Cohen v. Dominion Atlantic Ry. Co., [1931] SCR 715

Supreme Court of Canada

Cohen v. Dominion Atlantic Ry. Co., [1931] S.C.R. 715

Date: 1931-06-12

Cohen v. Dominion Atlantic Ry. Co.

1931: May 11; 1931: June 12.

Present: Newcombe, Rinfret, Lamont, Smith and Cannon JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA EN BANC

Contract—Evidence failing to establish.

APPEAL by the plaintiff from the judgment of the Supreme Court of Nova Scotia en banc[1] which reversed the judgment of Graham J. in favour of the plaintiff, and dismissed the action.

The action was for damages for breach of an alleged parol contract to supply from 12 to 15 large flat cars for carriage of Christmas trees.

Graham J. found that there was such a contract and gave judgment for plaintiff, with provision for assessment of damages.

In the Court en banc, Ross J. held that there was no contract binding the defendant to supply the cars in question; and, moreover, that the plaintiff as an undisclosed foreign principal could not sue on the alleged agreement, the agreement, if any, having been made with the plaintiff’s agent Harlow, who did not represent himself as an agent, and there never having been any intention on the part either of Harlow or of the defendant to establish any privity of contract between the parties to this action; that, although this latter point was not taken before the trial judge or raised by defendant in its pleadings, it was competent for defendant to urge this ground on the appeal, and that there was no question even of costs involved, especially as there was no allegation in the statement of claim that the plaintiff entered into the contract through an agent in Nova Scotia.

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Mellish J. concurred with Ross J. Paton J. concurred in that portion of the judgment of Ross J. deciding that plaintiff as an undisclosed principal was unable to maintain the action, but on the other point (as to a contract having been made), agreed with the conclusion of the trial judge. Carroll J. concurred in allowing the defendant’s appeal. Chisholm J. held that a contract was made, and that, if the law as to the right of an undisclosed foreign principal to sue on an agreement defeated the plaintiff’s action, the dismissal of the action ought to be on terms. In the result, the defendant’s appeal was allowed with costs, and the action dismissed with costs.

On the appeal to the Supreme Court of Canada, after hearing the arguments of counsel, the Court reserved judgment, and on a subsequent day delivered judgment dismissing the appeal with costs. Written reasons were delivered by Newcombe J., with whom the other members of the Court concurred, in which, after reviewing the evidence, and pointing out that the judgment of the trial judge did not rest upon any finding adverse to the defendant relating to credibility, but rather upon his interpretation of what was said, and inferences drawn from the material facts which were not in dispute, he stated that, after carefully examining the proof, he was, “with all due respect to the learned judges who think otherwise, in full agreement with the learned judges en banc where they deny any evidence in the case upon which it can justly be found that the respondent (defendant) contracted an obligation to supply the large flat cars that Mr. Harlow failed to obtain”; and that, having reached this conclusion, it was unnecessary to consider the other point concerning the plaintiff’s alleged incapacity as an undisclosed foreign principal.

Appeal dismissed with costs.

J. L. Ralston K.C. for the appellant.

W. N. Tilley K.C. for the respondent.