John Arthur O'neill Hayes (Plaintiff) Appellant;
and
Edward W. Day (Defendant), Respondent
1908: October 13; 1908: November 10.
Present:—Sir
Charles Fitzpatrick C.J. and Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA.
Construction of contract—Findings of trial judge—Appreciation
of evidence—Reversal on appeal.
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In a dispute as to the nature and effect of a contract, the
trial judge, on his view as to the weight of evidence, found the facts in favour
of the plaintiff and gave judgment accordingly. His decision was reversed by a
majority of the court in banco, and the action was dismissed with costs.
Held, per Idington, Maclennak and Duff JJ., reversing the
decision of the full court, that the findings of the trial judge, who had seen
and heard the witnesses, should not have been reversed.
The Chief Justice and
Davies J. considered that the
trial judge had not made his findings as the result of conclusions arrived at
by him having regard to the conduct and appearance of the witnesses in giving
their evidence, and, on their view of the conflicting testimony, were of the
opinion that the full court was right in reversing the judgment at the trial
and that the appeal from their judgment ought to be dismissed.
APPEAL
from the judgment of the Supreme Court of Alberta, in banco, reversing
the judgment of Sifton C.J., at the trial, and dismissing the plaintiff's
action with costs.
The plaintiff (appellant) alleged that the defendant, desiring
his advice and assistance as an experienced land valuator and inspector,
entered into an agreement with him by which he was to accompany
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the defendant in the examination and selection of certain large
tracts of land, in the country adjacent to Wetaskiwin, Alberta, and that his
remuneration for doing so should be the payment, in the nature of a commission,
of an amount equal to one-third of the "turn over" upon the sale of
the lands so selected jointly by them. The action was brought to recover 33 1-3
cents per acre in respect of 123,000 acres of land alleged to have been so
examined, selected and sold, and, at the trial before Sifton C.J., the learned
Chief Justice, speaking of the testimony adduced, said: "It is rather an
extraordinary case that men should so disagree in regard to a conversation as
these men appear to. All of them, so far as their appearance goes and so far as
anything that appears in evidence is concerned, are responsible, respectable
and upright citizens. I, therefore, feel bound to accept the story of two as
against one, there being nothing in their conduct or appearance to detract from
the truthfulness of the story they told. Most extraordinary bargains are made
and have been made, the last three or four years, in regard to real
estate." In view of the evidence, the Chief Justice held that the quantity
of land which could be affected was, practically, 29,000 acres, being a quarter
of what had been selected, and based his verdict in favour of the plaintiff,
for $9,666.66, at the rate of 33 1-3 cents per acre upon that amount of land.
On appeal to the full court, this judgment was reversed and the plaintiff's
action was dismissed with costs, Harvey J. dissenting, and it was ordered that
the plaintiff should have leave to amend his claim by claiming upon a quantum
meruit and, thereupon, should be entitled to a new trial upon payment of
costs.
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Ewart K.C. for the appellant.
Henwood for the respondent.
THE CHIEF JUSTICE (dissenting).—I am of opinion
that the action, in this case, should have been dismissed for the reasons
stated by Mr. Justice Davies.
DAVIES J. (dissenting).—I am of opinion that this
action should have been dismissed with costs, and to that extent would have
modified the judgment of the Supreme. Court of Alberta.
The action was one brought on an alleged agreement that if the
appellant, plaintiff, would select certain lands containing 200,000 acres more
or less available for purchase by respondent, the latter would pay to
the plaintiff 33 1-3 cents per acre in respect of each acre of land so
selected, and that as plaintiff so selected 123,000 acres he became entitled to
receive $41,000, which he claimed.
The evidence relied on to support such agreement was a statement
alleged to have been made by Day to Hayes when Day first visited Wetaskiwin, at
the hotel there, and in the presence of one Bull, who had accompanied Day on
his visit. My opinion gathered from a careful examination of the evidence as to
all this conversation was that it was well understood by the parties as being
quite general and not intended to bind any one to any specific agreement. Hayes
would not have broken his agreement if he had afterwards declined to have
anything more to do with Day or his company, and Day would not have broken his
had he chosen another guide. I am the more satisfied upon this point because
Bull, who is relied upon as cor-
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roborating Hayes, expressly states that
he did not regard or understand the parties as then coming to any definite
bargain and that he supposed there would be something further done and in
writing. I cannot for myself accept Hayes' remembrance of this conversation
which had taken place some years before as correct, though I have not the
slightest doubt some "tall talk" was indulged in at the time during
the two hours' conversation alike by the would-be land purchaser and the land
guide as to possible profits and otherwise. It must also be remembered that at
the time of the conversation Day had not definitely selected any part of the
lands which it was known were open for purchasers; at that time his idea was
generally to purchase "sections" of the land. Afterwards and before
Hayes went out with him he had the offer of sale from the Canadian Pacific Railway
Land Co. of a specified number of townships and when he returned to Wetaskiwin
and before they started out to see the lands the object was not selection of
sections or of lands generally for sale or selection of one or more of
the townships offered him for sale, but inspection of these particular
townships, with a view of determining whether on the whole the offer he had to
purchase them should be accepted or not.
There was no pretence that he could accept some of the townships
and reject others.
To return to the conversation on the first occasion when it is
said the agreement sued on was reached, Hayes says that Day asked him "if
he could select a tract of land for him and that he, Hayes, asked him how I
would make out—what commission I would get out of the deal. He said that I
would make more money than I ever made in my life or had ever seen
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before; that he would easily make a
dollar on the turnover which would be divided equally among the three of
us."
Bull gave evidence which Chief Justice Sifton, who tried the
case, accepted as corroborative of Hayes' statement of the agreement, which was
emphatically denied by defendant. There was nothing the Chief Justice said in
the conduct or appearance of the witnesses which influenced his judgment, but
simply the fact of there being two against one. He admits that the profit
claimed was an extraordinary one but says that "most extraordinary
bargains have been made the last three or four years in regard to real
estate."
While, however, accepting Hayes' version of the agreement as
correct under the assumption that there was corroboration, the Chief Justice
reduces the claim from $41,000 to $9,666.66 because, as he says, "I feel,
although the agreement was made in that way it was made affecting whatever lands
were selected at that time and purchased by Mr. Day." Now as a fact
no lands were selected at that time or purchased by Day. The purchase made by
him was made months afterwards. The Chief Justice, moreover, reduces the number
of acres on which Hayes was to receive his commission from 116,000, the
quantity purchased by Day for the company he represented from the Canadian
Pacific Railway Land Co., to one-quarter thereof, 29,000, that being the
proportion of shares or interest Day had in the company by which the land was
ultimately purchased.
I am quite unable to agree to this method of construing the
suggested agreement, and I cannot think that the measure of plaintiff's right
was to be deter-
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mined by the proportion of shares in the
company, large or small, that Day might have. If the agreement was accepted by
the court as proved, Hayes was surely entitled to his $41,000 either against
the company Day represented, if Hayes knew he was only an agent representing a
company, or against Day personally if he did not know he was such agent and
treated with him personally.
I am satisfied beyond doubt that Hayes knew Day was only an agent
acting for others and so dealt with him and that his remedy if any was against
the company and not against Day personally.
I cannot conceive it possible to spell out of the supposed
agreement a personal liability on Day's part to pay a commission only on such
proportion of the land selected as represented Day's interest in the shares or
stock of the company purchaser, and in this way reduce the $41,000 claimed to
$9,666.66. Such an agreement as that never, I am confident, entered into the
minds of the parties.
Then again I agree with the court below which reversed the
judgment of Chief Justice Sifton that according to the plaintiff's own version
of the agreement his remuneration was dependent upon a "turn over" of
the lands at an advanced price, and that it was this turn over profit
"which was on his own shewing to be divided." It was not the average
profit: which might be subsequently made by separate resales of the lands in
farms or plots possibly extending over years which plaintiff had in his mind,
but the "turn over" or secret profit which Day could make as between
him and the company he represented. No such secret profit was as a fact
attempted to be made by Day; he handed over the lands he had purchased
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to the company at the price he bought
them. If this view as to the meaning of the "turn over" is correct it
is needless to say that the courts would not lend their aid to the enforcement
of any such fraudulent bargain.
There are many other fact and incidents, but I forbear enlarging
further than to remark that the Canadian Pacific Railway Land Co., with which
Day was in treaty for the purchase of these lands, had agreed to sell him a
certain number of specified township lands west of Wetaskiwin at a certain
price, and that it was to view these specified townships and determine whether
or not he would purchase them that Day and his associate Harstone, accompanied
or guided by plaintiff, went to see the lands. No question of selecting could
arise; the lands as specified had to be accepted or rejected as a whole.
No evidence was given by Hayes of his having brought these lands
to defendant's notice or knowledge, or of any selection having been made
by him with respect to them or any of them, or of his having advised for or
against the purchase of any township or done anything more than as a land guide
shew the intending purchaser the location of the specified townships for the
purchase of which the latter had been negotiating and which he subsequently
purchased.
Hayes' evidence on the point, quite irrespective of the emphatic
denials on the part of Day, is to my mind conclusive. After making the general
statement in his examination in chief that during the day when not in camp he
was out "sizing up the country, drawing lines, etc.," he says in his
cross-examination that on the visit to the lands he used to get out and find
the township mounds and section posts and that
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Day and Harstone "drove in around
the lines," and "drove over the land" and that "what he
(Hayes) did in each case was to shew them where they were on on the township
exactly and tell them where they were."
He never commits himself to a single statement of advice on his
part as to selection or rejection of any lands or as to having brought any
lands to their notice or done any one single thing evidencing what would be
known as selecting blocks of land or advising as to the general neighbourhood
where they would be found. He was simply a guide to take them to see the
particular townships Mr. Griffin, the Canadian Pacific Railway land agent at
Winnipeg, had offered them for sale.
Summarizing my conclusions after a close examination of the
evidence I am convinced that when the conversation between Hayes and Day took
place at the hotel in Bull's presence, in which the alleged agreement was made,
Hayes was informed that Day was there for the purpose of purchasing land as the
agent and representative of the Empire Loan Co., and that his conversation with
him was as such agent; that no such agreement as Hayes sets up was really made;
that so far from corroborating Hayes, Bull, the third party present, says
"he did not regard what was said as the finality of the whole transaction,
but thought there would be something further as to a bargain and the reduction
of the bargain to writing between them;" that if such agreement is
accepted as having been made it must be held to have been so made either with
the Land Co. Hayes knew Day then represented, or with Day personally and not as
the agent; if the former, the Land Co., and not Day personally would be liable
upon it, and if the latter, the "turn over"
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mentioned in it and of which Hayes and
Bull were each to have had an equal share with Day related to a secret and
corrupt overcharge which Day was supposed to make as against his principals in
purchasing and turning over the lands to them, which corrupt bargain is
disproved and which, of course, the courts would not lend their aid to enforce
even if proved; that there is not any justification for cutting down the claim
if accepted as genuine and recoverable, from $41,000 to 19,666.66; that the
gist and basis of the whole action was the giving by the plaintiff to the
defendant for the benefit of himself or the company he represented of the
skill, experience and knowledge of the plaintiff in the selection by the
defendant of a large quantity of land in what was then the North-West
Territories, and as the Chief Justice says was made "affecting whatever
lands were selected at that time and purchased by Day;" that as a fact no
lands whatever were selected at that time and purchased by Day; that, months
afterwards, Day having an offer to buy certain specified townships procured
Hayes' services as a land guide to shew him where they were, and that no such
skill, experience or knowledge ever were asked of or utilized by the defendant
or given or offered by the plaintiff to the defendant, but that on the contrary
such services as the plaintiff rendered the defendant were those simply of a
land guide to identify and lead defendant to these township lands, for doing
which he was amply paid at the time.
IDINGTON J.—We have presented to us several judicial ways
of looking at this curious case, but upon
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the whole that of the learned trial judge
seems to me the most satisfactory.
In adopting this view I may add that I think the respondent never
needed nor supposed a special Canadian Pacific Railway Co. introduction needed,
to get a man merely to find and shew him the corner posts of the prairie
townships, but that he did feel he needed the Canadian Pacific Railway Co.
introduction to the appellant, to acquire from him, thereby freed from
restraint, all the information an old experienced agent of the Canadian Pacific
Railway Co. for years engaged in selling lands, could give and that he thought,
when he got his introduction and as a result engaged appellant, he was buying
the peculiar skill and knowledge appellant's long experience must have given
him and which qualified him to be of the greatest value as a guide in
relation to the selection of lands to be speculated in.
When appraised on such a basis I am not prepared to say that,
even in case the claim had been rested on a quantum meruit, as the
majority of the court below admit it could have been, the basis of the price
for such service, as suggested by the respondent and assented to by the
appellant, and accepted by the learned trial judge, should be disturbed.
It is quite possible the surmise of Mr. Justice Stuart may be
correct, but with respect I submit it is mere surmise and not proven.
As to the point of uncertainty I think the learned trial judge
had the material before him to apply the principle of the maxim certum est
quod certum reddi potest.
I would allow the appeal with costs.
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MACLENNAN and DUFF JJ. concurred with Idington J.
Appeal allowed with costs.
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