Supreme Court of Canada
Peacock v. Wilkinson, (1915) 51 S.C.R. 319
Date: 1915-03-15
George S. Peacock (Plaintiff) Appellant;
and
Thomas Wilkinson and Robert Tinck (Defendants) Respondents.
1915: February 8; 1915: March 15.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE SUPREME COURT OF SASKATCHEWAN.
Broker—“Real estate agent”—Sale of land—“Listing” on broker’s books—Principal and agent—Authority to make contract.
Where the principal has merely instructed a broker to place lands on his list of properties for sale, such “listing” does not of itself constitute an authorization to the broker to enter into a contract for the sale of the lands on behalf of his principal.
Judgment appealed from (7 West. W.R. 85) affirmed.
APPEAL from the judgment of the Supreme Court of Saskatchewan, reversing the judgment of Johnstone J., at the trial, and dismissing the plaintiff’s action with costs.
The circumstances of the case are stated in the judgments now reported.
J. F. Frame K.C. for the appellant.
W. M. Martin for the respondents.
The Chief Justice.—I am disposed to agree with the trial judge because I am satisfied that the reckless statements made about the title by the defendants
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cannot be reconciled with that good faith which should exist in cases like this, but I defer to the opinion of the court below and of the majority here.
The appeal is dismissed with costs
Davies J. concurred with Duff J.
Idington j. — This somewhat remarkable case seems to require before dealing with the contentions made by appellant a concise, but full and accurate statement of the facts upon which they are founded.
One Carrothers on the 18th or 19th of March, 1912, listed for sale two lots in Regina, Sask., with respondents, who were real estate agents in that city. The usual index-card specifying the lots to be offered and the price and terms he was willing to accept was signed by him. On the said 19th of March appellant (formerly in the real estate business) called at respondents’ office and offered a listing of other properties for which he wanted a purchaser and, whilst so there, was offered the Carrothers properties and verbally accepted the proposal and made a deposit of $100 on account of the purchase.
Next day respondent Tinck waited upon the appellant at his office to procure his signature to the agreement for the purchase by him of the said Carrothers properties and he signed same in duplicate and gave his cheque for the balance of the cash payment.
That agreement was not signed by any one for Carrothers as respondents never pretended to have authority to sign such an agreement and had only been retained to find a purchaser. They sent this agreement to Carrothers, in care of King Edward
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Hotel, Toronto, Ont., where he had said he was going, to be executed by him and returned.
The agreement was returned about a month later as uncalled-for. Thereupon the agreement was forwarded by respondents to Carrothers, at Edmonton, Alta., where he lived, but it never came back and, presumably, never was executed by him.
Some correspondence is alleged to have taken place later between him and respondents but that, though tendered in evidence by them, was rejected.
All we have of it is a copy of the letter from respondents enclosing the agreement from which it appears they asked him to sign and return one copy so duly executed attached to a bank sight-draft for the sum of $450, being the cash payment less respondents’ commission.
On the 1st of June appellant says he called upon the respondents for a receipt for the money he had paid and got the following:—
March 20th, 1912.
Received of George S. Peacock $500, first payment on lots 1 and 2, block 108, Old City, bought from us at $1,000; one-half cash and the balance 6 and 12 months at 8 per cent, and listed by A. F. Carrothers.
(Sgd.) Dad Land Company,
R. Tinck.
The appellant meantime, on the 28th March, resold the property to Wright and Boyle, real estate agents, and, pursuant thereto, he and they signed an agreement for the sale and purchase thereof at the price of $2,000, of which $767 was to be paid in cash and balance spread over two years bearing interest at eight per cent per annum.
They re-sold to one Seller at the price of $2,500 and assigned the said contract to him by an assignment
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which is not amongst the documents before this court. A recital in the later agreement of August, hereafter referred to, indicates the assignment was executed on the 1st of April.
On the 3rd of June appellant concluded he could not get title to the property and “immediately took steps to re-purchase the property” from William Seller and succeeded in doing so at the price of $3,100. The exact date of that purchase is not given in evidence. And Seller was not called as a witness.
On the 4th of June respondents wrote appellant explaining that they had failed to get delivery of the lots and, to repay the cash payment, enclosed a cheque for $500, which was returned by appellant on the 30th of July.
Meantime some meetings of the parties hereto were held relative to the matter and, on one occasion, Boyle and Seller were both present to state what they had done, but the respondents on every occasion repudiated liability for damages appellant was then and there claiming from them. On one of these occasions respondents offered to give the cash if any doubt existed about the cheque being, as such, satisfactory, but appellant refused and seems to have insisted on these occasions on damages for the loss of profits and those differences in price which he said he had paid these sub-purchasers which seemed, in his view, to be his measure of damages.
On one or more of these occasions the appellant stated his grievances in the matter, omitting, however, the one most essential part of his story to which I am about to refer.
On the 5th of August an agreement was made in
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writing between Wright and Boyle of the first part, Seller of the second part and appellant of the third part, for rescinding and releasing said sub-sale and amongst other recitals therein was the following:—
And whereas it has been discovered by all the parties hereto that the party of the third part did not have the right to call for a title to the said lots nor any contract with the registered owner thereof and is unable to furnish any title nor will he be able to furnish any title to said lots, and it has been deemed expedient by all the parties hereto that, instead of the said respective purchasers under the said agreement and assignment insisting upon title being given according to the terms of said agreement and assignment, that the said agreement and assignment should be abandoned, and the moneys paid thereunder returned and the parties thereto compensated for their loss as hereinafter set forth.
The appellant says that when Tinck came to him with the agreement of sale by Carrothers and before he (the appellant) signed as above set forth the following conversation took place:—
Q. Now just state slowly what the conversation was?
A. As soon as I saw the name of the vendor was A. F. Carrothers, I asked the defendant Tinck if he was sure that these lots could be delivered by Carrothers. He assured me that they could. I asked him if he had searched the title of these lots. He told me that the defendant Wilkinson had searched the title and that Carrothers was registered owner. I then referred to the matter that I knew that Carrothers had been in business here, and I wanted to know if there had been any execution against him. I understood that he had been in business difficulties. And he stated positively that there were no executions against him; the title was clear. He also said, “If you want any further protection in the matter we will have a caveat put on these lots for you.”
In regard to this statement he is corroborated by his bookkeeper, Blenkhorn, to whose remarkable memory I may advert to later. Meantime I assume, for argument’s sake, the truth of appellant’s story and will therefore consider in light first thereof, standing alone, what (if any) claim appellant can found thereupon and next how in light of his own conduct he can make any claim.
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Counsel for appellant puts his claim in a variety of ways. One of these is put in a two-fold sort of way of an assurance that the respondents undertook to sell the property or that it would be sold and delivered to the appellant so that he would have the title conveyed to him.
In either of these ways of presenting the matter it simply, when stripped of needless verbiage, means a contract of sale by respondents and the facts do not bear out any such contention. The respondents never professed to sell the property in any other capacity than as agents. The documentary evidence seems conclusive in this regard.
Then it seems to have been presented below as, in fact, an agent professing to sell and selling property he had no authority to sell. Again the facts are against appellant for the agents had authority to procure a purchaser and never signed any contract of sale. Their principal never signed any either. There cannot be found anything upon which an action for breach of warranty as agents can lie.
Indeed, it is difficult to grasp any of these elusive theories put forward and apply them in light of the evidence to any principle of law that would found an action for breach of contract. The suggestion is also made of a collateral warranty, but that must fail also as there was no contract to which it could be collateral.
The fifth and only ground which can be made to wear a plausible appearance in law is stated in the factum as follows:—
5. Alternatively to all the foregoing grounds because, by reason of the false and fraudulent statements of defendants, the plaintiff was led into and suffered damage.
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The general statements as to producing title are of no material consequence for they are nothing more than any real estate agent might properly use affirming his belief in his client being ready to perform that which he had authorized to be done on his behalf.
No action can lie for any such thing so long as the agent confines himself to what he has been authorized to carry out and has no reason to believe the principal is acting dishonestly.
The only serious matter, in what appellant states he was told by Tinck, is that relative to Wilkinson having searched the title and found Carrothers to be the registered owner and that there were no executions against him.
Tinck positively denies these allegations and Wilkinson says he had never till August searched the title. And it puzzles me to understand how or why any sane man should tell such a senseless falsehood liable to be discovered at any moment at an expense of twenty-five cents for a search.
But appellant says more; that the man telling him offered to protect him further by filing a caveat. And apparently that very every-day proposal in such cases led to the discovery, as it was sure to do, that Carrothers never was registered owner.
He did not file any caveat, but appellant did at an expense, he says, of five dollars, on 10th of April. The caveat is produced and therewith the affidavit of appellant sworn on the 4th of April just fifteen days after he had been told, if a word of truth in his story, that Wilkinson, the respondent, had searched and found Carrothers to be the registered owner.
The caveat consists of a notice to the registrar of
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which the part essential to our present inquiry is as follows:—
Take notice, that I, George S. Peacock, of Regina, in the Province of Saskatchewan, claiming an equitable interest under and by virtue of an agreement of sale between A. F. Carrothers, of the City of Edmonton, as vendor, and myself, George S. Peacock, of the City of Regina, in the Province of Saskatchewan, as purchaser, and dated on or about the 20th day of March 1912, the said Carrothers holding the said land under and by virtue of an agreement of sale therefor made with Arthur Tyzack, the registered owner, in all that certain piece or parcel of land being lots numbers one, * * * etc.
describing the lands in question.
The appellant as such caveator, verifying said statement, swears amongst other things, as follows:—
1. That the allegations in the above named caveat are true in substance, and, in fact, to the best of my knowledge, information and belief.
And this man, thus swearing, is asking damages from a court of justice for having been fraudulently induced by the statement that the said registered owner was Carrothers. Need I say that in law, unless in fact a false statement induces a man to act upon it to his damage, he has no right of action; and that unless he has taken the means a prudent man would be expected to take when so acting upon a false statement, he has no action of deceit?
Can any one, in face of such an unfounded affidavit by appellant, so inconsistent with the story of a belief in Carrothers being registered owner, believe he, appellant, was so induced by the alleged fraudulent statement?
But that is not all, for Wilkinson was called as a witness and testified as to what transpired at one of the meetings I have referred to above as follows:—
Q. Then do you remember any other important conversations that you had with him?
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A. I remember him coming to the office on Cornwall street and bringing two gentlemen with him, Mr. Boyle and another gentleman.
Q. Your office was on Cornwall street?
A. Yes.
Q. And you had a conversation at that time?
A. Yes.
Q. There was Mr. Peacock and Mr. Boyle, and this other gentleman, and yourself?
A. Mr. Tinck was there also.
Q. And what took place at that time?
A. Mr. Peacock made a demand for compensation for some loss that he alleged he had sustained.
Q. And did you agree to give him compensation?
A. We did not.
Q. Did he at that time charge that you had told him that you would search the title to this property?
A. He did not.
Q. Did be say in the presence of Mr. Boyle or Mr. Tinck or anybody else that you had guaranteed to deliver this property to him?
A. He did not.
Appellant nowhere states that he had ever made it a matter of reproach to these respondents, or either of them, when claiming damages that he had been told such a palpable falsehood as he now charges against Tinck, and founds this action upon. If he had been told what he says and trusted it, then was the time respondents and others should and doubtless would have heard of it.
Wilkinson swears he never searched till August, (and he could easily have been contradicted if he had or could have been proven to have known or been told of this discovery,) yet no one appears to; say so except what appellant says, and then only inferentially.
Appellant was recalled after Wilkinson had testified as above, but did not venture to contradict his very material statement.
How could a man misled by such a story as he now puts forward forbear from charging him or his partner or both with the alleged deception he now relies upon?
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No one ever seems to have heard of it except Blenkhorn.
When, on cross-examination, appellant was brought face to face with the said caveat, he speaks thus:—
Q. Mr. Peacock, at the time you signed the caveat did you know whether Carrothers had bought this property under any agreement of sale from anybody? At the time you signed the caveat you knew that the property was not registered in the name of Carrothers?
A. I did.
Q. Did you have any information that Carrothers had bought from any particular person?
A. After I signed that caveat I called up the defendant Wilkinson—
Q. Never mind after you signed the caveat. At the time you signed the caveat did you know whether Carrothers had bought from anybody — how he held the title?
A. No; I did not.
Later he tries an explanation that does not in the least degree ameliorate his position, but seems to indicate that his solicitors had some telephone conversation with Wilkinson, after their discovery that Carrothers was not the registered owner, in which he alleges Wilkinson had remarked “well he must have it under agreement for sale,” all of which is hearsay.
But Wilkinson was recalled and testified thus:—
Q. Did you ever tell Mr. Peacock over the telephone or in any other way that Carrothers held this property under agreement of sale from Arthur Tyzack, the registered owner?
A. No, sir. I wasn’t aware that Mr. Tyzack owned the property or was the registered owner,
and was allowed to go without cross-examination or any contradiction from those in the solicitor’s office.
Blenkhorn, the corroborator of the appellant, in-cross-examination, testifies as follows:—
Q. Have you discussed your evidence with anybody?
A. I have mentioned the matter.
Q. Have you talked it over with Mr. Peacock?
A. Well, very little.
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Q. Have you not gone over your story together?
A. Never gone over my story.
A. And never gone over it with my learned friend?
A. No.
The improbability of this adds nothing to the strength of his story or to inspire confidence in his corroboration.
Indeed, in one of appellant’s answers he says, after being positive, as follows:—
A. When he stated the title was clear of incumbrance and in the name of A. F. Carrothers, I understood him to say that Wilkinson had searched the title.
On the foregoing no court should allow any damages for fraud, even if suffered, when so clearly not relied on, and reliance thereon only supported by the oath of a man who could deliberately take the oath above set forth so inconsistent with his having relied upon the pretended assurance.
Even if the case had been something better than it is there never was, in law, any ground for damages by reason of the re-sale and that being re-assigned.
Appellant could not have been called upon for damages flowing from the failure to make title to Boyle and Wright unless he was deliberately trying to defraud these other gentlemen. Nor in that case could he look to any one else to reimburse him. And the recital above quoted from the agreement of August with said sub-purchasers indicates no such ground was ever taken.
The case of Bain v. Fothergill, within which all such like claims as herein involved fall, is yet good English law as introduced into the North-West. I respectfully submit the case of O’Neill v. Drinkle cannot
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be considered as governing such claims. There are many conceivable cases arising out of land sales in which damages may be recovered, but wherein they fall within Bain v. Fothergill the claim must fail. Because of simplifying or simplicity of tenure a change in the law governing such cases cannot be presumed to have taken place. On such a ground the various provinces might have different laws, and, in Ontario, for example, one law for the lands held under the old registry system and another for titles under the new system.
Within the said case, short of fraud, respondents if assumed in the position of vendors, as in one way the ease is presented, would not be liable, as no fraud is found. And there is no case on which appellant under the circumstances can succeed in treating the action as one of deceit.
I think this appeal should be dismissed with costs.
Duff J.—The learned trial judge took one view of the facts and the court of appeal took another view. And it appears to me that the crucial question on the appeal is whether or not the full court was right in rejecting the conclusion upon the facts that the trial judge had arrived at.
It is important in appreciating the conduct of the parties to keep in mind the fact that at the time when the transactions and events occurred which have to be considered there was great activity in the buying and selling of real estate in Regina, or in other words, that a “land boom” was in progress.
The respondents were real estate agents in Regina;
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and some time prior to the 19th of March, 1912, they had listed with them, by one Carrothers, certain lots which were the subjects of the transactions about to be discussed. On the date mentioned the appellant, who was a man of long experience in business, and who had had previous dealings with the respondents, while in their office in Regina, on business connected with the sale of some property owned by him, had his attention called to the lots in question by the respondent Tinck, and, having been informed of the terms on which they were listed, said that he would take them at $1,000 and pay $100 as deposit. On the following day the appellant executed as purchaser a document intended to be a formal agreement for sale between himself and Carrothers as vendor. The agreement was signed in duplicate, and the duplicates handed to the respondents with a cheque for $400, the residue of the half of the purchase price, which, according to the terms mentioned on the previous day, was to be paid in cash. These documents, together with the cheque, were forwarded by the defendants to Carrothers, at Toronto. They were never executed by Carrothers, and on the 4th of June, 1912, the respondents wrote to the appellant informing him that they had been unable to induce Mr. Carrothers to complete the sale and enclosed a cheque for the sum of $500 paid by the appellant. In the meantime the appellant had entered into an agreement for the sale of these lots at a largely increased price, $2,000, the 28th of March, 1912, being the date of the agreement, by which he covenanted to give a good title to the purchaser. Later finding that the lots were rising in price and that he was unable to obtain a title from Carrothers, he made a composition with his vendee paying him all the sum
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of $1,000 as compensation for the loss of the bargain. The plaintiffs’ claim in the pleadings was based alternatively, first, upon an allegation that the defendants had undertaken to procure the transfer of a good title to the lots in question to the appellant; and, upon an alleged fraudulent misrepresentation that Carrothers was the registered owner of the lots. The trial judge decided in favour of the appellant upon the first of these two alternative grounds. The full court reversed the judgment of the trial judge holding that what was done by the defendants was in the ordinary course of their business of finding a purchaser for Carrothers, and that they entered into no agreement either to procure a sale from Carrothers to the appellant or as agent on behalf of Carrothers to sell.
The claim based upon deceit was not, as I think, either in substance or in form passed upon by the learned trial judge. The full court appears to have rejected this claim upon the ground that certain misrepresentations of fact were not shewn to be fraudulent, and that the plaintiff’s loss was not due to the respondents’ misrepresentations, but to his own recklessness in entering into a binding agreement for the sale of the lots before he had procured a concluded agreement with Carrothers for the purchase of them.
The points in dispute are questions of fact, but the right determination of these questions depends almost entirely upon the proper inference to be drawn from facts which, in themselves, can hardly be said to be the subject of controversy. My opinion, after a full examination of the evidence is that the judgment of the full court was right.
One point ought to be noted at the outset and that
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is that the mere listing of property, as it is called, with a real estate agent does not itself involve the grant of any authority to him to enter into a binding contract of sale on behalf of the vendor. Where sales are made in the course of a “land boom” it perhaps most frequently happens that the seller who lists his property with the real estate agent has a title resting upon one or more, sometimes upon a long series, of executory agreements and it is of the greatest importance that the conditions of any contract of sale should be so drawn as to protect him fully, and this, without special instructions, the agent is, of course, not competent to do. Some confusion, no doubt, has arisen from the use of the term “real estate agent” which describes, of course, not the legal relation between the two parties, but merely the nature of the so-called agent’s occupation. The mere listing of property with such an agent implies nothing more than a representation that the proprietor is prepared to do business upon those terms and is not in itself an offer to sell which may be accepted and converted into a binding agreement by any purchaser saying to the agent that he will take the property on those terms. The agent’s business is to procure a purchaser, that is to say, to bring into contact with the vendor a person willing to purchase on the terms mentioned. Having done that he has performed his function and earned his commission, provided his authority is not in the meantime revoked by the sale of the property by the proprietor. The listing alone gives him no authority to bind the proprietor by a contract of sale. The fact which seems to me to be sufficiently established that the defendants did not profess to sell the lots is, in my
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judgment, the decisive fact in the case. I think that fact is established as a necessary inference, from other facts which are not seriously in dispute. I have already mentioned that the contract signed by the appellant professing to record the transaction formally into which they intended to enter was a proposed contract between himself and Carrothers which he quite well understood was to be executed by Carrothers and not by the defendants as Carrothers’s agent. That document must be taken as conclusive evidence of the character of the transaction in respect of which the sum of $400 was paid on that day to the respondents. The contemplated transaction was a contract of sale which was to be completed only when executed by both parties to it. It seems idle, in face of that, to suggest that on the day before an oral agreement of sale had been entered into between the appellant as vendee and the respondents representing Carrothers as the vendor. Any such suggestion, moreover, comes to shipwreck on the hard fact that the terms of listing made known to the appellant required the payment of $500 in cash, that is to say, contemporaneously with the constituting of the relation of vendor and purchaser between the proposed parties to the agreement.
The fact was known to both parties that the agent had no authority to conclude a contract of sale upon any such terms, that is to say, in the absence of such a payment. As no contract of sale was ever entered into professedly by the respondents on behalf of Carrothers it follows that the representations of authority to enter into such an agreement upon the terms mentioned, assuming there were such representations, the authority not having been acted upon, could not give
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rise to any right of action. It follows also that any right of action ex contractû against the respondents must rest upon some contractual undertaking on their part that Carrothers would execute the agreement signed by the appellant.
The most important evidence in support of this branch of the appellant’s case is in his statement made on cross-examination that he was told by the defendant Tinck that he could “rely on getting delivery of the property.” It is necessary, however, to read this testimony with the plaintiff’s statement that at the same time he was assured that Carrothers had the title and with the statement in his examination-in-chief to the effect that the assurance given by the defendant was a positive assurance that Carrothers could deliver the property. I do not think this evidence is sufficient to establish the existence of an agreement to procure the execution of a contract of sale by Carrothers. The point about which the appellant was concerned, as I think the evidence sufficiently shews, was the question of Carrothers’s title. It was to this point that the appellant’s questions and respondents’ assurances were addressed.
The appellant admits that he is unable to assert that he at any time believed the respondents to be selling the property on their own behalf. Read as a whole the evidence appears to be too doubtful and equivocal to justify a conclusion in the sense contended for by Mr. Frame. It is not a matter in which the conclusion of the trial judge is entitled to that weight which attaches to his opinion on any point of credibility.
I think the conclusion of the full court is to be preferred.
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There remains the question of fraud. This ground of action also obviously fails, I should have thought, once it is plain that the appellant had not a concluded contract with Carrothers for the sale and purchase of the lots; and for this short reason, that, having no contract with Carrothers, the question as to whether Carrothers had or had not a title to the land, whether he was or was not the registered owner, must necessarily have been a matter of no moment. If every representation of fact made by the respondents had been perfectly true the appellant would, in the absence of such a contract, have been in precisely the same position as he found himself in in June, unable to make a title, so far as it appears from the evidence.
It seems to have been assumed that the respondents’ failure to procure Carrothers to transfer the property to the appellant was due to Carrothers’ want of title, or rather to his lack of any right to call for such transfer. All that is mere speculation. If anything the probabilities are against it. Carrothers admittedly was not the registered owner; but that is entirely consistent with the existence in him of a right to call for a transfer of the property to his nominee.
On the other hand there is the fact that the property was unquestionably listed by Carrothers with the respondents, who, as it appears from the correspondence, entertained no doubt whatever as to Carrothers’ power to deal with it. The simple explanation as to Carrothers’s refusal to sign the agreement most probably lies in the fact that when the documents reached him he had learned that the property in the meantime had doubled in value. Knowledge of this sudden rise may also explain the haste of the appellant to enter into a contract of sale without having
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first ascertained that he was in a position safely to enter into such a contract.
Looking at the transaction broadly, one sees no reason to doubt that it was simply a case of an owner, having listed property, refusing to stand by the terms he had given to his agent, and an intending purchaser acting upon the agent’s assurances that the principal would stand by them without satisfying himself by proper inquiries whether, in point of fact, he had any contract at all with the owner of the property and suffering loss in consequence of his rashness. That in this case the assurances of the agents were understood to be contractual in their nature is not asserted in his evidence by the appellant himelf; and as such assurances — that the principal would accept and execute the proposed contract of sale — being assurances as to something which necessarily was a matter of opinion only, the appellant can only found an action upon them by obtaining a finding that they were fraudulent. The learned trial judge has not found as regards these assurances that they were fraudulent. The full court has found that they were not. An independent examination of the record satisfies me that there is no evidence upon which any finding that they were could be properly based.
For these reasons I think the appeal should be dismissed with costs.
Anglin J.—I concur with Mr. Justice Duff.
Appeal dismissed with costs.
Solicitors for the appellant: Frame, Secord, Turnbull & Goetz.
Solicitors for the respondents: Embury, Scott & Mc-Kinnon.
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