qu'il n'y a lieu de statuer sur Ia demande en
garantie," and condemned the plaintiff in warranty to the costs on
his action. "We should perhaps adopt that course here. For, to use the
words of the Cour de Cassation, in another case of 8th
January, 1894 ()
: " Il n'y a plus en effet de garantie
à exercer, lorsque sur la défense du garantie, la demande originaire
tombe."
In a previous case, a considérait of a Court of Appeal was as follows :
Attendu que l'action en
garantie a été soumise aux premiers juges, que s'ils n'y ont pas statue, c'est
que, en écartant la demande principale, ils
n'avaient pas besoin de s'occuper de la demande en garantie ().
And the Cour de Cassation, in an action en
garantie formelle, held
that:
Attendu que l'action principale étant écartée,
il ne peut pas y avoir lieu a garantie ().
And, said the same court in the same
sense, in another case :
Le demandeur qui succombe au principal peut être
condamné aux frais de l'action en garantie, sur le seul motif qu'elle a eu pour
cause la demande principale, sans que la Cour soit tenue d apprécier le mérite
de cette action en garantie ().
I have already remarked that here no costs were asked against
the principal plaintiffs.
[Page 22]
In the province of Quebec, in apposite cases of Peck v.
Harris ()
and Lyman v. Peck (),
on appeal, the principal action having been dismissed, the action en garantie, was also dismissed with costs against the
plaintiff en garantie.
In a case of Aylwin v. Judah (). the court
having dismissed the principal action, held on the action en garantie formelle that the court could not consequently
adjudicate upon it, and ordered the costs thereof to be paid by the plaintiff
in the principal action.
In an action of Fraser v. St. Jorre, and St. .Jorre plaintiff in warranty v. Dumais,
defendant in warranty, Mr. Justice Casault, in 1877, at Kamouraska, having
dismissed the principal action adjudicated as follows on the action in warranty
:
Considérant que le défendeur en garantie était
le garant formel du demandeur en garantie, qu'il aurait dû prendre son fait et
cause et que les moyens qu'il a
invoqués dans ses defenses à la demande en garantie n étaient pas une réponse à
la dite demande en garantie les dites
défenses du défendeur en garantie sont renvoyées avec dépens, et vu le renvoi
de l'action principale, l'action en
garantie est renvoyée sans frais.
I would allow the appeal of the defendants in warranty and
declare that the principal action having been dismissed, a decision on the
merits of the action in warranty has become unnecessary, with an order that the
costs on that issue be paid by the plaintiff in warranty to the defendants in
warranty, distraits to their attorneys.
There remains the appeal on the intervention Moat et al v. deLisle et at.
In consequence of the pretension set forth by the defendants
in an amended plea to the principal action, that the late Thomas Workman was
only a préte-nom, William Moat and Joel C. Baker
the latter both personally
[Page 23]
and in his capacity of executor
under the will of his wife Louisa Frothingham Workman, became intervenants, as representing ten elevenths of the amount sued for by
the Workman estate in the principal action and prayed acte of
their concurrence and approval of the conclusions taken in the principal demand
for one eleventh.
The defendants in pleading to
the intervention practically repeated their defences to the principal action
and again concluded for its dismissal.
The principal action have been
dismissed, the courts below dismissed the intervention. No other judgment was
possible * having espoused the cause of the plaintiffs, their joint owners, the intervenants must bear the consequences of the defeat of the action. Consequently, the
principal appeal being dismissed, the appeal on the intervention must likewise
be dismissed with costs distraits
to the attorneys of the respondents
in that appeal.
A good many irregularities
appear in connection with the proceedings on this issue. They, however, affect
questions of practice, or matters in the discretion of the court of first
instance with which we cannot interfere.
Appeals in the principal action and the intervention dismissed with costs.
Appeal in the action in
warranty allowed with costs.
Solicitors for the appellants : Abbotts, Campbell
&Meredith.
Solicitors for the respondents : Barnard & Barnard.
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