Supreme Court of Canada
Williams v. Stephenson, (1903) 33 S.C.R. 323
Date: 1903-05-05
James A. Williams (Defendant) Appellant;
and
John W. Stephenson (Plaintiff) Respondent.
1903: March 30, 31; 1903: May 05.
Present: Sir Elzear Taschereau C.J. and Girouard, Davies, Mills and Armour JJ.
ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA, SITTING IN APPEAL FROM THE TERRITORIAL COURT OF YUKON TERRITORY.
Assessment of damages—Estimating by guess—Concurrent findings—Reversal on appeal—New trial.
The evidence being insufficient to enable the trial judge to ascertain the damages claimed for breach of contract, he stated that he was obliged to guess at the sum awarded and his judgment was affirmed by the judgment appealed from. The Supreme Court of Canada was of opinion that no good result could be obtained by sending the case back for a new trial and, therefore, allowed the appeal and dismissed the action, thus reversing the concurrent findings of both courts below. Armour J., however, was of opinion that the proper course was to order a new trial.
APPEAL from the judgment of the Supreme Court of British Columbia affirming the judgment of the Territorial Court of Yukon Territory.
The case is stated in the judgments now reported.
Aylesworth K.C. for the appellant.
Wallace Nesbitt K.C. for the respondent.
The judgment of the majority of the court was delivered by:
DAVIES J.—I think this appeal should be allowed, and the action dismissed. The evidence is unsatisfactory and somewhat conflicting. No evidence was given by the plaintiff from which damages could be estimated ; as the record now stands the only damages
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which could be given would be nominal. This is well shown by the fact that the trial judge in giving his judgment stated that he had been obliged to guess at the amount he assessed the damages at. I do not see that any good result would follow from sending back the case for another trial. We have before us the evidence of all of the parties who know anything about the facts, in dispute. On the main question, as to the agreement, the trial judge found on the facts for the plaintiff. I doubt very much whether I would have so found had I been trying the case, but accepting that finding as correct, the result would be that the plaintiff would get defendant's two-thirds of the property as a present. Accepting plaintiff's own statement as correct, there was no purchase of any specific goods, and no change of property or possession. The sale complained of was made by the defendant's agent, Campbell, day by day, and for the best prices obtainable. The amount realized, $11,103, fell short of the amount due to the defendant personally, and which had to be paid before the partnership became entitled to anything. This is perfectly clear from the evidence of the accountant Graff. Then again, I am of opinion that the agreement for the sale of the business to the plaintiff, if made, was rescinded, and that the plaintiff acquiesced in the sale of the goods by the defendant, having first taken away for himself about $1,300 worth. The evidence given by defendant of the plaintiff's acquiescence in the sale was uncontradicted and must, I think, be accepted. On that ground the action fails and should be dismissed.
ARMOUR J.—The plaintiff and defendant were carrying on the hotel business in Dawson City under the following agreement:
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This agreement, made this 1st day of July, 1899, between J. A. Williams, party of the first part, and J. W. Stephenson, party of the second part, both of the town of Dawson, Yukon Territory, Canada.
Witnesseth, That for and in consideration of the sum of one dollar ($1.00) lawful money of Canada, in hand paid said party of the first part by said party of the second part, the receipt whereof is hereby acknowledged, and certain services as manager of " The Hoffman Hotel " in said Dawson, to be performed by said second party, the said first party hereby agrees to convey unto said second party an one-third interest in said hotel business and the leases thereof and including everything used in the conduct thereof and belonging thereto, clear and free from incumbrance, when the profits of said business shall equal the capital invested therein, and said capital shall have been repaid to said Williams, it being understood and agreed between the parties hereto that said second party shall act as manager of said business without hinderance or reservation, and that the one-third interest to be conveyed as above mentioned shall be for the purpose of compensating said second party for services rendered as manager of said business.
In witness whereof the parties hereto have hereunto set their hands and seals at Dawson, aforesaid, this the 10th day of August, 1899.
J. A. WILLIAMS.
J. W. STEPHENSON.
Signed, sealed and delivered in the presence of
LEROY TOZIER.
And on the 1st December, 1899, the following agreement was made between them according to the evidence of the plaintiff and his witnesses, which was accepted by the learned trial judge as true. That the defendant should retire from the business, and that the plaintiff should carry it on ; that the plaintiff should pay the defendant daily the net proceeds of the business until the debt due to the defendant in respect of the business should be paid off ; and that the stock in trade should continue to be under the control of the defendant and if the plaintiff wanted to use any of it for the daily running of the business, he was to take it, but at no time was he to take an amount of it greater than the amount of payments he had already
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made, for example, if to-day's receipts were $500 he was not to take over $500 worth, so that the security would be ample to protect the defendant.
There was no provision made for replacing the stock in trade if exhausted before the defendant was paid off.
The business was carried on by the plaintiff under the foregoing agreement from the 1st to the 10th of December when the defendant closed up the business and sold the goods, and for this breach by him of this agreement this action was brought.
The only evidence of damage was the following :
Q. What do you estimate the damage you have sustained by reason of this breach of contract ?—A. Well, he put me out of business. I was doing a good business and making money and I would have made between $5,000 and $10,000 in the house.
The learned trial judge said in giving judgment as to damages :
What exactly should be given under the circumstances is only a guess which this court has to make. I think $10,000 which is claimed is too much. I reduce the same to $5,000 as a fair compensation to plaintiff.
With all due deference, I am of the opinion that it was not competent for the learned trial judge to guess the amount of damages in an action such as this which was an action to recover damages for the breach by the defendant of the agreement above set out.
The plaintiff should have given such evidence as would have enabled the learned trial judge to have ascertained the damages with reasonable certainty and not to have contented himself with also guessing as to his damages as he apparently did.
Evidence should have been given showing the amount due to the defendant on the day he closed the business, the value of the goods on that day, deducting therefrom the value of the goods removed by the plaintiff and variously stated to be from $500 to $1,300,
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the length of time the carrying on of the business would have taken till the defendant's debt was paid off by the use of the said goods, the value of the goods which would have remained after such debt was paid off, and the value of the services of the plaintiff from the day the business was closed until such debt was paid off.
These things having been shown the value of the goods remaining alter the defendant's debt was paid off, less the value of the plaintiff's services, would have established with reasonable certainty the damages which the plaintiff sustained by reason of the breach by the defendant of the agreement.
I am of opinion, therefore, that the appeal should be allowed and a new trial had between the parties and the plaintiff should pay the costs of this court and of the court appealed from and the costs of the trial.
Appeal allowed with costs.
Solicitors for the appellant: White, McCaul & Davey.
Solicitors for the respondent: Clarke, Wilson & Stakpole.
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