Supreme Court of Canada
Sale v. McMillan, [1932] S.C.R. 543
Date: 1932-03-24
Sale and Sale
and
McMillan
1932: February 24; 1932: March 24.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Solicitors—Action for payment of bill of
costs—Alleged absence of retainer—Instructions given to solicitors by litigant’s
husband—Authority of husband—Ratification by litigant’s conduct—Estoppel.
APPEAL by the plaintiffs from the judgment of
the Court of Appeal for Ontario, which, reversing the judgment of McEvoy J.,
dismissed the action.
[Page 544]
The action was brought by a firm of solicitors
against the defendant as executor of the will of Mrs. McMillan, deceased,
for payment of a bill of costs for alleged services in conducting certain
litigation for the said deceased. The defendant denied that the deceased
retained the plaintiffs to act for her in the said litigation. The trial judge,
McEvoy J., gave judgment for the plaintiffs, which was reversed by the Court of
Appeal.
On the appeal to the Supreme Court of Canada, after
hearing the arguments of counsel, the Court reserved judgment, and on a
subsequent day delivered judgment allowing the appeal with costs and restoring
the judgment of the trial judge. Written reasons were delivered by Duff J.,
with whom Rinfret, Lamont and Smith JJ. concurred, and by Cannon J.
Duff J. held that it was clear that
Mrs. McMillan’s husband had made himself responsible at each stage of the
litigation, and had fully committed himself in respect of the appellants’
bills; the one point was whether or not Mrs. McMillan herself, who was the
real litigant, was bound. There was no formal retainer by her nor anything
personally communicated by her to the appellants which, in itself, could have
amounted to a retainer of the appellants by her. But her husband was the
general manager of her property in Windsor, and there was evidence also to shew
that she was aware that the litigation was proceeding on her account and
necessarily, therefore, aware that her husband was interesting himself in it.
She gave a bond for security for costs, paid one of the accounts with her own
cheque, and there was abundant evidence that accounts sent to her were
received, because they were brought in later by her husband. The appellants
were for a long period collecting rents and crediting the amounts to the
expense of litigation; and in the defence a counterclaim was set up alleging
that appellants had received as solicitors for Mrs. McMillan certain
[Page 545]
monies and did not pay them, or account for
them, to her, and asking for an account. There was the series of actual
occasions on which the appellants acted in the most open way, and to her
specific knowledge, as her solicitors; in other words, there was a ratification
of the acts of her husband in retaining the appellants, as he undoubtedly did,
on her behalf. The application for leave to appeal to the Privy Council,
opposed by appellants on her behalf, was in the litigation in respect of which
most of the bills were rendered; the party to the litigation was Mrs. McMillan
who was the owner of the property concerned; her husband very properly applied
for assistance from the Essex Border Utilities Commission in the cost of
carrying on the litigation; the sum proposed to be advanced by the Commission
was not regarded as anything like the whole of the costs. It was very clearly
proved that Mrs. McMillan permitted her husband, in the course of managing
her affairs on the Canadian side of the line, to act for her in legal matters.
She had, by her conduct, put it entirely beyond her power to dispute her
husband’s authority to act as her agent in giving instructions in reference to
legal matters to the appellants.
CANNON J. held that there was no doubt that
Mr. McMillan requested appellants to oppose the petition for leave to
appeal before the Privy Council. Mrs. McMillan, before and after,
certainly held out her husband as her agent for everything connected with the
property in question. If, in fact, no agency existed, her husband, now her
executor, should have sworn to that effect, but had not done so. The trial
judge was right in maintaining the action.
Appeal allowed with costs.
G.F. Henderson K.C. for the appellants.
J.B. Aylesworth for the respondent.
Email this Content