Supreme Court of Canada
Glendinning v. Cavanagh, (1908) 40 S.C.R. 414
Date: 1908-06-16
George Glendinning and Murdock McLeod (Defendants) Appellants;
and
Alexander Cavanagh and Others (Plaintiffs) Respondents.
1908: May 29; 1908: June 16.
Present: Girouard, Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Principal and agent—Sale of mining land—Commission—Change of purchaser—Continued transaction.
M., owner of mining lands, agreed to give G. a commission for effecting a sale thereof. G. introduced a purchaser to M. and a contract for sale of the lands to said purchaser was executed. This was replaced by a later contract by which the sale price was reduced in consideration of an incumbrance on the property being paid off by the purchaser who borrowed the money for the purpose and assigned his interest in the contract to the lender, also signing a release in favour of M. of any claim against him on the contracts. M. afterwards sold the mining lands to a person buying for the lenders of the money to pay off the incumbrance. In an action by G. for his commission,
Held, that he was entitled to the commission on the full amount received for the land as finally sold.
Held, also that the sale of the land was not a transaction independent of the contract with the purchaser introduced by G. but was a continuance thereof.
Judgment appealed from affirmed, Davies J. dissenting.
APPEAL from a decision of the Court of Appeal for Ontario reversing the judgment of the Divisional Court which had ordered a new trial of the action.
The facts are sufficiently stated in the above head-note.
Johnston K.C., for the appellants.
Shilton, for the respondents.
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GIROUARD J.—I concur in the judgment of Mr. Justice Idington.
DAVIES J. (dissenting).—For the reasons given by Meredith and Riddell JJ., in the Court of Appeal for Ontario, to which I feel I cannot usefully add anything, I am of opinion this appeal should be allowed and the judgment of the Chancellor restored.
IDINGTON J.—I think this appeal should be dismissed with costs. I agree so entirely with the reasoning of the judgment of the Chief Justice of Ontario that no useful purpose can be served by repeating it here.
I, however, desire to call attention to the following evidence of defendant McLeod explaining why the agreement of 24th April, 1905, was entered into.
Q. Do you remember giving an agreement to Browning? A. Yes.
Q. Do you remember why you gave that? A. Yes.
Q. Why? A. Some time previous to this Mr. Timmons had called me to his office at the Larose Mine and told me a certain amount of the circumstances.
Q. And as a result of that? A. As a result of that we were willing to give an agreement.
Q. That was an agreement to protect these men against loss in regard to the moneys they had advanced. A. Yes, he asked me if we would accept Hanson’s position and pay them back the money they had advanced for the removal of the caution. If we would they would release. And I said no, the only thing we could possibly do then was to sell the property to them, and I agreed to do so.
Q. Hanson wanted to protect Browning, and there is no dispute about that; that Browning wanted to be protected? A. Yes.
Q. And you would not give an agreement of that kind to Browning, except what? A. Except we had a release.
Q. And you got the release? A. Yes.
Q. Subsequently the property was sold to Ferguson; do you know how that was? A. Yes.
Q. Tell us how that came about? A. Mr. Browning and Mr. Ferguson or both made representations to us that Mr. Ferguson was putting up the money or instrumental in putting up the money and
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he would be the party that would be represented, and an agreement was drawn at my office. We agreed to sell.
Q. Had the sale to Ferguson anything whatever to do with any commission or any arrangement with regard to Hanson? A. No, none whatever.
There is in the case such a repetition by witnesses and others of the view that the later transaction was “an independent sale” that, until I found this explicit statement of the reason for “the independent sale,” I was somewhat embarrassed. This witness also calls it so.
The “independent sale” was merely a method of carrying out exactly what the assignees of Hanson’s bargain or some of them desired and were entitled to.
It was his bargain that was carried out. I prefer looking for the substance of things to adopting the mere form.
Every one got as the result all they ever had any right to expect except the plaintiffs whom the defendants seek to deprive of their commission.
To treat such an “independent sale” as a legal reason for depriving brokers of commission would, I fear, if adopted, lead to an undue development of human ingenuity.
As to the claim made before us for commission on the $20,000 of reduction made from the price fixed in the original agreement I do not see any ground to allow it. It is somewhat difficult to say exactly what the terms of the plaintiff’s retainer were. I do not think the commission was payable immediately upon the execution of the agreement with Hanson. Something more effective was needed as I read the understanding such as we are left to infer it was.
The bargain by which this reduction of price came about was the effective basis upon which the only
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hopes of the plaintiffs could possibly rest for a commission such as is allowed.
There is only another alternative which no doubt was present to the mind of Chief Justice Meredith in granting a new trial. I suspect plaintiffs prefer what has been adjudged.
MACLENNAN and DUFF JJ. concurred in the opinion stated by Idington J.
Appeal dismissed with costs.
Solicitor for the appellants: A.N. Morgan.
Solicitors for the respondents: Shilton, Wallbridge & Co.
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