Supreme Court of Canada
Browne v. Pinsoneault, (1879) 3 SCR 102
Date: 1879-04-15
PHILO D. BROWNE, et al
Appellants;
And
CHARLES A. PINSONEAULT, et al
Respondents.
PRESENT.—Ritchie, C.J., and Strong, Fournier, Henry and Taschereau, J.J.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Lease, cancellation of__Rendering of Account__Art. 19, C. C. P. L. C.
S. on the 1st August, 1868, transferred to Appellants (Plaintiffs,) as trustees of S's. creditors, his interest in an unexpired lease he had of a certain hotel in Montreal, known as the Bonaventure building, and in the furniture. On 1st April, 1870, A. P., the proprietor, after cancelling, with the consent of all concerned, the several leases of the said building and premises, gave a lease direct for a term of ten years to one G., at $6,000 a year, of the building, and also of the furniture belonging to S's. creditors, and on the same day by a notarial deed, “agreement and accord," A. P. promised and agreed to pay to Appellants, as trustees of S’s. creditors, whatever he would receive from the tenant beyond $5,000 a year. In February, 1873, the premises were burned, with a large proportion of the furniture, and Appellants received $3,223 for insurance on fixtures and furniture, and $791, being the proceeds of sale of the balance of the furniture saved. The lease with G. was then cancelled, and A. P., after expending a large amount to repair the building, leased the premises to L. P. & Co. for $6,000 a year from October, 1873. Appellants thereupon, as trustees of S's. creditors, sued Respondents representing A. P., and called upon them to render an account of the amount received from G. & L. P. & Co. above $5,000 a year. The Superior Court of Montreal held that Appellants were entitled to what A. P. had received from L. P. & Co. beyond $5,000 ; and on appeal to the Court of Queen's Bench, (appeal side,) this judgment was reversed.
Held,__Affirming the judgment of the Court of Queen's Bench (appeal side,) that the lease to G. terminated by a force majeure, and
[Page 103]
that the obligation of A. P. to pay Appellants the sum of $1,000 out of the said rent of $6,000 ceased with the said lease.
2. That the fact of Appellants having alleged themselves in their declaration to be the "duly named trustees of S's. creditors," did not give them the right to bring the present action for S's. creditors, the action, if any, belonging to the individual creditors of S. under Art. 19, C. C. P. L. C.
APPEAL from a judgment of the Court of Queen's Bench, (appeal side), Province of Quebec, rendered on the 22nd June, 1877.
The facts of the case are the following : -
On the 10th February, 1866, Mr. Pinsoneault leased a building in the City of Montreal, known as the Bonaventure building, to Thomas L. Steele for 7 years from 1st May, 1866, that is to say, up to the 1st May 1873, at the rate of $3,250 a year, and on the 1st November, 1868, two years afterwards, this lease was extended for another period of seven years, from the 1st May, 1873, that is to say, up to the 1st May, 1880, the rent stipulated for the extended term being $5,000. On the 1st August, 1868, Steele, who had made improvements, transferred his interest under the above lease and in the furniture to the appellants, P. D. Brown, Alexander Holmes, John Barry and Henry Millen, "acting as "Trustees for and on behalf of divers firms and persons, "creditors of the said Thomas L. Steele, under a certain "paper writing or memorandum of agreement made "and entered into by and between the said Thomas L. Steele, and his creditors, and hereunto annexed," to secure a sum of about $14,000.
The appellants thereupon, in their capacity of Trustees, sublet the premises to parties who, by reason of various assignments, were, on the 1st April, 1870, represented by one Oviatt. By notarial agreement of 1st April, 1870, the late Alfred Pinsoneault and appellants consented to cancel and set aside all the above mentioned leases, and consented that the hotel and furniture, (except the
[Page 104]
billiard tables,) should be leased by Pinsoneault to one F. Gerriken, from 1st April, 1870, to 1st May, 1880, at an annual rent of $6,000. To this agreement Mr. Oviatt intervened, and consented to the cancellation of the leases, and to the new lease to Gerriken. The subtenants also intervened and consented to the arrangement.
On the same date, 1st April, 1870, Pinsoneault leased the hotel and property to Gerriken for the time above mentioned, ten years and one month, from 1st April, 1870, at an annual rent of $6,000, payable quarterly, and on the same day a notarial compromise or transaction, called acte d’accord, was also passed between the late Pinsoneault and the appellants.
This acte d’accord, after reciting that it had been agreed that the old leases should be cancelled and that a new lease of the building and of the furniture belonging to the Estate Steele should be granted to Gerriken for ten years at $6,000 a year, Mr. Pinsoneault to pay over to the Estate Steele, the difference between the rent under the old and that under the new lease, proceeds as follows ;-
Now these presents, and I the said Notary, witness, " that the said party of the first part agrees with the "said party of the second part, that the said Alfred "Pinsoneault will pay over and account for to the said "parties of the second part the difference between the " said rental, so payable by the said Thomas L. Steele " ($5,000), and the amount of rental payable hereunder " ($6,000), by even and equal quarterly payments after " the first day of May next, on which day one month's "rent becomes due, the proportion whereof is to be "handed over to the said parties of the second part, as soon as received by the said Alfred Pinsoneault, immediately on receipt thereof by the said Alfred Pinsoneault from the then tenant or tenants of said
[Page 105]
premises." * * * * It is further agreed that, upon "the expiration of the said lease to the said Frederick " Gerriken, the said Alfred Pinsoneault shall deliver over "to the said parties of the second part the several articles " of furniture mentioned in the said lease in the state " and condition in which they then shall be found to " be, and the said parties of the second part hereby "acknowledge to have received from the said Alfred Pinsoneault the sum of twelve hundred and seventy" three dollars and fourteen cents in advance of the " proportion of the said several instalments so to be" come payable to the parties hereto of the second part " hereunder, which said amount is to be deducted from " the first payments which shall fall due to them here" under, and the same shall bear interest at the rate of seven per centum per annum until fully paid."
The building was partially destroyed by fire on the 17th March, 1873, and a large portion of furniture was burnt. On the 27 April, 1873, the furniture and effects remaining after the fire were sold by auction, and the proceeds, viz : $791, were paid to Steele's Trustees.
The appellants claimed from the Insurance Companies about 5,000. They obtained $3,223 by way of compromise, for loss on the improvements made by Steele and for loss of rental.
On the 29th August, 1873, Mr. Pinsoneault caused a notarial protest to be served on the appellants. This protest, after reciting the main facts of the case, the fire, the receipt by the appellants of the proceeds of the sale of what remained of the furniture, proceeds as follows:
That the said improvements in said hotel had been "insured by the said Trustees and representatives "of the said Estate Steele, who agreed, after the said fire "to hand over the amount of said insurance to the said "Alfred Pinsoneault, to enable him to replace the said
[Page 106]
"improvements in their original condition before the " fire.
"Wherefore, I, the said Notary, at the request aforesaid, and speaking as aforesaid, do hereby notify the "said Trustees and representatives of the said Estate "of the said Thomas L. Steele that unless, within fifteen "days from the date hereof, they put in the hotel furniture of the same description and nature as that "belonging to them and which was in the said hotel "before the fire as aforesaid, and unless they pay him, "the said Alfred Pinsoneault, an amount sufficient to " place the said improvements in the same condition " in which they were before the fire, he will consider " the arrangements between them at an end and act accordingly."
The appellants took no notice of this protest.
Subsequently, on the 2nd September, 1873, Pinsoneault brought an action against Gerriken to have the lease declared resiliated on account of the fire, and the following admission was fyled in this case ;
That, in the action of Pinsoneault vs. Gerriken en resiliation of lease, Gerriken pleaded that the lease "was already destroyed from the date and by the effect "of the fire, whereupon Pinsoneault prayed acte that "he was free to consider lease resiliated for the future, "which acte was granted to him by the Court."
Mr. Pinsoneault expended after the fire, $10,292, and on 3rd Oct., 1873, gave a lease to Linton, Popham & Co., for seven years for $6,000 a year. The appellants received their proportion of what Pinsoneault had been paid up to the time of the fire.
The action was brought in the Superior Court, Montreal, by the Appellants, Philo. D. Browne, et al, acting in their quality of Trustees duly named of the creditors of Thomas L. Steele, against the Respondents, children and legal representatives of the late
[Page 107]
Alfred Pinsoneault, to enforce the notarial contract (acte d’accord) entered into between the appellants esqualite and their late father, and claimed an account from the respondents for the rent by them, or their auteur, received from Gerriken and from Cooper, Linton and Popham, the tenants occupying the building in question during the period extending from the 1st February, 1873, to the 1st May, 1875.
The respondents pleaded that under the acte d'accord Mr. Pinsoneault's liability was to terminate with the lease to Gerriken, and that the appellants treated the fire as having terminated that lease, by having received the proceeds of what remained of the Steele furniture, and by claiming from the Insurance Company and compromising with them for the insurance on the improvements and on the rental, which amounts they retained and refused to give up to Mr. Pinsoneault, although called upon to do so by the notarial protest of the 29th day of August, 1873, and they concluded that they are not liable to account for any rent from and after the date of the fire.
After issue joined, the appellants, on the 10th May, 1875, brought an incidental or supplementary demand, setting up that the respondents themselves had f been paid by the new tenants, Linton & Co., under the lease, additional rent, making in all $6,000 for the whole year, from the 1st May, 1874, to the 1st May, 1875, taking conclusions to the same effect as in the principal action.
To this supplementary demand the respondents pleaded the same plea precisely as in the principal action.
On the 23 November, 1875, judgment was rendered in the Superior Court (Johnson, J.) holding the respondents liable to account for any rent received from Gerriken by the late Alfred Pinsoneault between the 1st
[Page 108]
February and the 1st May, 1874, and liable, also, for the proportion of rent received by themselves from Linton & Co., from 1st May, 1874, till the 1st May, 1875, and condemning respondents to render an account of said rents within fifteen days of the date of the judgment, and in default thereof, to pay the sum of $1,000, which was the proportion of rent coming to appellants from the amount paid by Linton & Co., to respondents.
No account was rendered by respondents, and on the certificate thereof, the case was inscribed on the principal and on the incidental demand. On 31st January, 1876 the final judgment was rendered against respondents for $1,000, the proportion of rent coming to appellants on the whole sum of $6,000 received from Linton & Co., as rent from 1st May, 1874, to 1st May, 1875.
On appeal to the Court of Queen's Bench for Lower Canada (appeal side) this judgment was reversed, and the appellants (plaintiffs) thereupon appealed to this Court.
Mr. Robertson, Q. C. for Appellants:-
The acte d’accord contains no such condition as is set up in the plea, namely, that Pinsoneault was to pay over the $1,000 to the 1st May, 1880, "on condition "that the lease to the said Gerriken should continue in " force for that period of time."
There is no evidence of record to show the lease to Gerriken from Pinsoneault was cancelled by judgment of the Superior Court.
The plea alleges Gerriken took an action in the Superior Court, under the No. 7, to have the lease resiliated, which action is still pending, and that Pinsoneault brought an action en resiliation and in damages, under the No. 2,705, which is still pending. The admission (No. 4) admits that Pinsoneault took an action in August, 1831, under the No. 1,731, for the
[Page 109]
resiliation of the lease, and admission No. 11, that Gerriken took his action en resiliation at the time mentioned in the plea, but no copy of judgment en resiliation was fyled, and no proof of resiliation whatever was produced, nor even alleged in the pleadings ; nor is there anything to support the statement in the third considerant of the judgment of the Court of Queen's Bench that the lease to Gerriken was annulled by judgment " of the Superior Court." Nor is there any proof before this Court when, or in what action, such judgment in resiliation was rendered; nor whether it was for the force majeure assumed in the judgment now appealed from, or for non-payment of rent, or for the reason set up in the plea, namely, "that the premises were " becoming damaged.''
A resiliation, brought about by Pinsoneault and Gerriken, voluntarily, on the day after the lease, or by reason of actions instituted 18 months after it, to which the now appellants were not parties, should not bind the appellants, or free the now respondents, from their obligation to hand over the proportion of rent received from Linton & Co., under the new lease.
If a force majeure prevented rent from accruing from the date of the fire down to the 1st May, 1874, Pinsoneault and the appellants must suffer proportionally ; but when the premises were repaired, and rent began to run under the lease to Linton & Co., the obligation to hand over to appellants their proportion continued in force.
By the acte d’accord Pinsoneault was to pay over "the difference between the said rentals of $5,000 and $6,000," and this was to be paid immediately on receipt thereof by the said Alfred Pinsoneault from the then tenant or tenants of the said premises.
It was not stipulated as a condition that, if Gerriken ceased to be tenant, the appellants5 rights should cease,
[Page 110]
and Pinsoneault be entitled to the whole rent. The consideration given by the now appellants to Pinsoneault extended over the whole period of the long lease, and so the agreement to pay over the proportion of rent must be held to extend over the same period. Hence the importance of this appeal, which will practically decide the right of the appellants to obtain $1,000 per annum during the whole period of the long lease.
The notice, served on the appellants, of the 9th August, 1873, by the Notary Philips, was to the effect that if they " did not put in the hotel furniture of the " same description and nature as that belonging to them " and which was in the said hotel before the fire, and "unless they pay him, the said Alfred Pinsoneault, an " amount sufficient to place the said improvements in "the same condition in which they were before the fire, " he will consider the arrangements between them at " an end, and act accordingly, and will hold them liable " and responsible for all costs."
Messrs. Linton & Cooper's lease, as appears by its terms, was for a boot and shoe manufactory, and Pinsoneault's consent to fit up and have it used as such factory must be held as clearly shown by the lease itself. To demand of the appellants to put into such a factory the furniture of an hotel would be wholly useless, if not absurd. Both Pinsoneault and the now Appellants must he held to have acquiesced in the lease to Linton & Cooper for a factory. The rent was equal to that paid when the premises were used as an hotel; the risk of fire and cost of insurance were less, and the notice as to putting in furniture must be held as waived by the subsequent appropriation of the premises to the purposes of a factory.
Mr. Barnard, Q. C., for Respondents :
The first point is: whether, under words "tenant or
[Page 111]
tenants" in the acte d’accord, it can be held that "tenants" include those who would occupy after Gerriken's lease should come to an end.
The acte d'accord speaks of a lease to Frederick Gerriken, and shows intention to confine agreement to that lease. The words " or tenants " is used because there were sub-tenants, and this explanation reconciles these words with the whole terms of the lease. " At expiration of lease," means expiration of lease to Gerriken.
The words "from the then tenant or tenants" mean Gerriken and his sub-tenants. Pinsoneault made nothing out of this arrangement.
The conduct of the parties immediately after the fire shows how both parties understood it. The $1,000 was the consideration for the improvements made and for furniture. The Trustees took away their furniture when lease to Gerriken was at an end by fire. They also took the insurance money which represented their improvements.
It has been stated this contract came to an end in a manner unforeseen by the parties, and the dissenting judge thought the Court could deal with the matter in the same way the parties might have done, if they had foreseen the event. But then the Estate Steele should have restored Pinsoneault to his original position, and this they refused to do.
Action was badly brought. No action pro socio for account can be brought unless the Plaintiff himself offers an account.
Pepin v. Christin () ; McDonald v. Miller () ; Miller v. Smith ().
Appellants contend there was no evidence that lease was resiliated by force majeure, or resiliated at all. But there is no doubt the lease has been resiliated,
[Page 112]
and the Plaintiffs have so treated it in their proceedings, and that lease was at an end was assumed by both parties.
The 8th admission by the parties is to the following effect: That in the action of Pinsoneault v. Gerriken en resiliation of lease acte was granted to Pinsoneault by the Court that he was free to consider the lease resiliated, as the lease had been destroyed by the effect of the fire.
The only complication as to this part of the case is that Mr. Gerriken also brought an action against Pinsoneault asking for the resiliation of the lease, and judgment on that action was also rendered on the same day, by the same judge, who appears to have been puzzled by the fact that while the parties both asked for the same thing, each contested the action of the other.
The result, however, of the two actions was that the lease was resiliated from the date of Gerriken's demand, and judgment for rent up to that time was given in favor of Mr. Pinsoneault, whose claim for damages, however, was rejected. The conclusion arrived at was based, it seems, on the view taken by the judge of the law as to the effect of a fire. Had the whole building been destroyed, the lease would have been resiliated de facto without any action being necessary. But as the building was only partially destroyed, an action was necessary, and the tenant must pay his rent up to the date of his demand, although he proved that the damages done had absolutely rendered the premises uninhabitable.
Under any circumstances, the action of the Appellants, as brought, should have been dismissed, because, under our law, no one can sue par procureur. Code of Procedure, art. 19. Here the action, if any, belongs to the individual creditors of Steele.
Mr. Robertson, Q. C., in reply:
If Pinsoneault could lease the property at all
[Page 113]
for $6,000, my client has a right to claim his share. There is no condition in the written contract that he would cease to be entitled to his share the moment the lease to Gerriken terminated. The reason that Plaintiffs sued as Trustees of Steele's creditors is because Pinsoneault, by the acie d'accord, agreed to account to them as such Trustees.
The judgment of the Court was delivered by TASCHKREAU, J.:-
This action is based upon a certain acte d'accord, passed on the 1st April, 1870, between the late Alfred Pinsoneault, of the one part, and the Plaintiffs, present Appellants, acting in their quality of Trustees of Thomas L. Steele, of the other part, and calls upon the Defendants, present Respondents, as the legal representatives of the said Alfred Pinsoneault, to render an account, and pay over certain rents received, and which, it is alleged, the said Pinsoneault had agreed to pay over to the Appellants by the said acte d'accord.
In the Superior Court, the Plaintiffs obtained a judgment against the Defendants, but in the Court of Queen's Bench this judgment was reversed and the Plaintiffs' action dismissed with costs. The Plaintiffs now appeal to this Court from the judgment of the Court of Queen's Bench.
I am of opinion that the appeal must be dismissed. The Plaintiffs sue " in their quality of Trustees duly named of the creditors of Thomas L. Steele,” The rule with us, contained in art. 19 of, the Code of Procedure, is that no one can sue par procureur. Of course, in certain cases, when specially authorized by law to do so, Trustees of certain public bodies may sue and appear before the courts as such. So can an assignee, under the Insolvency Acts. But here the Plaintiffs
[Page 114]
have no such standing. They are merely the attornies of Thomas L. Steele's creditors. It is true that Pinsoneault passed the deed of April, 1870, with them, acting in their quality of such Trustees. But that does not give them the right to appear as such before a court of justice. It is not, because in a deed A appears as attorney of J5, that he may, on that deed, sue as such attorney. In this very deed of April, 1870, Honore Cotte appeared as attorney of the late Pinsoneault, who was absent. It could not be pretended that Cotte could sue the Appellants on that deed, in his said quality of attorney. For the same reason, the Appellants cannot sue Pinsoneault, or his representatives, on this deed, in their quality of Trustees of Steele's creditors. Upon this ground alone the Plaintiffs' action cannot stand.
But I go further, and say that, on the merits of the case, the Plaintiffs' action was rightly dismissed. I fully concur in the remarks which the learned Chief Justice of the Court of Queen's Bench made at the rendering of the judgment in the court below. It appears that on the 10th February, 1866, Pinsoneault leased a building called the Bonaventure building, or St. James' Hotel, to Thomas L. Steele for seven years, from 1st May, 1866, at the rate of $3,250 a year, and that on the 7th March, 1868, this lease was extended for another period of seven years, that is to say, up to the 1st May, 1880, the rent for these last seven years being $5,000. In 1868, Steele transferred his interest in the said lease to the Plaintiffs, acting as Trustees for his, Steele’s, creditors. In 1870, the Plaintiffs and Pinsoneault passed the acte d'accord in question. By this deed the lease of November 1st, 1868, of this building, until the first of May, 1880, was cancelled, and a fresh lease of it made by Pinsoneault to one Gerriken for the unexpired term, that is to say, up to
[Page 115]
the first May, 1880, at the rate of $6,000 a year. It was agreed that the fixtures and furniture then in the building should remain during Gerriken's lease. Pinsoneault agreed to pay to the Plaintiffs whatever he should receive from the tenant beyond $5,000 a year. In 1873 this building was burnt, with a large portion of the furniture. Pinsoneault received his insurance on his property, and the Plaintiffs received $3,223 for insurance on furniture, as well as another sum of $791, by the sale of furniture, saved from the fire. The lease to Gerriken was terminated by the said fire, and was subsequently annulled by a judgment of the Superior Court. Pinsoneault expended $10,292 in repairing the building, and leased it to Linton, Popham & Co., for $6,000 a year, from October, 1873. The Plaintiffs have received their proportion of what Pinsoneault had been paid up to the time of the fire, but now claim an account of what he has received since the fire, both from Gerriken and from Linton, Popham & Co., above $5,000 a year. To the Plaintiffs' demand, the Defendants have pleaded that they have received nothing from Gerriken since the fire, and that, the lease to Gerriken having terminated by the fire, the Plaintiffs were not entitled to any portion of the monies received by them, the Defendants, since.
I think that the Plantiffs, under the circumstances, have no claim against the Defendants. They have received over $4,000 for the furniture and fixtures which were in the building at the time of the fire. Though summoned to do so, they refused to replace in the said building an amount of furniture equal to that which stood therein before the fire. They have treated the lease to Gerriken as terminated by the fire. I do not see how they can now claim from the defendants $1,000 a year on a property on which Pinsoneault has expended $2,000 more than he received to secure a new tenant. Pinsoneault has
[Page 116]
taken back his property, the Plaintiffs their furniture, and the contract between the parties has been put an end to by a contingency not provided for.
I am of opinion the appeal should be dismissed with costs.
Appeal dissmissed with costs.
Solicitors for Appellants : A. & W. Robertson.
Solicitor for Respondents : Edmund Barnard.
Email this Content