Supreme Court of Canada
Nasmith v. Manning, 5 S.C.R. 417
Date: 1881-02-12
John Nasmith (Plaintiff)
Appellant;
and
Alexander Manning (Defendant)
Respondent.
1880: November 16; 1881: February 12.
Present: Ritchie, C.J., and Fournier, Henry,
Taschereau and Gwynne, J.J.
APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
R.W. Co.—Action by creditor against a
shareholder—Conditional agreement—Allotment, notice of, necessary.
The appellant, a judgment creditor of the T.G.
& B. Railway Co., sued the respondent as a shareholder therein, for
unpaid stock. From the evidence it appeared that the respondent signed the
stock book, which was headed by an agreement by the subscribers to become
shareholders of the stock for the amount set opposite their respective names,
and upon allotment by the company “of my or our said respective shares” they
covenanted to pay ten per cent of the amount of the said shares and all future
calls. The company, on the 1st July passed a resolution instructing their
secretary to issue allotment certificates to each shareholder for the amount of
shares held by him. The secretary prepared them, including one for the
respondent, and handed them to the company’s broker to deliver to the
shareholders. The brokers published a notice, signed by the secretary, in a
daily paper notifying subscribers to the capital stock of the T.G. & B.
Railway Co., that the first call of ten per cent. on the stock was required
to be paid immediately to them. The respondent never called for or received his
certificate of allotment, and never paid the ten per cent, and swore that he
had never had any notice of the allotment having been made to him.
The case was tried twice and the learned
judge, at the second trial, although he found that the respondent had
subscribed for fifty shares and had been allotted said fifty shares, was unable
to say whether respondent had received actual notice of allotment.
Held,
affirming the judgment of the Court of Appeal, that the document signed by the
respondent was only an application for
[Page 418]
shares, and that it was necessary for the
appellant to have shown notice within a reasonable time of the allotment of
shares to respondent, and that no notice whatever of such allotment had been
proved.
[Ritchie, C.J., and Gwynne, J.,
dissenting.]
APPEAL from a judgment of the Court of Appeal
for Ontario,
reversing a judgment of the Court of Queen’s Bench, and directing a verdict to be entered for
the defendant.
This was an action or proceeding, in the nature
of scire facias quare executionem non, instituted by the plaintiff, a
judgment creditor of The Toronto, Grey and Bruce Railway Company against
the defendant, who, as the plaintiff alleges and contends, is a holder of fifty
shares in the capital stock of the said company, of which there remains still
unpaid an amount more than sufficient to pay and satisfy the plaintiff’s
judgment.
To the plaintiff’s declaration the defendant
pleaded:
1. That he was not nor is the holder of the said
shares as alleged.
2. That he was induced to become the holder of
the said shares by the fraud of the said company, and that within a reasonable
time after he had notice of the said fraud, and before he had received any
benefit from or in respect of said shares or any of them, and before the debt
due by the company to the plaintiff was incurred, he repudiated and disclaimed
the said shares and all title thereto and all liability in respect thereof, and
gave notice thereof to the company, whereof the plaintiff had notice.
3. That he was induced to become the holder of
the said shares by the fraud of the said company and the plaintiff, and that he
repudiated the stock after notice of the fraud, as in the second plea, and
afterwards, in order to defraud the defendant, the plaintiff, colluding
[Page 419]
with the said company, instituted the action in
which the plaintiff obtained judgment against the company.
4. That the company had sufficient goods to
satisfy the plaintiff’s judgment and from which the amount of the execution
could and would have been realised, but for the fraud and collusion of the
plaintiff and the said company, whereby the sheriff was induced falsely to
return the said execution, as if the said company had no goods and chattels in
his bailiwick whereof he could make the amount of the said execution in whole or
in part.
5. That it was agreed between the defendant and
the said company that if the defendant would sign an agreement to take the
shares, the company would give to the defendant and one John Ginty a
contract for the construction of the company’s railway, and that until the said
contract should be given the defendant should not be bound by his signing said
agreement, that relying upon such agreement of the said company and not
otherwise, the defendant did sign the said agreement to take said shares, but that
the company have refused to give the said contract to defendant and the said John
Ginty.
The sixth plea is somewhat similar to the fifth.
Issue being joined the case came down for trial
before Armour, J., without a jury in the spring of 1878, (the evidence
is set out in the report of the case in 29 U.C.C.P. 34 and 5 Ont. App. Rep.
127,) when a verdict was rendered in favor of the plaintiff. Upon a motion to
set aside that verdict, a rule was made absolute for a new trial in consequence
of a then recent decision in Denison v. Lesslie in the Court of Queen’s Bench and in the
Court of Appeal of Ontario, and in consequence of the construction which
the company by a certificate of allotment produced at the trial seemed to
[Page 420]
have put upon the document signed by the
defendant, namely, that it was only an application for shares, which if a
correct construction would, upon the authority of several English cases, have
required a response either in writing or verbally, or by conduct communicating
to the defendant that the company had accepted his application and himself as a
shareholder before he could be liable as such, a point as to which there had
been no finding at the trial.
The case accordingly went down to trial a second
time and was tried by Cameron, J., without a jury, who by his verdict
found: 1. That the defendant subscribed for fifty shares in the stock book of
the company, and that the fifty shares were allotted to him by the company, and
that the company sent notice to him of calls, and that his name was published
in the Globe newspaper as a shareholder, and that he was at the time of
such publication a subscriber to the Globe, and that all was done by the
company to give the defendant a claim against the company for the stock and to
have any benefit that might accrue therefrom. He further added that he could
not say that the defendant received actual notice of the allotment, but he
found that the company by notices sent to his address gave him notice of their
considering him a shareholder. Upon this verdict being moved against the Court
of Queen’s Bench after argument held, that the evidence supported the findings
of the learned judge.
Upon appeal by the defendant to the Court of
Appeal of Ontario, the majority of that court reversed the judgment of
the Court of Queen’s Bench, and ordered a verdict and judgment to be entered
for the defendant. From that judgment the plaintiff has appealed to this court.
The printed documents connected with the case,
viz.: the heading of the stock book, extract from the minutes
[Page 421]
of a meeting of the directors of the company,
the form of certificate of allotment, resolutions and notices, &c., are
referred to at length in the judgment of Ritchie, C.J., hereinafter
given.
Mr. Blake, Q.C., and Mr. Proctor, for appellant:
The appellant is a judgment creditor of the Toronto,
Grey & Bruce Railway Company, incorporated by 31 Vic., c. 40, Ontario.
The several clauses of “The Railway Act”,
relating to calls, shares, and their transfer, are expressly incorporated therewith.
By referring to sections 1, 2, 6, 7, 15, 17, 18,
27 and 28 of this Act it will be seen that in the mind of the legislature the
word “subscriber” is equivalent to the word “shareholder.”
The paper signed by Manning was a paper
prepared by the company, and was executed under seal. The Act empowered the
provisional directors to open stock books, to make a call upon the shares
subscribed therein, and to call a meeting of the subscribers for the
organization of the company, and it was in pursuance of this statute that the
subscription of the respondent was made in the company’s stock book under his
hand and seal. It seems fanciful to give decisions in this country based on
decisions of another country where an entirely different mode of dealing with
subscribers exists. We all know of the mania that prevailed in England
some years ago, to get stock in a joint stock company. It was sufficient to
announce that a company was being organized, the eagerness of the public was
such that there were immediately more applications for stock than was wanting,
and it was only after allotment that the applicants could be said to be
shareholders.
The document signed by respondent being a
covenant to pay under seal, the assent of the company thereto is
[Page 422]
sufficient, and such assent might be inferred,
if, as in this case, it was not repudiated by the company; but the evidence
shows the company did actually assent to the subscription, and sent respondent
notices to pay calls.
The earliest decision on this point in our courts
was that given by the Court of Common Pleas in the case of Smith v. Spencer; so again in Lake Superior Navigation
Co. v. Morrison; so
again in European & North American Railway Co. v. McLeod.
Now, what are the admitted facts as to the mode
in which Mr. Manning became what he did become.
The capital stock of the company was $3,000,000.
It was never contemplated to get more than 10 per cent. of that amount
subscribed, the intention of the provisional directors being to get a
respectable list of Toronto shareholders in order to induce the counties
to give the company municipal aid. Accordingly, after a deal of manipulation
and canvassing, Mr. Laidlaw, one of the most active provisional
directors, and Mr. Campbell, the company’s broker, succeeded in getting
subscriptions for their stock to the amount of $300,000, the amount required
for organization. Manning was induced to subscribe stock at the instance
of Mr. Laidlaw. This subscription was admitted by him, although at first
he alleged it was conditional, and his main defence was that he was only to
become a shareholder on his getting the contract to build the company’s road
about to be constructed in connection with one John Ginty, who was also
a partner of his in building another road. The court held this defence could
not avail him, but in the latter stage of the proceedings he thought it better
to say he was not a shareholder at all. But how can it be seriously contended
that the company who
[Page 423]
wanted all the subscribers they could get, who sent
out brokers canvassing, intended to take conditional subscriptions? There, was
no danger of any subscriber not having his stock. It was even deemed necessary
to publish the stock sheet, in order to show who were interested in the scheme,
and that the company was bonâ fide organized. All this was known to
Mr. Manning, and we are entitled to contend that what took place is
real evidence of his becoming a shareholder. Then, also, it is in evidence that
he not only consented to sign the list of subscribers which was published, but
he aided publicly the directors in getting municipal bonuses and aid. This, it
is argued, does not prove he had knowledge of the allotment, but surely he knew
he was a shareholder, and if anything more was to be done, it was only some
mere formal matter. Under all these circumstances we have very strong evidence
to sustain that construction upon which we primarily rely, i.e., that
the effect of signing this document was to create that relation between the
company and the respondent as to make him a subscriber. Within the four corners
of this paper we find a perfect contract, the minds of both parties were
brought together.
The second point relied on is, that if it was an
imperfect contract, the only condition was the “allotment,” and upon allotment,
and not upon “notice of allotment,” the respondent became a shareholder. What
the court of appeal has done is this: that they have interpolated the words
“upon notice of” in this document under seal. They have not taken into
consideration that acceptance by the subscriber had taken place. Now, there can
be no doubt that an allotment was made, and we cannot therefore be hampered
with this objection, for the evidence shows that the company sent respondent
calls to pay.
If notice of allotment were necessary it may be
implied
[Page 424]
from the facts of the case, or the conduct of
the parties; and the court of first instance having found that respondent was
aware of the company’s acceptance of his subscription, or was in a position to
have known the same and could have taken advantage of any benefit which might
have resulted from the acceptance of himself as a shareholder, consequently he
is liable. Levitas’ Case; Wheatcroft
Case; Pritchard
v. Walker; Crawley’s
Case; Fletcher’s
Case.
If the respondent expected or required notice of
the allotment or call, he should have taken pains to have informed himself when
the same was made, for there was a duty upon him to pay the calls made by the
directors. Sec. 48, 49 and 50, Con. Stat., c. 66. Sparks v. The Liverpool
Water Co.; Aylesbury
Railway Co. v. Mount.
The cause having been twice tried, and a verdict
on both trials having been for the plaintiff upon evidence deemed sufficient by
the learned judges who tried the case, and the same having been expressly
approved of by the court below, the Court of Appeal should not have turned the
verdict so obtained into a verdict for defendant, but should have ordered a new
trial. Merchants’ Bank v. Bostwick.
The following authorities were also cited and
commented on by counsel: Denison v. Lesslie; Gun’s Case; Nixon v. Hamilton; Harrison’s Case; Moore v. Murphy.
Mr. Ferguson, Q.C, for respondent:
If the true construction and meaning of the
document
[Page 425]
signed by respondent, is, that it was not an application
for shares, but a subscription without any condition, I must admit the
authorities cited by the learned counsel for appellant have great weight; but
if it is only an application for shares, and that on the face of the document
itself there was something else to be done, it is clear the company have no
right against the respondent until they do that further act—so I say that upon
signing this document respondent did not become eo instanti a
shareholder. By this document the company need not allot unless they choose,
and therefore at that time there was no complete contract, the mind of the
company and of the subscriber had not yet come to any decision as to the
ownership of the $5,000 stock.
In this document which is said to be the stock
book, we find the expression “upon allotment,” it shows clearly that in the
minds of the parties there was to be an allotment. The proposal was to take, if
allotment is made and not otherwise, and it is upon these words that the
construction of this agreement must turn. The remedy sought is an extraordinary
one given by statute, and unless the requisites of that statute were in all
matters strictly made out by the appellant, he was not entitled to succeed.
Now, in order to make out that the respondent
was a shareholder, and liable as such by reason of his having so signed the
same, it was necessary for the appellant to prove that the respondent had
received notice of an allotment of the shares, or at least that there had been
a response to this application received by, or communicated to, the respondent,
stating, or to the effect, that the said company had accepted his application
and himself as a shareholder of the said shares, and this within a reasonable
time after the making of such application, and in this respect the evidence
adduced by the appellant entirely failed, and there was a positive
[Page 426]
denial by the respondent of his having received
any such notice of allotment or response. It was not proved that there was any
verbal response to the said application, even if that were possible and would
be sufficient. Nor was it proved that any letter or other document containing
any such response was delivered to the respondent or even mailed to him, if
this last could have been held sufficient in the face of the respondent’s
denial of the receipt of it, which it could not. Nor was it proved that the
respondent had any knowledge of an allotment of the said or any shares to him,
and besides, it appears by the evidence and the circumstances thereby
disclosed, that a long series of years passed away after the time of the said
application during which neither the said company nor the respondent considered
that the respondent was such shareholder, and for these reasons it was not
established that the respondent was such shareholder, and the judgment of the
court below is correct and should be affirmed. Denison v. Lesslie; Redpath’s case; Wall’s case; Pellatt’s case; Gunn’s case; British American Tel. Co. v. Colson; Kipling v. Todd; Ness v. Angus.
The newspaper publication and the publication of
list of shareholders relied upon by the appellant as being some evidence that
the respondent had notice or knowledge that the company had accepted the said
application and the respondent as a shareholder, were not evidence against the
respondent, and besides; knowledge of them was not brought home to the
respondent by the evidence.
The findings of the learned judge who tried the
cause were not sufficient to warrant the entry of a verdict for
[Page 427]
the plaintiff (the appellant), nor were the said
findings supported by the evidence, and it was competent to the court below, if
necessary, to reverse these findings, they being based, at least in part, upon
inferences of fact drawn by the learned judge, from facts stated in the
evidence and not resting upon different degrees of credibility considered to be
due to the witnesses from their demeanor before the court, and, moreover, I
submit there was no finding on the point for which the case was sent back The Glannibanta; in re Randolph.
The learned counsel also referred to and relied
upon the authorities following: Household Fire Insurance Company v. Grant; Reed v. Harvey; Byrne v. Van Tienhoven; Jones v. Hough; McCraken v. McIntyre; Nasmith v. Manning.
Mr. Blake, Q.C, in reply.
RITCHIE, C.J.:—
The Toronto, Grey & Bruce Railway Co.
was incorporated by 31 Vic., c. 40 of the Ontario Legislature, by
the second section of which act certain clauses of the Railway Act of the
Consolidated Statutes of Canada are incorporated with and to be deemed a
part of this act, viz:—
The several clauses of the Railway Act of
the Consolidated Statutes of Canada, and amendments with respect to the
first, second, third, fourth, fifth and sixth clauses thereof, and also the
several clauses thereof with respect to “interpretation,” “incorporation,”
“powers,” “plans and surveys,” “lands and their valuation,” “highways and
bridges,” “fences” “tolls,” “general meetings,” “president and directors,”
“their election and duties,” “calls,” “shares and their transfers,”
“municipalities,” “shareholders,” “actions for indemnity and fines and
penalties, and their prosecution,” “by-laws, notices,
[Page 428]
&c.,” “working of the railway,” and
“general provisions,” shall be incorporated with and be deemed to be a part of
this act, and shall apply to the said company and to the railway to be
constructed by them, except only so far as they may be inconsistent with the
express enactments hereof, and the expression, “this act,” when used herein,
shall be understood to include the clauses of the said Railway Act so
incorporated with this act.
Section 14 provides:—
As soon as shares to the amount of three
hundred thousand dollars of the capital stock of the said company, other than
by municipalities, shall have been subscribed, and ten per cent. thereof paid
into some chartered bank, having an office in the city of Toronto (which
shall on no account be withdrawn therefrom, unless for the service of the
company), the directors shall call a general meeting of the subscribers to the
said capital stock, who shall have so paid up ten per cent. thereof for the
purpose of electing directors of the said company.
Section 17 provides:—
At such general meeting the subscribers for
the capital stock assembled who shall have so paid up ten per cent. thereof,
with such proxies as may be present, shall choose nine persons to be the
directors of the said company, and may also make or pass such rules and
regulations and by-laws as may be deemed expedient, provided they be not
inconsistent with this act.
Section 27 provides:—
On the subscription for shares of the said
capital stock, each subscriber shall pay forthwith to the directors for the
purposes set out in this act, ten per cent. of the amount subscribed by him,
and the said directors shall deposit the same in some chartered bank to the
credit of the said company.
Section 28 provides:—
Thereafter calls may be made by the
directors for the time being, as they shall see fit, provided that no calls
shall be made at any one time of more than ten per cent. of the amount
subscribed by each subscriber.
By the consolidated statutes of Canada
“shareholder” shall mean any subscriber to or holder of stock in the
undertaking, and shall extend to and shall include the personal representatives
of the shareholder.
[Page 429]
Under heading “shareholder:”
Each shareholder shall be individually
liable to the creditors of the company to an amount equal to the amount unpaid
on the stock held by him for the debts and liabilities of the company, and
until the whole amount of his stock has been paid up, but shall not be liable
to an action therefor before an execution against the company has been returned
unsatisfied in whole or in part, and the amount due on such execution shall be
the amount recoverable with costs against such shareholder.
This being the state of the law, the company
prepared a stock book and solicited subscriptions to stock, and the plaintiff
signed the stock-book containing this agreement:
EXHIBITS.
(1)
HEADING
OF STOCK-BOOK.
We, the several persons, firms and
corporations whose names and seals are hereunto subscribed, severally and
respectively agree to and with the Toronto, Grey and Bruce Railway Company,
and bind ourselves, our executors and administrators or successors
respectively, to become holders of the capital stock of the Toronto, Grey
& Bruce Railway Company for the number of shares of one hundred dollars
each, and amounts set opposite to our respective names, and upon the allotment
by the said company of my or our said respective shares, we severally and
respectively agree to pay to the said company ten per centum of the amount of
the said shares respectively, and to pay all future calls that may be made on
the said shares respectively; provided always, that no calls shall be made until
sixty days shall have elapsed from the time that a previous call was made
payable, and no call shall exceed ten per centum of the amount subscribed.
Toronto,
April, 1869.
|
1869.
|
Name.
|
No of Shares.
|
Amt.
|
Seal.
|
Residence.
|
Amt. Paid.
|
Witness.
|
|
May 14
|
John
Ginty.
|
40
|
$4,000
|
Seal.
|
Toronto
|
10p.c.
|
N.
Barnhart.
|
|
June 19
|
Alex.
Manning.
|
50
|
5,000
|
Seal.
|
Toronto
|
|
C.J. Campbell.
|
(2)
EXTRACT
FROM THE MINUTES OF A MEETING OF THE DIRECTORS OF THE TORONTO, GREY & BRUCE
RAILWAY COMPANY, HELD ON 1ST JULY, 1869.
The president stated that on the previous
evening the amount of
[Page 430]
stock required by the charter for
organizing the company, viz., $300,000, had all been subscribed, and that
therefore it was necessary at once to devise means to collect and pay into the
bank the first instalment of ten per cent. on the shares, so that the meeting
for the election of directors and organizing the company could be called at as
early a date as possible; the brokers, Messrs. Campbell & Cassels,
were instructed at once to collect the first instalment of ten per cent. on the
stock, and to have the amount required by law, viz., $30,000, paid into the
bank to the credit of the company before Saturday, the 10th July, so as to
enable an advertisement calling the general meeting of the shareholders to
appear in the Ontario Gazette of that date; the secretary was also
instructed to prepare advertisements for the Ontario and Dominion
Gazettes, and such other papers as were necessary, calling the meeting, the
date of which was left to be decided by the solicitor; the secretary was also
instructed to issue allotment certificates to each shareholder for the amount
of shares held by him.
(Signed,) John
Gordon.
(3)
FORM
OF CERTIFICATE OF ALLOTMENT.
Toronto, 1st July, 1869.
To Alexander Manning, Esq., Toronto:
This is to certify that the Toronto,
Grey & Bruce Railway Company, in accordance with your application for
fifty shares of $100 each of their capital stock, have allotted to you fifty
shares, amounting to $5,000, the first instalment of ten per cent. thereon
being payable forthwith, and all future calls to be made at a rate not
exceeding ten per cent. on the amount of said shares, and at intervals of not
less than sixty days.
W.
Sutherland Taylor,
Secretary
FORM
OF ENDORSEMENT ON NOTICE.
$500. Toronto,
3rd July, 1869.
Received from the within-named the sum of
five hundred dollars, being amount of first instalment of ten per cent. on the
amount of stock allotted by the within certificate.
Campbell
& Cassels
(4)
COPY
OF A RESOLUTION PASSED AT THE MEETING OF THE SHAREHOLDERS HELD ON 10TH AUGUST,
1869.
It was then moved by Mr. John L.
Blaikie, seconded by Mr. Ginty, and unanimously resolved, That the
Directors this day elected be instructed to pay an amount not exceeding four
dollars per meeting
[Page 431]
to the provisional directors for each
meeting which they have severally attended.
Yours
truly,
(Signed,) W.
Sutherland Taylor,
Sec.-Treas.
NOTICE
PUBLISHED IN “GLOBE.”
TORONTO,
GREY & BRUCE RAILWAY NOTICE.
Subscribers to the capital stock of the Toronto,
Grey & Bruce Railway Company are hereby notified, that the first call
of ten per cent. on the stock is required to be paid immediately to the brokers
of the company, Messrs. Campbell & Cassels, 60 King Street East.
By
order,
(Signed,) W.
Sutherland Taylor,
Secretary.
The above notice appeared in the daily Globe
from the 2nd to the 9th July, 1869.
(5)
TORONTO,
GREY & BRUCE RAILWAY.
Take notice, that a further call of ten per
cent. on the capital stock of the Toronto, Grey & Railway Company
has been authorized by the directors, and that the same is payable at the
company’s offices, corner of Front and Bay Streets, Toronto, on
the 16th day of May, 1870.
By order of the Board.
(Signed,) W.
Sutherland Taylor,
Secretary.
The above is a copy of the notice for calls
in Gazette on the dates mentioned by the secretary of the company.
I think on allotment by the company, the
subscribers became in fact and in law shareholders in the company, liable to
pay to the company ten per cent. of the amount of the shares, and to pay all
future calls, subject to the proviso in the memo. so signed and sealed; and
they became entitled to all privileges, benefits and advantages that might
accrue to such shareholders in said company, and became subject to all
liabilities and responsibilities attaching to shareholders in the company.
The contract in this case was this: The company
applied to the respondent to take shares; the respondent
[Page 432]
agreed to do so, and bound himself under seal to
pay a percentage on allotment, the assent of the respondent to the application
of the company, and the binding agreement signed and sealed by him, imposed on
the company the binding duty of allotting the specified shares to him, and
constituted an agreement completed, binding on both parties, which either could
enforce, entirely distinguishable from an agreement merely resting on an
application for shares. The applicant was the company, and the sealed
undertaking of the respondent was the acceptance of the company’s offer, and
fixed on the company the obligation to allot them, and when so allotted, they
became eo instanti vested in the respondent. In other words, the company
sent an offer by which they were bound, and under which, on receiving back the
offer accepted, signed and sealed by the respondent, a contract complete and
binding on both sides was constituted. This conclusive and binding agreement on
both parties was, on the respondent’s part, that he should become a shareholder
of 50 shares and pay; and, on the company’s part, that they should grant him
the said fifty shares, and the company being under this direct obligation to
grant those shares, discharged that obligation by allotting to him the shares
in a due and formal manner, and regularly placing him on the register. Surely
the contract was then full, perfect and complete; a valid and unimpeachable
contract, the effect of which was to make this respondent the holder of 50
shares in the company. I think there was quite enough to satisfy the judge who
tried this case, that the respondent knew that the company had acted on the
agreement, had treated him as a shareholder, and had placed him on the
register, and so had notice that the company had allotted to him the stock; and
had the application come from the respondent to the company, that would have
been sufficient to show that
[Page 433]
he knew that the company had assented to his
request, and had completed the contract. In fact, this is to be gathered from
defendant himself.
He says:—
I am the defendant. I have not and never
had any papers or documents relating to the shares in question in this action.
I have no allotment of shares, and never heard of any allotment. Some eight
years ago I put my name down for shares conditionally in the Toronto, Grey
& Bruce Railway, and in the Toronto & Nipissing Railway. I
cannot swear what amount I took in each; I think it may have been about $5,000
worth in the Toronto, Grey & Bruce, and $2,000 or $2,500 in the Toronto
& Nipissing. This was just before the companies were organized, to the
best of my recollection. George Laidlaw asked me to take these shares.
No call was ever made on me for these. I have never paid any call or anything
on the Toronto, Grey & Bruce shares. I forget what it was that I
signed. I do not know whether it was the stock book that I signed or some other
paper. The proposal on the part of Laidlaw was made on the corner of King
and Church Streets, I think the south-west corner; we agreed there, but
I cannot positively say where I signed. Mr. C.J. Campbell came
up afterwards, or else Laidlaw took Ginty and myself round to his
office. I do not know who was present when we signed; I think that Ginty
was there, and signed at the same time that I did. I think that Campbell
was present when I signed. As far as I recollect, there was nothing appearing
in the books in connection with my name, except my signature. I refused to take
stock in the first place; then there was a verbal agreement made between Laidlaw
and myself. I would not have taken the stock except for the inducement that Laidlaw
offered. He asked Ginty and myself to take stock, and I refused. He
wanted to raise a large amount of stock here, so as to show to the people
outside who were giving bonuses that the people here were contributing largely
to the undertaking. He agreed that if we took stock we should get the contract
for building the road; that we would not be called on to pay unless we got the
contract, and he said that if we got the contract, under any circumstances we
should not be called on to pay more than ten per cent. upon the stock. Upon
that agreement and conversation we agreed to take the stock. I think that we
each took stock separately. We tendered for the Nipissing work and got
it; we also tendered for the Grey & Bruce Railway and did not get
it. I supposed that the contracts would be let by tender, but not necessarily
to the lowest tender. Laidlaw was the only one who had
[Page 434]
made the agreement with me. I had been out
with him and Gordon canvassing for a week in the townships. If I got the
contract I understood that my stock would be paid out of my estimates, but not
more than ten per cent. I supposed that if I had got the contract I should have
been in the same position as any other stockholder. I subscribed to the Toronto
& Nipissing on the same terms. They were separate transactions, but Laidlaw
was acting in both as the prime originator. We got the contract for the Nipissing;
I paid up my stock in full in this. My stock was paid principally out of my
estimates. I sold out my stock in this road, and hold no stock in it now.
Tenders were called for the Toronto, Grey & Bruce, and I put in one;
the tender was that of Manning & Ginty. I do not know why it was
refused. I cannot tell whether it was the lowest. When my tender was rejected,
I did not consider that I had any stock. No director ever spoke to me about my
stock. I never was asked to pay any calls; I may have been notified when the
first call was made. I never wrote to the directors about my stock, nor they to
me. I was surprised when I was served with the writ in this action.
By Mr. Ferguson—I never at any time
paid anything on account of the stock, either when I signed or afterwards. It
was distinctly agreed that I was not to pay anything on it unless I got the
contract; without this condition, I would not have taken a cent’s worth of
stock. There was no connection between my subscriptions to the two railways
each was a separate transaction. I did not get the contract for the Toronto,
Grey & Bruce road, and never was asked to pay; I never was a shareholder.
I would have been a shareholder if I had got the contract. Mr. Laidlaw
was the moving spirit in the undertaking; there would have been no Toronto,
Grey & Bruce Railway without him. I do not recollect whether they had
the act at the time that he solicited me to take stock: he was the chief actor
in soliciting stock. The Toronto, Grey & Bruce Railway is in
operation, and there is a large amount of rolling stock in use on it, and the
company has other property, such as furniture and safes at all of their
stations, and tools on the line of their railway. The road runs through the
counties of York, Peel, South Simcoe, Grey and Bruce. Some of the
property I refer to is in each of these counties.
(Signed,) Alexander
Manning.
Certified a true copy.
(Signed,) Geo. M. Evans.
(11)
TORONTO,
GREY & BRUCE RAILWAY COMPANY.
List of shareholders at 31st December,
1877.—Revised up to the 30th June, 1877, and 30th Sept., 1877, and 31st Dec.,
1877.
[Page 435]
|
NAME.
|
Address.
|
No of Shares.
|
Calls.
|
Unpaid.
|
Amt. paid up.
|
|
John Ginty.
|
Toronto.
|
40
|
$3,600
|
00
|
|
|
Alex.
Manning.
|
Toronto.
|
50
|
5,000
|
00
|
|
But apart from this, I think there was a
completed contract, and no notice of allotment was necessary to constitute the
defendant a subscriber to the stock and a shareholder.
It is clear the company allotted the stock, 50
shares, to the defendant. This is not the ordinary case where a person applies
for a maximum number of shares undertaking to accept them or any less number,
and the company is under no obligation to give him any, in which case, I take
it, a reply to the application is necessary, for the very good reason “that
when an individual applies for shares in a company, and there is no obligation
to let him have any, there must be a response by the company, otherwise there
is no contract;” but
in this case the application or offer proceeds, from the company, and the
answer comes from the party applied to, who signs the company’s stock book, and
who binds himself under seal to become the holder of the number of shares set
opposite his name, and on allotment of his shares agrees to pay a certain
percentage, &c. The company allotted the shares, and he was placed on the
registry, and this constituted a completed transaction, and made him to all
intents and purposes, in my opinion, a shareholder in the company.
I think there cannot be the slightest doubt that
the defendant did intend and agree to become a member in praesenti;
there may or may not have been an agreement or understanding—I should rather
say simply an expectation—that he should get a contract; but this, whatever it
was, was purely collateral, and as was said
[Page 436]
in Bridge’s case, “having agreed to be a shareholder in
praesenti, he cannot be heard to say that he was not a shareholder because
of this collateral matter.”
See Elkington’s case, and what was said by Lord Cairns cited in
this case.
But the contention set up on this point has been
abandoned. I think the authorities clearly establish that no notice of
allotment in a case of this kind was necessary.
In the last edition of Mr. Leake’s work,
1878, on Contracts, p. 36, it is said:—
If a definite offer of the shares proceed
in the first instance from the company, or if there be a previous definite
agreement respecting them, the application for the shares in pursuance of the
offer or agreement may make a complete contract without further notice of
allotment.
He cites Tucker’s case; Adams’ case; Davies’ case.
This doctrine was enunciated and acted on by the
Supreme Court of New Brunswick in European & North America Ry.
Co. v. McLeod, and
also in The New Theatre Company (limited)—Bloxam’s case.
This latter case is as follows:
This company established under the 25 and
26 Vic., c. 89, had been ordered to be wound up. This was an application
on behalf of the official liquidator to settle Mr. Bloxam on the list of
contributors in respect of 100 shares.
It appeared that Mr. Bloxam had
verbally applied for 100 shares, and he was told by the secretary that he could
have them on payment of the deposit. He called at the office of the company in Cornhill
on the 25th of April, 1863, and handed to the secretary his cheque for £100 for
the deposit upon the shares; but before handing it over he asked the secretary
when he could have the shares, and was told by him that he could have them in a
few days, as the company were about to allot them. He then stipulated with the
secretary, that if
[Page 437]
he did not get the shares in a few days,
the secretary would return him the cheque. The cheque was duly paid into the
bankers of the company.
The shares were actually allotted to Mr. Bloxam
on the 27th of April at a meeting of the directors, and his name was entered as
the allottee for 100 shares in “the Register of allotment of shares.” It was
not shown that Mr. Bloxam’s name had been entered in the share registry
book (25 and 26 Vic., c. 89, s. 25). Mr. Bloxam did not sign any
written application for the shares, and no letter of allotment, no scrip
certificate of the shares, and no return of the allotment had ever been sent to
him.
It did not appear that Mr. Bloxam
had ever applied for the scrip certificates, but he had called at the office in
Cornhill, and found it closed, and he was told that the company had gone
to pieces, but the office had in fact been removed to Westminster. He
appeared to have done nothing further, when, on the 27th of July, 1863, the
company was ordered to be wound up. Mr. Selwyn and Mr. Beavan for
the official liquidator, argued that Mr. Bloxam ought to be placed on
the list of contributories, for the contract for the shares by application and
payment of the deposit was complete when the shares had been allotted to the
applicant by the company, and that nothing further was wanted to make the
allotment effective. They cited ex parte Yelland; ex parte Cookney.
Mr. Roxburgh, contra, argued that no
perfect and complete contract fixing Mr. Bloxam with the ownership of
any particular shares existed. That an allotment alone, without notice to the
allottee was insufficient, for it was not possible to know what number of shares
had been allotted, or which they were. That here there had been no notice, no
acceptance of the shares, and that no entry on the share registry, as required
by the act had been proved.
The Master of the Rolls:—
I must hold Mr. Bloxam to be a
shareholder. Cookney’s case and Yelland’s case determine this:
that if a person applies for shares and pays what is necessary and has the
shares allotted to him he becomes a shareholder, and that the application need
not be in writing.
Here Mr. Bloxam applies for 100
shares, and he is told he can have them; he then pays a deposit of £100, the
secretary promising him that if they are not allotted the cheque shall be
returned. There is a book called a register of allotment of shares which
answers all the requirements of a register, and in this the allotment to Mr. Bloxam
appears. It is true that no further deposit is made, and that no notice of the
fact of allotment was given to him. But if the company
[Page 438]
had been extremely prosperous, how could
the company deny that Mr. Bloxam was a shareholder; how could they
dispute the fact after this entry in their book? After accepting his money they
allot him these shares. The rights and obligations are co‑extensive, and
I must hold him to be a contributory.
And in Tucker’s case it was contended that Tucker had
never received notice of allotment of the shares to him, and Pellatt’s
case and Bloxam’s
case were
cited.
In Tucker’s case Bacon, V.C.,
says:
In order to constitute a man a shareholder,
all that was required by the provisions of the Companies Act, 1862, was that he
should agree to take shares, and that his name should be duly placed upon the
share register. These provisions had been made for the benefit of the creditors
of the company; therefore in questions as between shareholders and creditors,
persons who had complied with the requirements of the act could not be heard to
say that they were not shareholders.
* *
*
As regarded Mr. Tucker, the evidence
was not quite so satisfactory. He had, however, received a letter and form of
application similar to those sent to Mr. Brown, which form he had filled
up and returned to the company, and therefore the company was bound to allot to
him, and he was bound to take the shares for which he had so applied. There was
therefore a binding contract between Mr. Tucker and the company, of
which either party might have enforced the specific performance.
Mr. Tucker’s affidavit, stating that
he had no recollection of ever having received, and that he did not believe he
ever had received, any notice of allotment, was not sufficient; but it was
immaterial whether or not he had received notice of allotment, for the contract
with the company was complete immediately on his filling up and returning to
the company the form of application for shares. Messrs. Brown and Tucker
must therefore be placed on the lists of contributories.
The marginal note in Adam’s case is:
B. Company agreed to transfer their
business to P. Company. One of the terms of such agreement (which was
sanctioned by the court
[Page 439]
under the winding-up of B. Company) was
that the holders of shares in B. Company should receive an equal number of
shares in P. Company. A circular letter was sent by P. Company to the
shareholders in B. Company, referring to these terms, and requesting the B.
shareholders to fill in a form of application for the shares to which they were
entitled under the arrangement. A., a holder of fifty shares in B.
Company, filled in and returned this form, applying for fifty shares in P.
Company. The directors of P. Company by resolution allotted to him that number
of shares. Before receiving notice of allotment, A. wrote to withdraw
his application. After considerable delay the solicitor of P. Company, to whom
the question of A’s withdrawal had been referred by the directors, wrote
to A., stating (erroneously as now appeared) that by a resolution of the
board the allotment of shares to him had been cancelled. The company had no
share register, but A’s name was entered in their allotment book for
fifty shares, though no particular shares were appropriated to him: Held, that
as soon as A’s application had been accepted by the company, there was a
binding contract between them without any notice of allotment being given to A.;
that even if the resolution cancelling the allotment had been passed the
directors had no power, under a general authority to compromise proceedings,
&c., contained in the articles of association, to sanction A’s
withdrawal; and that as between A. and the company the entry in the
allotment book was sufficient.
Lord Justice Mellish says in Davies’
case:
The only real question appears to me to be
this: First, is there not sufficient evidence on this statement that there was
an agreement that Messrs. Templeman & Co. should take the 250 shares
between them? It appears to me that there is sufficient evidence, because he
says so. Then there being that arrangement, I think that the written
application having been sent in by Mr. Templeman for 200 shares, and by
Mr. Davies for fifty shares, and the company having made no objection to
that, there is sufficient proof that the company assented to this division of
the 250 shares, which were to be taken by Messrs. Templeman & Co.,
in the proportion of 200 shares by Mr. Templeman and fifty by Mr. Davies.
If there had been no such previous arrangement I should certainly not have
thought that the mere keeping the deposits would have been sufficient evidence.
But assuming that there was, as there
appears to me to have been, a valid binding arrangement previous to the written
application being made, that Messrs. Templeman & Co. should take
between
[Page 440]
them 250 shares, and there not being any
objection on the part of the directors to taking the deposit, there is
sufficient evidence to show that the directors assented to the 250 shares which
Messrs. Templeman & Co. agreed to take being divided between
Mr. Templeman and Mr. Davies in the proportion contained in
their written applications.
I am of opinion, therefore, that the order
of the Vice-Chancellor is right, and that this appeal must be dismissed with
costs.
I am of opinion that the defendant was liable in
this action, and that the judgment of the Court of Queen’s Bench should have
been affirmed, and that the appeal should therefore be allowed, and that the
judgment of the Court of Appeal reversing the judgment of the Court of Queen’s
Bench should be reversed with costs in all the courts.
FOURNIER, J., concurred in the judgment about to
be delivered by Henry, J.
HENRY, J.:—
This is an appeal from the Appeal Court of Ontario.
Three of the four learned judges who heard the appeal gave judgment for the
respondent, on the ground that it was necessary for the appellant to have shown
notice within a reasonable time of the allotment of shares to him, and that no
notice whatever of such allotment had been proved. The late lamented Chief
Justice of that court agreed that such proof was necessary, but he was of the
opinion that from the facts in evidence such notice might be inferred. On this
latter point only did he differ from the majority of the court. I do not
consider it necessary to give my views at any great length, but will commence
by saying that I entirely adopt the views of the learned judges who decided in
favor of the respondent. The document signed by him, as I consider it, formed
but an offer on his part to accept fifty shares of the company’s stock when
allotted to him. It being under seal makes no difference as to the legal
[Page 441]
construction to be put on it. It was signed as
an original subscription or offer to take stock in a company not then, but
subsequently to be, organized. The company did not then exist, but was
subsequently to be formed, or not, according to circumstances; and we must look
at this document from a stand point very different from that we should occupy
in the case of a subscription to the stock book of a company already in
existence. A party in the latter case would, after his application for stock
had been accepted, be called upon to sign the stock list in the book of the company
kept for that purpose. Before a company is formed there is an offer on the part
of those wishing to become stockholders to take certain shares. It is only, at
the most, a unilateral contract, if one at all; and one which could not be
enforced by the party subscribing. He could not by his offer oblige the
provisional directors to allot any of the shares to him. A larger amount of
stock than required might be subscribed for; and no one will doubt the power of
the provisional directors to reject such applications as they pleased. So up to
the time, at least, of the allotment, any subscriber could withdraw his offer
to take the stock he subscribed for. The agreement in this case was to receive
fifty shares when allotted; and that, in my opinion, threw upon the provisional
directors the onus of not only allotting the stock within a reasonable time,
but of giving him notice that they had done so, also within a reasonable time.
I concur with the three learned judges of the
Appeal Court that there is no evidence of any notice of allotment. It is in
fact not contended there was any, and there is no evidence of a waiver of it by
the respondent. At the first meeting to organize the company, nearly two months
after the subscription by the respondent, it was decided to call in ten per
cent of the allotted shares, but it does not appear that any notice was given
[Page 442]
to the respondent of that resolution, and no
notice given of the allotment. Suppose in the absence of both the respondent
had been sued for the recovery of the ten per cent. of the shares, could he not
have successfully resisted that claim for the want of such notice of allotment?
The stock was subscribed for in April, 1869, and a meeting of the provisional
directors held on the 1st of July following. At that meeting the president is
reported to have stated “that on the previous evening the amount of stock
required by the charter for organizing the company, viz.: $300,000, had all
been subscribed, and that, therefore, it was necessary at once to devise means
to collect and pay into the bank the first instalment of ten per cent. on the
shares, so that the meeting for the election of directors and organizing the
company could be called at as early a date as possible, &c.” The minute
goes on to state that “the brokers, Messrs. Campbell & Cassels, were
instructed at once to collect the first instalment,” and have the amount,
$30,000, paid into the bank on the tenth of the same month, “so as to enable an
advertisement calling the general meeting of the shareholders to appear in the Ontario
Gazette of that date.” The secretary was also instructed to prepare
advertisements to be inserted in other papers calling the meeting—the day to be
determined by the company’s solicitor. The secretary was “also instructed to
issue allotment certificates to each shareholder for the amount of shares held
by him.”
By this extract from the company’s minutes it is
clearly shown that when the respondent signed the document in question the
company existed only by the charter. There were no stockholders or members.
Even the provisional directors were not actually such, and could only become so
by subscribing and paying for stock. There could be no regular stock-book until
the shares had been allotted, which is generally prepared after the
[Page 443]
company is organized, and therefore the document
signed by the respondent could not be tortured into one so as to bind the
respondent; but let me pursue the inquiry a little further. Suppose on the day
of the meeting to organize the company and appoint directors &c., the
respondent attended, but had not paid, and declined to pay the ten per cent.,
would he or any other similarly situated be allowed to vote or take part in the
organization of the company? Sections 14, 18 and others of the act of
incorporation require the 10 per cent. to be paid before any subscriber could
vote or be elected a director or even called to attend the first meeting to
organize the company. He would have been very delicately informed that he was
not a stockholder, and denied the privileges of one. Any other course would be
a violation of the statute. If the mere signing the document in April previous
made him a stockholder he could have insisted upon his right to participate in
the proceedings, and if the amount of stock subscribed for by him was
sufficient he might have been elected a director. That would be the necessary
legal result of the position he would so claim, but who would venture to assert
that by his mere signature to the document in question he could acquire such a
position, and yet to bind him as a shareholder it becomes necessary to admit
the position I have stated.
The appellant claims that the respondent was a
shareholder in the company from the time of the allotment of shares, but if the
signature of the respondent to the agreement was sufficient to bind him, then
no allotment was necessary to be shown. If the agreement, however, is not
sufficient alone, and that the allotment was necessary, does it not
legitimately follow that a notice of it became necessary? If the signature of
the respondent was to the regular stock book of the company after being
organized, no allotment would require to be
[Page 444]
shown, and does not the acknowledged necessity
for showing the allotment at the same time characterize the document signed as
an incomplete contract? If so incomplete, does it not necessarily require, to
complete it, that notice should have been proved of the allotment within a
reasonable time. I cannot see how the company at the time of the judgment at
the suit of the appellant against the company could have enforced the contract
as one fully completed against the respondent. He, in fact, never was a
shareholder in the company, and the company never during the seven or eight
years after he signed the document treated him as such. He never was called
upon to pay any call on his shares, never had any notice to attend a meeting of
the company, nor did he attend any. I am free to admit that if he at any time
became a shareholder, the company could not by laches or otherwise release him
from his liability to its creditors, and that nothing but the payment in full
of his stock would release him; but I have been unable to realise his position
as being at any period a stockholder. Once a stockholder, a subscriber to the
regular stock book, which latter itself would show him to be one, I am free to
admit that if he became a delinquent in the payment of subsequent calls, he
might by the by-laws be incapacitated from voting at or taking part in any
meeting of the company, but still be liable to the company or its judgment
creditors for any balance due on his stock; but that I hold is not the case
here.
The statutes make the shareholders answerable to
creditors for the amount due on their stock to the company, but do not include
those who merely signed a conditional agreement to take stock when allotted,
and whose contract is left open for want of notice of such allotment.
Sec. 80 of chapter 66 of the Consolidated Statutes, referred to in the Act
of Incorporation, provides
[Page 445]
for the liability of its shareholders thus:
“Each shareholder shall be individually liable to the creditors of the company
to an amount equal to the amount unpaid of the stock held by him,” &c. It
will be observed that the only term used is ‘shareholder,’ and he is to be held
liable “to an amount equal to the stock held by him.” In either case, in order
to make him liable he must be a shareholder holding stock in the company, or
the right to do so. Sub-sec. 19, sec. 2 of the same act, defines the term
“shareholder.” “The word shareholder shall mean every subscriber to or holder
of stock in the undertaking, &c.” But the term subscriber to stock is one
who by his own act and that of the company becomes a subscriber. No one can be
a subscriber to stock so as to make him a shareholder without the concurrence
of the company through its officers. I must say I think the evidence of his
ever having been a shareholder is wholly insufficient.
By the charter the provisional directors were
authorized to open stock books, but they could be only provisional, and it
would be as monstrous in my opinion to bind the subscribers thereby absolutely
as it would be to bind the provisional directors to allot shares to every one
who subscribed for them. The provisional directors guarded themselves, for what
reason we need not inquire, by inserting the words “when allotted,” but as I
look at the document, I am of opinion they had also the inherent right to
reject the application of any subscriber they pleased. The true legal meaning
in my opinion, of the document signed by the respondent, amounts to this and to
nothing more: “I hereby undertake to take and pay for fifty shares in your
company if allotted to me. I will wait a reasonable time for your acceptance of
my offer, and if in the meantime I hear nothing from you I shall conclude you
have not
[Page 446]
accepted my offer, and shall otherwise dispose
of the funds I shall keep for that reasonable time uninvested and unemployed.”
What the provisional directors did after the respondent subscribed was known to
them, but not to him. The charter authorized the issue of stock to the extent
of a million dollars, and when he received no notice of allotment to him he
might very well have presumed they had got other subscribers that they
preferred to him. The fact of their raising and paying into the bank $30,000,
being ten per cent. of $300,000 required by the charter to be paid before
organizing, shows there must have been sufficient so ck without his to organize
the company, and that being the case the directors might have considered it
unnecessary, and, in view of the bad feeling existing between Laidlaw,
the most active promoter and him, failed to notify him of the allotment.
Whatever the reason, they certainly gave none, and I have no doubt that in law
they were bound to have done so.
Reference has been made to the fact that the
respondent went into several counties to forward the interests of the company,
but that took place before he subscribed for the stock, and his doing so could
not in the least affect the transaction. It is also suggested that after he
subscribed as he alleges, conditionally upon his getting the contract for
building the road, it was an improper act to allow his subscribed stock to form
a portion of the published list of stock absolutely to be taken, which was
dependent on the contingency. With that I do not think we have anything to do.
If he bonâ fide expected to retain his subscription by obtaining the
contract, I can see nothing to reprehend, or fraudulent, in his permitting his
subscription to appear before the public. If he had got the contract which he
says was promised him, I have no doubt he would have waived the want of notice
of allotment,
[Page 447]
but in my view of the law he would not be bound,
under the document he subscribed, even in that event, to have accepted it in
the absence of notice of allotment. Before closing my remarks I think it not
out of place to state that I have carefully read the judgments of the seven
learned judges before whom this case was argued, and no one of them suggested
that the subscription of the list was binding as a complete contract, but held
the opposite view, which seems not to have been contested. The judgments of
four of them were based on the assumption that there was evidence to show an
allotment and knowledge of it by the respondent, while three judges of the
Appeal Court considered the evidence of notice of the allotment insufficient.
Chief Justice Hagarty, in his judgment,
says:—
After the first trial, this case with that
of Newman v. Ginty was argued in the Common Pleas and was sent down for
another trial. The general principle was settled, that after proof of
defendants subscription there should, in the language of Mr. Justice Gwynne “be shown to be some response, either in
writing or verbally, or by conduct communicating to the defendant that the
company had accepted his application and himself as a shareholder.”
My own language there was: I concur in
thinking that our best course is to direct a new trial, so as to have it
expressly found as a fact, whether the defendant was notified or received
notice in any shape, or was made aware of the company having accepted him as a
stockholder according to his sub-scription—notice in substance that the directors,
or the company assented to or accepted him as a holder of the subscribed
shares.
The same doctrine was held by all the other
judges. The only differences between them was as to the sufficiency of the
proof of notice of allotment.
Before arriving at the conclusion I have stated,
I considered fully the law as applicable to the question of notice of
allotment. Some would appear to think that if the respondent found out through
other means than from the directors that they had accepted his application or
[Page 448]
agreement to take shares, it would bind him. I
differ with those who say so. If a notice of allotment be necessary in any case
it is necessary to come directly from the one party to the other. Whatever the
directors did amongst themselves could not bind the respondent, unless by some
binding act of theirs, on which he could rely, they communicated their
acceptance to him of his offer to take the shares. If a party to whom an offer
is made accepts it by words or in writing to the party making it, the contract
is completed, but if after resolving to accept the offer a communication by
words or in writing is made to other parties without any authority or request
to inform the other party of the acceptance of his offer, and the party who
made the offer accidentally hears from third parties that the offer was
accepted, he would not be bound by such information. Nor would the other party
be bound. The one party may contend that he is not bound by what he hears from
third parties whose communication would bind none of the parties, and the other
may as properly say: “I resolved to accept your offer, but as I did not
communicate that resolution to you the bargain never was closed, because I did
not communicate any acceptance to you.” At the most a jury in this case might
possibly find in the evidence sufficient to infer that the respondent had
outside knowledge of the intention to accept, but as I view the law a judge
would not be justified on the evidence in submitting such an issue to them.
I think the appeal should be dismissed, and the
judgment below confirmed with costs.
TASCHEREAU, J.:—
I am also of opinion that the appeal should be
dismissed. I cannot see that, by subscribing for shares as he did, Manning
became a shareholder in prœsenti; no company existed then as a matter of
fact. The receiv-
[Page 449]
ing of subscriptions were provisional acts
towards the organization of the company. It might have been that not a
sufficient number of shares would have been subscribed for, and so there would
have been then no company. Then, if Manning’s subscription was only an
offer to take shares, that offer, to bind him, must have been accepted by the
company and notice of such acceptance given to him within a reasonable time.
Such an acceptance did take place, but no notice thereof was ever given to him.
Without this notice there was nothing to bind him. I need not say that, though
the principles which govern this case are the same in the province where I come
from as in Ontario, and consequently there are no new questions for me
in the case, yet I have felt great embarrassment in coming to a conclusion, and
have vaccillated a good deal about it. The diversity of opinions in this court
and in the Ontario courts demonstrates that the case is far from being
free of difficulties. After the fullest consideration I have come to the
conclusion to dismiss the appeal.
GWYNNE, J.:—
This appeal opens a point which, by reason of
the judgment of the Court of Appeal in Denison v. Lesslie, was not available to the plaintiff in the
courts below, namely, whether the instrument signed by the defendant
constituted a completed contract, or is to be regarded as an application only
for shares, requiring a response from the company signifying to the defendant
the fact of his application having been acceded to and of his having been
himself accepted as a shareholder.
The difficulty upon this point has arisen from
the form of the certificates of allotment adopted by the provisional directors,
or it may be by their secretary, at a period posterior to the subscription by
the defendant
[Page 450]
of his name in the stock book of the company as
a holder of fifty shares in the capital stock of the company, a certificate
which, according to the defendant’s own showing, could have had no operation
upon his mind, for his contention is that he never saw one until at the trial
of this action, and the main contention before us was that because he had not
received one, he is not a shareholder.
That the defendant, in signing his name in the
stock book, did not conceive that he was setting his name to an application
merely for shares, calling for a response either of acceptance or of refusal
from the company, but that he understood that he was executing a contract made
by him, as a shareholder, and completed by his name being subscribed in the
stock book for fifty shares, is to my mind abundantly apparent.
By the second section of the special act
incorporating the Toronto, Grey and Bruce Railway Co., several enumerated clauses of the General
Railway Act, and,
among those, the clauses respecting “Interpretation” and “Shareholders” are
incorporated with and made part of the special Act. By the former of these
clauses in sec. 7, sub-secs. 5 and 19 of the general Act, it is enacted that in
the special act the word “shareholder” shall mean “every subscriber to, and
holder of, stock in the undertaking,” and the personal representatives of such
shareholder, and by sec. 80 of the general Act, it is enacted that each
“shareholder” shall be individually liable to the creditors of the company to
an amount equal to the amount unpaid on the stock held by him for the debts and
liabilities of the company, and until the whole amount of his stock has been
paid up. Then by the 8th sec. of the special act the capital stock of the company
was declared to be $3,000,000 divided into $30,000 shares of $100 each, and
[Page 451]
by the 14th section it was enacted that as soon
as shares to the amount of $300,000, or one‑tenth part of the capital
stock, shall have been subscribed other than by municipalities, and ten per
cent. thereof paid into some chartered bank having an office in Toronto
(which on no account shall be withdrawn therefrom except for the service of the
company), the directors shall call a general meeting of the subscribers to the
said capital stock, who shall have so paid up ten per cent. thereof, for the
purpose of electing directors of the said company.
By sec. 15, it is provided that in case the
provisional directors neglect to call such meeting for the space of three months
after such amount of capital stock shall have been subscribed and ten per cent.
thereof so paid up, the same may be called by any five of the subscribers who
shall have so paid up ten per cent., and who are subscribers among them for not
less than $1,000 of the said capital stock, and who have paid up all calls
thereon.
By sec. 17 it is enacted that at such general
meeting the “subscribers for the capital stock” assembled who shall have paid
up the ten per cent. thereof, with such proxies as may be present, shall elect
the regular board of directors. By the 27th sec. it is enacted that on the
subscription for shares of the said capital stock each “subscriber” shall pay
forthwith to the directors, for the purposes set out in the act, ten per cent.
of the amount subscribed by him, and the directors shall deposit the same in
some chartered bank to the credit of the company; and by the 7th section, it is
enacted that the provisional directors, who are named in the act and empowered
to act as directors until the election of directors by the stockholders, shall
have power to open stock books, to make a call upon the shares subscribed
therein, to call a meeting of the subscribers thereto for the election of other
directors.
[Page 452]
Now it is apparent that the opening of stock
books was for the purpose of obtaining therein subscriptions for shares in the
capital stock of the company, and that subscribers for shares
therein—“Subscribers to,” “for,” or “of” the capital stock—and “shareholders”
are equivalent expressions to represent what, by sec. 7, sub-sees. 5 and 19 of
the general Railway Act, is declared to be the meaning of the term
“shareholder,” namely, “every subscriber to, and holder of, stock in the
undertaking.”
It has been held, and I think well held, in Denison
v. Lesslie, that
the paying of the 10 per cent. at the time of subscribing is not made by the
act a condition precedent requisite to make the person subscribing a
shareholder. It was competent for the provisional directors to open stock
books, to obtain subscriptions for stock therein, and to postpone the
period for the payment of the 10 per cent. by the subscribers for such stock
until the $300,000 of stock necessary to be subscribed to enable the company to
organize should Be subscribed, when the directors might make a demand or call
upon all subscribers for stock in the stock books for payment of the ten per
cent.
The payment of the 10 per cent. is made a
condition precedent only to the right of voting, that privilege being by the
act conferred only upon those subscribers who shall have paid the 10 per
cent. It is the subscription for the stock which the act makes a condition
precedent to the accruing of the privilege, as well as of the liability to be
called upon to pay the 10 per cent. The account given by the defendant himself
in a suit similar to this of Jaffray v. Manning, the evidence in which
case is part of the evidence made use of in this case, is this. He says: “George
Laidlaw asked me to take these shares.” It may be here observed that this
[Page 453]
George Laidlaw
was one of the provisional directors and the chief promoter of the company and
the undertaking; the defendant describes him as the moving spirit in the
undertaking, without whom there would have been no Toronto, Grey & Bruce
Railway. Defendant then says:—
I refused to take stock in the first place,
then there was a verbal agreement made between Laidlaw and myself. I
would not have taken the stock except for the inducement that Laidlaw
offered. He asked Ginty and myself to take stock and I refused. He
wanted to raise a large amount of stock here, so as to show to the people
outside who were giving bonuses that the people here were contributing largely
to the undertaking. He agreed that if we took stock we should get the contract
for building the road, that we should not be called upon to pay unless we got
the contract, and that if we got the contract under any circumstances we should
not be called upon to pay more than ten per cent upon the stock. Upon that
agreement and conversation we agreed to take the stock. I think we each took
stock separately. We tendered for the Nipissing work and got it,
we also tendered for the Grey & Bruce Railway and did not get it. Laidlaw
was the only one who made the agreement with me. If I had got the contract I
understood that my stock would be paid out of my estimates, but not more than
ten per cent. I supposed that if I had got the contract I should have been in
the same position as any other stockholder. I subscribed to the Toronto
and Nipissing on the same terms, they were separate transactions, but Laidlaw
was acting in both as the prime originator. We got the contract for the Nipissing;
I paid up my stock in full in this; my stock was paid principally out of my
estimates.
Then, in his evidence in the present case, he
repeats:
It was Mr. Laidlaw who asked both of
us, (that is defendant and Ginty,) at the corner of King and Church
streets. Mr. Laidlaw asked me to take stock. He asked Ginty and
me together. An agreement was made verbally, that if we did not get the
contract we were not to be considered stockholders; we afterwards tendered.
Having said that he had signed the stock book on
a verbal agreement between him and Laidlaw, that if he did not get the
contract the subscription was to go for nothing, he was asked: “Why then did he
want you to put your name on at all?” To which he replied:
[Page 454]
I supposed that he was making up his stock
list to see how much he could get to enable him to comply with the charter.
The stock book was signed by the defendant and
his seal set thereto as his act and deed in the presence of a Mr. C.J.
Campbell, who signed his name thereto as subscribing witness, and who says
that he went out as broker of the company, being also a provisional director,
to get subscribers to the stock book. He does not appear to have had, nor is it
alleged that he had, any knowledge of the verbal agreement spoken to by the
defendant as having been made with him by Laidlaw. From this evidence it
is plain that the defendant never entertained the idea that he was merely
making an application for shares, to which he expected a response from the
company signifying whether they would allow him to have any shares and accept
him as a shareholder. The character of the whole proceeding is totally different,
in fact the very reverse of this. The provisional directors, under the
provisions of the act, open stock books for the purpose of obtaining therein
subscriptions for stock, in order to enable the company to be organized, which
could only be done after the subscriptions should be obtained therein for
$300,000 stock subscribed. One of these books is placed in the hands of a
broker who is himself a provisional director, and who is authorized to get
persons willing to take stock to subscribe therein for as many shares as they
may please to hold. The defendant, according to his own showing, instead of
being an applicant for shares is canvassed and pressed by a provisional
director, not to become an applicant for shares but to become a shareholder, and
to take as many shares as he wished to take by subscribing therefor in the
company’s stock book. At length the defendant consents, being moved thereto, as
he says, by a verbal agreement made with him by the provisional director who
solicited him to become a shareholder.
[Page 455]
The defendant thereupon goes and signs his name
in the stock book opened by the provisional directors as a subscriber for fifty
shares in the capital stock of the company. The book so signed contains a
covenant signed by every one subscribing for shares, expressing the terms of
their subscription, but the defendant contends that his subscription is to be
affected by a collateral verbal agreement made, as he alleges, with him by one
of some twenty provisional directors. The provisional director so referred to
denies that any such agreement as that spoken of by the defendant ever was
made. However, whether it was made or not, matters not. The principle of Elkington’s
case and of
Bridgers’ case is
that which must govern upon this point, namely, that if the defendant’s
agreement was to become a shareholder in prœsenti, with a collateral
agreement as to what should be the effect of his subscription contract if he
should not get a contract to build the road, which is, as it appears to me, the
true light in which to view his own evidence, then the defendant is a
shareholder, and is liable in this action; but if the agreement which the
defendant entered into was that, if and when a contract should be given to him
for building the road, he would subscribe for and become a shareholder in the
undertaking to the extent of fifty shares, then he would not be liable unless
nor until he should get the contract to build the road. But it is to the
instrument signed in the stock book under the defendant’s hand and seal
(construed in the light of the surrounding circumstances), that we must look to
determine what the defendant’s contract was, and that cannot be qualified by
any verbal agreement such as that spoken of by the defendant. Now, looking at the
stock book, we find that the defendant subscribed an agreement prepared for
signature, and signed
[Page 456]
by all persons taking stock in the undertaking,
under the provisions of the Act of Incorporation, which is as follows:
We the several persons, firms and
corporations, whose names and seals are hereunto subscribed, severally and
respectively agree to and with the Toronto, Grey and Bruce Railway Co.,
and bind ourselves, our executors and administrators or successors respectively
to become holders of the capital stock of the Toronto, Grey and Bruce
Railway Co. for the number of shares of one hundred dollars each and
amounts set opposite to our respective names, and upon the allotment by the
said company of my or our said respective shares we severally and respectively
agree to pay to the said company ten per centum of the amount of the said
shares respectively, and to pay all future calls that may be made on the said
shares respectively, provided always that no calls shall be made until sixty
days shall have elapsed from the time that a previous call was made payable,
and no call shall exceed ten per centum of the amount subscribed.
Among several other persons who subscribed this
covenant in the stock books was the defendant, who subscribed by himself for
“50 shares, amount $5,000.” Now if the body of the above agreement had stopped
at the words, “for the number of shares of one hundred dollars each and amounts
set opposite to our respective names” with the “50 shares,” and amount $5,000
opposite the name of the defendant subscribed by himself, it is not disputed
that the taking of the shares would have been complete, and the defendant
beyond all doubt or question would have been a shareholder in prœsenti,
whatever agreement, if any, had been made as to the mode of payment, or as to
any conditions regulating the payment of calls, but it is to be observed that
what follows does not qualify what had gone before, which related to the taking
and subscribing, for stock. The agreement is not that if and when the company
shall allot to the several parties named the number of shares set opposite to
their respective names, they will accept such shares and subscribe the stock
book. If that had been the intention, the agreement would not have been
[Page 457]
entered in the stock book, which the provisional
directors were by their act of incorporation empowered to open for the purpose
of having shares subscribed for therein, but the agreement is that the
subscribers in the stock book, of the several shares and amounts set opposite
to their respective names, will pay the calls in certain events, namely, upon
allotment of the said shares so subscribed for the first call of ten per centum
and all future calls that may be made, provided, &c., &c. It is the
subscribers for shares, who, under their hands and seals, covenant to pay the
calls, and the qualification involved in the expression “and upon allotment by
the said company of our said respective shares, &c., &c.,” whatever may
have been intended by that, is attached only to the payment of the calls upon
the stock then subscribed for. The expression, in view of the fact appearing in
the defendant’s evidence that he was pressed to take the stock, and did so,
being moved thereto by the verbal collateral agreement of which he spoke, and
that he signed his name in the book for the fifty shares for the purpose of
assisting in showing upon the stock book the subscription of the amount
necessary to enable the company to organize under their act, is, it must, I
think, be confessed, an inappropriate one; for the circumstances show that the
defendant was subscribing for shares pressed upon him, and not proposing to
take stock which the company might or might not afterwards allot to him. It is
sufficient for the purposes of this suit to say that the nature of the
transaction was not an application for shares by the defendant requiring a
response to be signified to the company before his contract to become a
shareholder should be complete, but an actual acceptance by him of stock
offered to him and a subscription therefor by him in the stock book of the
company, it was a completed contract, and taking of the stock, and a covenant
by the defendant as
[Page 458]
a subscriber for the stock to pay the calls in
certain named contingencies, and thereby the defendant brought himself within
the statutory definition of a “shareholder,” that is to say, “a subscriber for
stock in the undertaking,” and this, upon the authority of Moss v. Steam
Gondola Co., Bailey
v. The Universal Provident Life Association, and Ness v. Angus, is all that is required to make the
defendant liable to the plaintiff in a proceeding of this nature. It might be
that the defendant, although a subscriber for stock in the undertaking within
the meaning of the statute, might never have become liable to pay to the
company any calls thereon, by reason of the contingencies, upon the happening
of which the same respectively became payable under the defendant’s covenant,
never having happened; or it may be that the company might never have made any
calls upon the stock, or might never have asked for, or required, any payment
from the defendant in respect of his stock, relying, as the defendant says Laidlaw
informed him he did, upon constructing the railway upon bonuses so as to make
the stock almost free; but whether or not the contingencies happened which, in
the terms of the defendant’s covenant, made the calls or any of them
recoverable by the company, or whether or not the company ever asked for or
required from the defendant payment of the first call of 10 per cent. upon the
amount subscribed for by him, or of any other call, still the defendant would
be liable to the plaintiff in this proceeding if he comes, as by signing the
stock book as a subscriber for fifty shares I think he does, within the
statutory definition of a “shareholder.” If calls had not been made, the effect
in such case would only be to make the amount to be reached by a process of
this
[Page 459]
nature at the suit of creditors larger than it
would be if some calls had been made and paid. In this case, however, it
appears that the provisional directors, with the view, no doubt, of subjecting
the defendant to a liability under his covenant to pay the first call of ten
per centum, did go through the form of directing the secretary to issue
allotment certificates to each shareholder for the amount held by him. It is
the form adopted (apparently by the secretary) for this certificate which has
given occasion to the discussion upon this point, for, aside from the expression
in this form, there is nothing that I can see affording foundation for an
argument that the subscription by the defendant in the company’s stock book was
merely an application for 50 shares. In my judgment the plaintiff was entitled
to succeed upon the record in this action upon the ground, notwithstanding the
form of the certificate, that the defendant, by subscribing his name in the
stock book as a subscriber for 50 shares, amounting to $5,000 in the capital
stock of the company, had brought himself within the statutory definition of a
“shareholder” without any further assent by the company being necessary to his
becoming a subscriber for that amount. I cannot doubt that by his subscription
in the stock book the defendant acquired the right to compel the company to
receive his 10 per cent. if he had pleased to tender it so as to entitle him to
the privilege of voting or of selling his shares if they had risen to a
premium. He was by his signature in the stock book a subscriber for the 50
shares, whatever qualification from the form of the defendant’s covenant may
have been imposed upon the company affecting their right to enforce against the
defendant’s will payment of calls.
The certificate prepared for the defendant is as
follows:—
[Page 460]
Toronto, 1st July, 1869.
To Alexander Manning, Esq., Toronto:—
This is to certify that the Toronto,
Grey & Bruce Railway Company, in accordance with your application for
50 shares of $100 each of their capital stock, have allotted to you 50 shares
amounting to $5,000, the first instalment of 10 per cent. thereon being payable
forthwith, and all future calls to be made at a rate not exceeding 10 per cent.
on the amount of said shares and at intervals of not less than sixty days.
W.
Sutherland Taylor,
Secretary.
The case in the court below turned upon the
question whether or not in writing, verbally, or by conduct, the defendant had
had notice or knowledge that the company regarded him to be a shareholder, his
subscription in the stock book having, upon the authority of Denison v.
Lesslie been
assumed to be a mere application for shares requiring some response from the
company. The learned judge before whom the case was tried found as matter of
fact, that the defendant subscribed for the 50 shares in the stock book; that
the 50 shares were allotted to him by the company; that the company sent
notices to him of calls; that his name was published in the Globe
newspaper as a shareholder, and that during the period of such publication the
defendant was a subscriber to the Globe; that all was done by the
company to give to the defendant a claim against the company for the stock, and
to have any benefits that might accrue therefrom. He added that he could not
say that the defendant received actual notice of the allotment, but he found as
a fact that the company by notices sent to his address gave him notice of their
considering him a shareholder.
Now it appears to me that it would be highly
improper and indeed mischievous that a court sitting in appeal should reverse
these findings of the learned judge, upon whom devolved the special duty of
endea-
[Page 461]
voring to reconcile conflicting evidence—of
observing the manner in which the several witnesses gave their evidence,
although the credibility of none of them was attacked—and, with the advantage
of that observation, of arriving at a just conclusion upon the question
submitted. Starting with the admission by the defendant that he had subscribed
for the shares upon a verbal promise that by doing so he should secure a
contract to build the road, which, as he says, was promised him, and that
relying upon such promise he had tendered for the contract so promised after
the company had become so organized as to enable it to give a contract for
building the road, to assist in reaching which point his subscription had been
asked for and given; contrasting also the defendant’s admission in the former
case of Jaffray v. Manning, “that he may have been notified of the first
call,” with his denial now of having received any notice of call, it is obvious
that in order to arrive at a just conclusion one way or the other, upon the
question submitted, not only was great care necessary in the endeavor to
reconcile conflicting evidence, but in forming his judgment the learned judge
would naturally be influenced by the manner in which the respective witnesses
gave their evidence, as well as by the way in which the defendant professed to
explain how his view could be reconciled with matter testified to, and which
appeared to the learned judge to be established by other witnesses. It is
obvious that the learned judge, as well from the manner of the defendant giving
his evidence as from its matter, would have to estimate the proper degree of
weight to be attached to the defendant’s memory when he now says that he never
received any notice of calls, when the judge was satisfied from independent
evidence that such notices were sent to the defendant’s address, and when it
appeared that in Jaffray v. Manning the defendant admitted that
[Page 462]
he might have been notified of the first call;
so likewise, when it appeared that the list of shareholders with the
defendant’s name on it was published for sometime in the Globe
newspaper, to which paper at the time the defendant was a subscriber, and when
it appeared that the defendant tendered for the contract to build the road in
pursuance, as he says, of the promise made to him upon the faith of which he
had subscribed, and that he took great umbrage at the promise not being kept, I
confess it seems to me to be difficult to conceive a case in which the manner
in which the several witnesses gave their evidence would form a more essential
feature in enabling a jury, or a judge acting as a jury, to determine which was
the most proper conclusion of fact to arrive at. A court, not having the
opportunities which the judge at the trial had, assumes in such a case a grave
responsibility, when it ventures to reverse the conclusions on matters of fact
of the judge who had them; a responsibility which, in my judgment, should never
be assumed by a Court of Appeal, unless the matter of the evidence conveys to
the minds of the judges sitting in appeal a clear conviction that the
conclusions of fact arrived at by the learned judge who tried the cause are
erroneous. In the case before us, the Court of Queen’s Bench, consisting of
three judges, one of whom was the judge who tried the cause, and who had,
therefore, an opportunity of conveying to his brother judges in consultation
the impression made by the respective witnesses upon his mind during the
progress of the trial, has concurred in his findings. One of the four judges of
the Court of Appeal takes the same view. How is it possible then to say that
conclusions of fact so concurred in are so clearly erroneous as to justify a Court
of Appeal in reversing them? It is admitted that if a jury had found, as the
learned judge who heard the witnesses, and the Court of Queen’s
[Page 463]
Bench, of which he is a member, have found, it
would not have been competent for the Court of Appeal to reverse the findings;
but a distinction has been drawn between the effect of matters of fact found by
a judge trying a case without a jury, and the effect of the finding of the same
matters by a jury, and in support of this distinction the observations of Lord
Justice Bramwell in Tones v. Hough, have been referred to, but these
observations do not appear to me to go further than the rule as I have stated
it above. True it is, although by the course of procedure in Ontario
either party may have issues joined in an action at law tried by a jury, or by
a judge without a jury, at their option, it is known that the full court in
which the action is pending may be moved to review the judge’s findings upon
matters of fact upon the evidence as taken before him; but it is discretionary
with the court to grant the motion or to refuse it, and if the case be clear it
is not unusual to refuse it. Now, what Lord Justice Bramwell holds is
that, when the decision of a judge of first instance, finding matters of fact
without the aid of a jury, is brought before a court by way of appeal, and the
judges of the court sitting in appeal see that the conclusions arrived at by
the learned judge who tried the case are erroneous upon the materials before
him, they should not accept his finding, but should exercise their own
independent judgment. These observations do not touch the point as to the
weight to be attached to the finding of a judge of first instance upon matters
of fact, when such finding from the nature of the case depends upon the
credibility of the witnesses examined before him, or upon the manner in which
they give their evidence, or upon the balancing conflicting testimony where no
imputation may be cast upon the honesty and credibility of any
[Page 464]
of the witnesses. They relate to cases where,
from the materials before the judge, and which are brought before the Court of
Appeal, the latter can clearly pronounce the finding of the judge at the trial
to be erroneous. The particular question which arose in the case in which the
observations occur was whether the judge at the trial was correct in finding
that the defendant was guilty of conversion of goods put on board his ship,
because he had sailed with his vessel without a bill of lading of the goods
having been signed. The case was one as to the proper inference to be drawn
from facts as to which there was no dispute. In such a case there can be no
doubt that it is within the jurisdiction and the power and the duty of a Court
of Appeal to interfere and to pronounce the finding of the learned judge to be
erroneous, if convinced that it was so; but such language is manifestly
inapplicable to a case in which the manner of the witnesses, as well as the
matter of their evidence, must, or may, be an essential ingredient to enable a
judge to balance conflicting evidence, for this is a species of testimony which
cannot be brought before the court sitting in appeal. The same learned Lord
Justice had already held in a case from the Court of Chancery tried before a
Vice-Chancellor who had seen the witnesses, that a Court of Appeal ought not to
reverse the finding of the Vice-Chancellor upon matters of fact, unless satisfied
that he was wrong, and proceeded to say:—
I feel satisfied, and I need not say I say
it with perfect respect, that I can put my finger upon the error or the mistake
which the Vice-Chancellor made, and I am satisfied that if he had had those
materials before him which we now have [the court had allowed additional
evidence to be given] he would not have made the mistake, if indeed, it can be
properly said to have been a mistake of his making.
The general rule laid down by the Privy Council,
sub-
[Page 465]
ject to possible exceptions, is that they will
not reverse the concurrent findings of two courts upon a question of fact, and
the test to be applied to determine whether there have been the judgments of
two courts, is to enquire whether the first judgment, if not appealed or
brought in review before the second tribunal adjudicating in the matter, would
have been a conclusive judgment, or whether it required confirmation by the
tribunal before becoming operative. But
the rule of universal application in all courts is that enunciated in the House
of Lords in Gray v. Turnbull, where
Lord Chelmsford says:—
Upon a question of fact an appellate
tribunal ought not to be called upon to decide which side preponderates on a
mere balance of evidence. Different minds will, of course, draw different
conclusions from the same facts.
And he comes to the conclusion, that upon an
appeal from the decision of the judges of the court of first instance, it
should be irresistibly established to the satisfaction of the appellate
tribunal that the opinion of the judge or judges on the question of fact was
not only wrong but entirely erroneous; and Lord Westbury, in the same
case, said:—
In the English tribunals, when a question
of fact has once been decided by the verdict of a jury, it requires an
overwhelming case of error by the jury, or the disregard of some cardinal rule
of law, to induce the court to grant a new trial. Unquestionably I should have
pressed upon your lordships to abide by that rule if it had not been that the
case now brought before us has unfortunately been decided, not on evidence
taken in the presence of the court, but upon the written depositions of
witnesses; and it has been the practice in courts of equity, where that mode of
taking evidence prevails, to allow appeals on matters of fact, although the
court below has felt no hesitation in the conclusion to be arrived at on the
deposition; but if we open a door to an appeal of this kind, undoubtedly it
will be an obligation upon the appellant to prove a case that admits of no
doubt whatever.
[Page 466]
Now, applying the principle of these cases, it
is impossible to say that the findings of the learned judge at the trial are
erroneous; for my own part I cannot say that I am at all disposed to differ
from them; and adopting them, as consistently with the principle of the above
cases, we must, I can see no other conclusion resulting from them than that
arrived at by the unanimous judgment of the Court of Queen’s Bench concurred in
by the Chief Justice of the Court of Appeal, the majority of which court, in my
opinion, erred, in reversing that judgment; and this appeal from the judgment
of that court should therefore be allowed, and the judgment of the Court of
Queen’s Bench restored, with costs as well upon this ground as upon the other.
Appeal dismissed with costs.
Attorneys for appellant: Lauder &
Proctor.
Attorneys for respondent: Ferguson, Bain,
Gordon & Shepley.
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