Crighton v. Roman, [1960] SCR 858

Supreme Court of Canada

Crighton v. Roman, [1960] S.C.R. 858

Date: 1960-10-04

John D. Crighton (Plaintiff) Appellant;

and

Stephen Boleslav Roman (Defendant) Respondent.

Stephen Boleslav Roman (Defendant) Appellant;

and

The Toronto General Trusts Corporation, as Executors of the Estate of William Raey Featherstone, Deceased, (Plaintiff) Respondent.

1960: March 23, 24, 25; 1960: October 4.

Present: Kerwin C.J. and Taschereau, Cartwright, Martland and Ritchie JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Trusts and Trustees—Mining claims—Sale of partnership asset—Failure to account for partial consideration by managing partner—Validity of release of beneficial interest.

R purchased certain mining claims. C, who accepted an offer to join in the purchase, claimed that it was agreed that R should have a 50 per cent interest and that C and an associate F should each have a 25 per cent interest.

Title was taken in the name of a trustee P, who later, upon instructions from R, sold the claims to North Denison Mines Limited for a price which was eventually set at $15,000 plus 100,000 fully paid shares of North Denison.

P, upon further instructions from R, and upon receiving a release from C, transferred the North Denison shares to another company which was controlled by R. In consideration of C signing the release, R waived payment of some money owed to him by C. The proceeds of these shares came into the hands of R in the form of 100,000 shares of New Denison Mines Limited, all of which were free from the terms of an escrow agreement to which 90,000 of the North Denison shares had been subject. The “free” shares were later exchanged for shares of Consolidated Denison Mines Limited.

The $15,000 was duly accounted for; one-half being paid to R and his nominee and one‑half to C, who gave his own cheque to F for one-half the amount received by him. However, R did not account to F or his estate for any part of the shares.

In an action taken by the plaintiff trust company, on behalf of F’s estate, and C, judgment was given for the trust company against R. C was unsuccessful. The Court of Appeal dismissed appeals by R and C and a cross-appeal by the trust company. R and C appealed to this Court.

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Held (Kerwin C.J. dissenting as to C’s appeal): R’s appeal should be dismissed. C’s appeal should be allowed.

Per Kerwin C.J. and Taschereau, Cartwright, Martland and Ritchie JJ.: The partnership asset or that which it had become through R’s dealings was vested in R as trustee and he must account for it. Before he dealt with the shares in a manner inconsistent with the duties attaching to his fiduciary position he had knowledge of F’s beneficial ownership.

Per Taschereau, Cartwright, Martland and Ritchie JJ.: R stood in a fiduciary relationship to C as well as to F, and when he received the shares which he placed in P’s name he was a constructive trustee of those shares to the extent of C’s beneficial interest therein.

R did not obtain a valid release or transfer of C’s beneficial interest. He was in the position of a trustee purchasing from his cestui que trust the latter’s beneficial interest in the trust property. In failing to make full disclosure to C of all the material circumstances he failed to satisfy the onus, which lay upon him, of supporting the transaction. Williams v. Scott, [1900] A.C. 499, Brickenden v. London Loan and Savings Co., [1934] 3 D.L.R. 465, referred to.

C was entitled to the same relief as that awarded by the courts below to F’s estate, subject only to R’s entitlement to the amount of which he waived payment in consideration of C signing the release.

Per Kerwin C.J. dissenting: C owed money to R and his release under seal to P, acting for R, cannot be set aside.

APPEALS from a judgment of the Court of Appeal for Ontario, affirming a judgment of Judson J. Appeal of John D. Crighton allowed, Kerwin C.J. dissenting. Appeal of Stephen Boleslav Roman dismissed.

C.R. Archibald, Q.C., for the plaintiff, appellant.

J. Sedgwick, Q.C., and J.D. Arnup, Q.C., for the defendant, respondent.

T. Sheard, Q.C., for the plaintiff, respondent.

THE CHIEF JUSTICE (dissenting as to Crighton’s appeal): I have had the advantage of reading the reasons for judgment of Cartwright J. I agree that Roman’s appeal fails and should be dismissed with costs. However, I am unable to concur that Crighton’s appeal should succeed as I find it impossible to dissent from the views of the trial judge and the Court of Appeal that Crighton owed money to Roman and that the release under seal by Crighton to Peacock, acting for Roman, cannot be set aside. I would, therefore, dismiss Crighton’s appeal with costs.

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The judgment of Taschereau, Cartwright, Martland and Ritchie JJ. was delivered by

CARTWRIGHT J.:—These two appeals arise out of an action brought by The Toronto General Trusts Corporation as Executor of the estate of William Raey Featherstone, as hereinafter referred to as “Featherstone”, and John D. Crighton, hereinafter referred to as “Crighton”, as plaintiffs, against Stephen Boleslav Roman, hereinafter referred to as “Roman”, and four other individuals as defendants.

The plaintiffs asked for numerous items of relief but we are now concerned only with the first two of these which are as follows:

(a) The immediate transfer and delivery to the Plaintiff The Toronto General Trusts Corporation as executor of the estate of the late William Raey Featherstone, of 25;000 shares of the capital stock of North Denison Mines Limited.

(b) The immediate transfer and delivery to the Plaintiff Crighton of 25,000 shares of the capital stock of North Denison Mines Limited.

The action was tried before Judson J. and judgment was given in favour of the plaintiff trust company against Roman, the terms of the formal judgment being as follows:

1. THIS COURT DOTH ORDER AND ADJUDGE that the Defendant Stephen Boleslav Roman, do forthwith deliver to the Plaintiff, the Toronto General Trusts Corporation as Executor of the Estate of William Raey Featherstone, deceased, 25,000 fully paid shares of North Denison Mines Limited, or, in the alternative, the equivalent thereof being 7,143 fully paid shares of Consolidated Denison Mines Limited.

The claims of the Trust Company against all the defendants other than Roman were dismissed.

The claims of Crighton against all the defendants were dismissed.

Roman appealed to the Court of Appeal for Ontario, asking that the claim of the plaintiff trust company be dismissed or, in the alternative, that the judgment be varied by awarding the said plaintiff damages in a sum not exceeding $2,500.

The trust company cross-appealed and Crighton appealed, asking that Roman be ordered to deliver to each of them the equivalent of 50,000 shares of North Denison Mines Limited. We are not now concerned with this increased claim.

Roman’s appeal, Crighton’s appeal, and the cross-appeal of the trust company were dismissed.

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Roman appeals to this Court against the judgment in favour of the plaintiff trust company asking for the same relief as that for which he asked in the Court of Appeal.

Crighton appeals to this Court asking for judgment directing Roman to transfer to him 25,000 fully paid shares of the capital stock of North Denison Mines Limited or the equivalent thereof being 7,143 fully paid shares of Consolidated Denison Mines Limited.

Much of the voluminous evidence introduced at the trial relates to claims with which we are no longer concerned.

Some of the facts relevant to the questions which we have to decide are undisputed but as to several there is conflict between the evidence of Crighton and that of Roman.

Early in the year 1953, Crighton and Featherstone had embarked on a venture described as “the Glencair Dear”. They invited Roman to participate in this. He did so and in the course of a few weeks the matter was brought to a successful conclusion resulting in the distribution of a profit of some $300,000.

At or shortly after the date of the completion of “the Glencair Deal” Roman purchased from a prospector, named McCarthy, five unpatented mining claims in Northern Saskatchewan, known as the Skibbereen claims; the price was $10,000 in cash plus, at the option of the vendor, a further $10,000, or 25,000 fully paid shares of the capital stock of a company to be designated by Roman.

There is a conflict of evidence as to what happened at this point. Roman says that he talked to Crighton about the matter, that “to the best of his recollection” no one else was present, that he told Crighton about his deal with McCarthy and asked him whether he wanted any part of it and that Crighton agreed to take a 50% interest. Crighton, on the other hand, says that Featherstone also was present and that it was agreed that Roman should have a 50% interest and that Featherstone and Crighton should each have a 25% interest. It is common ground that Roman gave his cheque for $5,000 to the Royal Bank, which was to hold the $10,000 until the necessary documents were delivered, that Crighton gave two cheques drawn on his own account, each for $2,500, and that Featherstone in turn gave his cheque to Crighton for $2,500.

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Title to the five claims was taken in the name of E.R. Peacock, a solicitor, who executed a declaration of trust stating that he held them in trust for Roman. It is clear that throughout its existence Roman was the manager or person in control of the venture. Roman, in cross‑examination, testified as follows:

Q. You were really the manager of the operations in respect of these things—you were the one in the drivers seat?

A. Yes, it was the understanding from the start, that I was to have full power to deal with the claims.

Q. You wouldn’t have gone into it on any other understanding?

A. No.

Q. You wouldn’t have let Mr. Crighton make deals for you?

A. I wouldn’t have gone into it in any other way.

On June 30, 1953, Peacock, on the instructions of Roman, entered into an agreement with North Denison Mines Limited, whereby that company purchased the five Skibbereen claims for $25,000 and the allotment of 100,000 fully paid shares of its capital stock of which 90,000 were to be deposited in escrow with a trust company. The cash consideration was to be paid $15,000 upon the recording of the transfers of the claims and the balance of $10,000 in 90 days. The $15,000 was paid and certificates for the shares were issued in the name of Peacock. The share certificates were numbered 5756 and 5757.

In July word was received from a geologist in the field that the Skibbereen claims were of a less area than had been represented. In consequence of this an action was commenced against McCarthy. This was settled by McCarthy agreeing to accept the $10,000 he had already received as payment in full for the claims and in turn the price payable by North Denison Mines Limited was reduced from $25,000 to $15,000 plus the 100,000 fully paid shares.

On September 22, 1953, Peacock, on instructions from Roman, distributed the $15,000 received from North Denison Mines Limited. One-half was paid to Roman and his nominee and one-half to Crighton. Crighton immediately gave his own cheque to Featherstone for one‑half of the amount received by him. Featherstone died a few days later on September 29, 1953.

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Peacock still held the 100,000 shares of North Denison Mines Limited. In November 1953 he received instructions from Roman to transfer them to a company, New Concord Development Corporation Limited, which was then controlled by Roman. Peacock, who had heard that Crighton had an interest in the 100,000 shares but had not heard of the interest of Featherstone, said he would require a release from Crighton before making the transfer. Peacock prepared a release which was later returned to him signed by Crighton and which is dated November 23, 1953. There is a conflict in the evidence as to where and under what circumstances this document was signed by Crighton. It reads as follows:

To: Evan R. Peacock,
Barrister etc.,
305 Royal Bank Building,
Toronto, Ontario.

FOR VALUE RECEIVED, I hereby release my interest, if any, in certificate number 5757, North Denison Mines Limited for ninety thousand (90,000) shares of its capital stock and in certificate number 5756, North Denison Mines Limited for ten thousand (10,000) shares.

DATED at the City of Toronto, in the County of York, this 23rd day of November, A.D. 1953.

         WITNESS:

                       “L. Gardon”

                                                                                                             “John Crighton” (seal)

Following receipt of this release Peacock transferred the 100,000 shares to New Concord. I do not find it necessary to trace the course of the dealings between Roman and New Concord in regard to these shares for I agree with the finding, made expressly or implicitly by all of the learned judges in the courts below, that their proceeds came into the hands of Roman in the form of 100,000 fully paid shares of New Denison Mines Limited all of which were free from the terms of the escrow agreement to which 90,000 of those held in the name of Peacock had been subject.

These 100,000 “free” shares were later exchanged for fully paid shares of Consolidated Denison Mines Limited on the basis of one share of the stock of that company for every three and a half shares of the stock of New Denison Mines Limited.

The end result of Roman’s dealings with the Skibbereen claims, the asset of the joint venture of which he was the manager, was that he had received $15,000 and the 100,000

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shares now represented by 28,571 fully paid shares of Consolidated Denison Mines Limited. He duly accounted for the $15,000 but at no time did he account to Featherstone or his estate for any part of the shares which at the date of the trial remained in his hands.

Dealing first with Roman’s appeal against the judgment in favour of Featherstone’s executor, I do not find it necessary to reach a final conclusion as to whether, as Crighton says, Featherstone’s interest was agreed upon by Roman at the inception of the venture on March 19, 1953, when the cheques totalling $10,000 were handed to the Royal Bank, although on a consideration of all the evidence bearing on the question I think it probable that (Brighton’s version is the correct one, for it is clear that before he dealt with the 100,000 shares in a manner inconsistent with the duties attaching to his fiduciary position Roman had knowledge of Feathers tone’s beneficial ownership.

The situation as between Roman and Featherstone’s estate is accurately and succinctly stated in the following passage in the reasons of Aylesworth J.A.:

This much is clear: Roman was made aware that the Featherstone estate had an interest before the Peacock shares were transferred (at Roman’s direction) to New Concord. New Concord at the time of the transfer was controlled by Roman. That transfer was not made in the course of the partnership business or in the process of liquidation of the partnership or with the consent of the Featherstone estate and I respectfully agree with Judson J. that so far as the estate’s claim regarding the Peacock shares is concerned “there is no answer to it”. Roman as managing partner dealt with the partnership asset for his own purposes. It or that which it has become through his dealings, is vested in him as trustee and he must account for it.

I would dismiss Roman’s appeal.

Turning now to Crighton’s appeal, it is obvious that Roman stood in a fiduciary relationship to Crighton as well as to Featherstone and that when Roman received the 100,000 shares which he placed in Peacock’s name he was a constructive trustee of those shares to the extent of Crighton’s beneficial interest therein.

The reason that the courts below, while upholding the claim of Featherstone’s estate, have rejected that of Crighton is that they reached the conclusion that Crighton had released or transferred his beneficial interest to Roman for good consideration. The ascertainment of the facts as to

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the dealings between Roman and Crighton which involved the execution by Crighton of the release of November 23, 1953, hereinafter referred to as “the release” and the determination of the effect of those dealings and of that document appear to me to be the most difficult matters arising in these appeals.

In the statement of claim no reference is made to the release but in paragraph 14 there is the following sentence:

Neither the Plaintiff Crighton nor the Plaintiff Executor ever received any consideration or payment for his or its interests in all or any of the said shares, nor did they ever consent to the sale or disposition of their beneficial title or interests therein, and they hold the Defendants responsible for return to each of them of 25,000 shares of North Denison.

Paragraph 8 of Roman’s statement of defence reads as follows:

Owing to illness, the Defendant, Roman, was unable to complete the purchase of the control of Denison pursuant to the agreement with Richmond as planned and in or about the month of June, 1953, he arranged for the sale to New Concord Development Corporation Limited (hereinafter referred to as “New Concord”) of 744,900 shares of Denison, in part free and in part escrowed, and including in such sale the 100,000 shares of Denison covered by certificates Numbers 5756 and 5757 hereinbefore mentioned as well as the shares being purchased from Richmond. The Plaintiff, Crighton, orally informed the said Roman that he was no longer interested in the transaction and therefore acquiesced in such sale and under his hand and seal executed and delivered a release to Evan R. Peacock, the Defendant Roman’s Trustee, of all his interest in and to the said 100,000 shares covered by certificates Numbers 5756 and 5757. In due course the transaction with New Concord was completed and part of the consideration due from New Concord was paid dircetly to the said Richmond and/or his nominees.

It will be observed that nowhere in the statement of defence is there any allegation that Crighton received any consideration for executing the release.

No reply was delivered.

Crighton’s evidence in chief as to the signing of the release may be summarized as follows. Roman told him that he had to transfer the 100,000 shares held by Peacock to New Concord as a step in clearing up an indebtedness to one Richmond, that he required Crighton to sign “a waiver or permission”, that Roman wrote out a “slip” in longhand and Crighton signed it, that later Roman told him he required a more formal document, and he signed the release. The slip in longhand was not produced. In cross-examination Crighton agreed with the suggestion of Roman’s counsel

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that he understood the release was required for Peacock’s protection and stated that his understanding with Roman was that “sometime later if we got a suitable property we would be able to take North Denison out of New Concord”. He agreed with counsel that the alleged understanding was “nebulous”.

Roman’s evidence on the point commences at the time of the dispute with McCarthy. Roman says he wanted “to reverse the deal”, that is to sue McCarthy for return of the $10,000 and to return the $15,000 and 100,000 shares to North Denison Mines Limited, that Crighton wanted the deal with North Denison Mines Limited carried through, that Crighton wanted his share of the money and “made a suggestion” that he was not interested in the 100,000 shares that all he wanted was his share of the cash. Roman’s evidence as to this conversation, even if accepted, falls short of establishing any agreement by Crighton to transfer his beneficial interest in the shares to Roman or any consideration for such an agreement.

Peacock’s evidence, which was accepted by the learned trial judge, makes it clear that it was Peacock and not Roman who initiated the request that Crighton sign the release. Roman’s account of the signing is that he took the position with Crighton that the latter had agreed to give up his interest in the shares at the time of the discussion about “reversing the deal” and that having made an agreement he ought to stick to it, that Crighton said “Yes, I agreed but I think I should get something for it”, that Crighton went on to suggest that Roman should cancel Crighton’s indebtedness to him and in return for this he would sign the release. Crighton denies this and expressly denies that he owed Roman any money. According to Roman’s evidence it was at this meeting that Crighton telephoned the trust company to see if it would release Featherstone’s interest and in the course of the telephone conversation Crighton said to the officer of the trust company to whom he was speaking: “Well, it isn’t worth very much anyway. It’s escrowed stock most of it.”

Roman’s evidence as to Crighton’s alleged indebtedness to him is not satisfactory. I have already pointed out that it was not mentioned in the pleadings. Roman says that on

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his examination for discovery he had estimated the indebtedness at $700 but believes it would be well over $1,000, that it consisted of loans made by him to Crighton in cash from time to time, that he had no receipts, records or acknowledgments of these advances.

If I had to decide the question from the written record I would incline to the view that Roman had failed to prove that Crighton owed him anything at the time the release was signed; but the learned trial judge who had the advantage of seeing and hearing the witnesses says on this point:

I think it quite probable that he (Crighton) had been borrowing money from Roman.

* * *

The release is operative as far as Crighton is concerned but does not deprive the Featherstone estate of its interest in these shares.

I regard this as a finding of fact, based on the balance of probabilities, that Crighton did owe Roman a sum of money, the exact amount of which the learned trial judge did not find it necessary to determine, and that the release of that indebtedness formed the consideration for the signing of the release; and it is implicit in the reasons of the learned trial judge that in signing the release Crighton intended to release to Roman his beneficial interest in the shares. The Court of Appeal took a similar view of the evidence. Aylesworth J.A., with whom Morden J.A. agreed, says in part:

Crighton’s own position is very different. In my view of the evidence, his execution of the release was actually for valuable, adequate consideration, namely Roman’s agreement to forego the moneys Crighton owed him. The release is under seal and recites that Crighton is releasing his interest in what was the sole partnership asset “for value received”. The Peacock shares had little or no realizable value and no foreseeable potential future value when the release was signed. Crighton knew that; he was “familiar with Bay Street” as he put it and he, of course, knew that the marketing operation to create some saleability for the shares had been a failure. In discussing the release with Roman he was in a position to rely upon himself and his own knowledge of the situation as I think in fact he did. What apparently he did not know was that all of the Richmond shares were not being turned over by Roman to New Concord but that on the contrary, Roman was retaining 100,000 of them. Assuming he had known it and assuming, without at the moment deciding, that Roman had a duty to disclose to him the retention by Roman of the 100,000 shares, would Crighton upon such disclosure have refused to execute the release? In my opinion that knowledge would have had no effect whatsoever upon the question of his signing or refusing to sign. He knew that

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there was no peculiar value to any single block of 100,000 shares; New Concord would have a very substantial control of New Denison with or without those shares and Crighton knew quite enough about Roman’s deal with Richmond and about the fact that Roman was causing New Concord to complete that deal to appreciate that control of New Denison was passing to New Concord. With or without the transfer to New Concord of the 100,000 shares retained by Richmond (sic), the bargain struck by Crighton as his price for the release, was to Crighton’s advantage and must at the time literally have appealed to him as the equivalent of cash in the hand for something of very doubtful and unrealizable value. It is not to be overlooked that Crighton was aware of the source of the New Denison shares (Richmond) to be utilized in the ill-fated “marketing operation” and that it was Roman solely upon his own responsibility who had first procured and then dealt in those shares—that is directed the marketing operation. Crighton did not disapprove of these activities; he was whole-heartedly behind them. In all the circumstances I do not consider that Roman was under any duty to disclose the precise terms of his contract with New Concord or that the fact that he was retaining 100,000 of the Richmond shares was a material fact which would in any way affect Crighton’s action. I would affirm the dismissal of Crighton’s claim to any interest in the Peacock shares.

With the greatest respect I am unable to agree with this conclusion. On the view of the evidence most favourable to Roman he was in the position of a trustee purchasing from his cestui que trust the latter’s beneficial interest in the trust property. The conditions which must, as a general rule, exist to enable the courts to uphold such a transaction are well settled and are conveniently stated in Halsbury’s Laws of England, 2nd ed., vol. 33, pages 284 and 285, as follows:

A trustee for other purposes than for sale cannot purchase the property, where the purchase would conflict with his duties respecting it or his position in regard to it. There is, however, no absolute rule against his purchasing the trust property from his cestui que trust, and if he purchases the whole of it the relation between them is terminated. Such a transaction is always regarded by courts of equity with the utmost jealousy, and in order that it may stand, if it is impeached within a reasonable time by the cestui que trust or a person claiming through him, the trustee must show (1) that there has been no fraud or concealment or advantage taken by him of information acquired by him in the character of trustee; (2) that the cestui que trust had independent advice, and every kind of protection, and the fullest information with respect to the property; and (3) that the consideration was adequate.

At the lowest the duty which lay upon Roman was to make full disclosure to Crighton that as the result of the transaction in which he proposed to use the 100,000 shares referred to in the release he was to obtain in exchange for these shares, 90,000 of which were in escrow, 100,000 free

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shares. Far from making this disclosure he gave Crighton to believe that he was parting with the shares altogether as a step in the fulfilment of his commitments to Richmond. He knew that Crighton considered that the fact of 90% of the shares being in escrow rendered them of less value than free shares. It seems to me impossible to say that these were not material circumstances.

The onus of supporting the transaction was upon Roman and, in my opinion, he has failed to satisfy it.

The following passage in the judgment of the Judicial Committee in Williams v. Scott[1], appears to me to be applicable to the facts of the case at bar:

A trustee for sale of trust property cannot sell to himself. If, notwithstanding the form of the conveyance, the trustee (or any person claiming under him) seeks to justify the transaction as being really a purchase from the cestui que trusts, it is important to remember upon whom the onus of proof falls. It ought not to be assumed, in the absence of evidence to the contrary, that the transaction was a proper one, and that the cestui que trusts were informed of all necessary matters. The burthen of proof that the transaction was a righteous one rests upon the trustee, who is bound to produce clear affirmative proof that the parties were at arm’s length; that the cestui que trusts had the fullest information upon all material facts; and that, having this information, they agreed to and adopted what was done.

as does also the following in the judgment of the Judicial Committee delivered by Lord Thankerton in Brickenden v. London Loan and Savings Co.[2]:

When a party, holding a fiduciary relationship, commits a breach of his duty by non‑disclosure of material facts, which his constituent is entitled to know in connection with the transaction, he cannot be heard to maintain that disclosure would not have altered the decision to proceed with the transaction, because the constituent’s action would be solely determined by some other factor, such as the valuation by another party of the property proposed to be mortgaged. Once the Court has determined that the non‑disclosed facts were material, speculation as to what course the constituent, on disclosure, would have taken is not relevant.

In the result, it is my opinion that Roman did not obtain a valid release or transfer of Crighton’s beneficial interest in the shares and that Crighton is entitled to the same relief as that awarded by the courts below to Featherstone’s estate, subject only to this that as the learned trial judge has found that Crighton owed some money to Roman, payment of which Roman waived in consideration of the signing of the

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release, Roman is entitled to payment of the amount of which he waived payment. The only evidence as to the amount of Crighton’s indebtedness is that of Roman referred to above that while on his examination for discovery he had stated that he thought it was $700 he now believed that it would be well over $1,000. Based on this evidence, and in the hope of avoiding the necessity of further proceedings, I would fix the amount of Crighton’s indebtedness at the sum of $1,000, but with the right to either Crighton or Roman if dissatisfied with this amount, to have it referred to the Master of the Supreme Court of Ontario to determine the exact amount of which payment was waived.

For the above reasons, I would dismiss the appeal of Roman with costs; I would allow the appeal of Crighton, with costs as against Roman in the Court of Appeal and in this Court, set aside the judgments below in so far as they relate to the claim of Crighton and direct judgment to be entered ordering that upon Crighton paying to Roman the sum of $1,000, or such other sum, if any, as may be determined if a reference be had as above provided, Roman do deliver to Crighton 25,000 fully paid shares of North Denison Mines Limited or, in the alternative, the equivalent thereof being 7,143 fully paid shares of Consolidated Denison Mines Limited.

Appeal of John D. Crighton allowed, KERWIN C.J. dissenting.

Appeal of Stephen Boleslav Roman dismissed.

Solicitors for the plaintiff, appellant, and for the plaintiff, respondent: Roberts, Archibald, Seagram & Cole, Toronto.

Solicitors for the defendant, respondent: Mungovan & Mungovan, Toronto.

EDITOR’S NOTE: At the time of the argument of this appeal the Court was not aware of the fact that dividends had been received by Roman. Upon application made on behalf of the appellant Crighton, the Court amended the reasons already delivered so as to award the said dividends to the said appellant.