Supreme Court of Canada
Kirby & Gardner Real Estate Ltd., Ginter et al. v. Oldfield, [1976] 1 S.C.R. 292
Date: 1975-01-28
Benjamin George Ginter, Tartan Brewery Ltd. and B & Z Transport Ltd. (Defendants) Appellants;
and
Oldfield, Kirby & Gardner Real Estate Ltd. (Plaintiff) Respondent.
1974: December 12, 13; 1975: January 28.
Present: Martland, Judson, Ritchie, Spence and Dickson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Agency—Commission—Claim by real estate agent against purchaser of building—Contradiction on fact—Trial judge accepting defence evidence—Defendant instructing plaintiff to make offer—Offer rejected—Action for commission dismissed.
APPEAL from a judgment of the Court of Appeal for Manitoba allowing an appeal from a judgment of Solomon J. Appeal allowed.
G.T. Haig, Q.C., and R.A. Simpson, for the defendants, appellants.
C.R. Huband and D. Marv, for the plaintiff, respondent.
The judgment of the Court was delivered by
JUDSON J.—Oldfield, Kirby & Gardner Real Estate Ltd., a real estate company engaged in business in the City of Winnipeg, sued Benjamin George Ginter, Tartan Brewery Ltd., and B & Z Transport Ltd., for a commission which it claimed to have earned as Ginter’s agent on his purchase of a building in Transcona, Manitoba, in which he established a brewery. The action was dismissed at trial. This judgment was reversed on appeal and the commission awarded to the plaintiffs. The dissenting judge in the Court of Appeal agreed in full with the reasons delivered at trial and would have dismissed the appeal.
[Page 293]
This is a case where there was serious contradiction on fact between the stand taken by the plaintiff and that of the defendants. There is a thorough analysis of this evidence in the judgment at trial and there is no question that on matters of fact and credibility, the trial judge accepted the evidence of the defence. The matter is summarized in the concluding paragraph of the dissenting reasons delivered in the Court of Appeal, as follows:
Many other points might be cited. Suffice it to say that the learned trial Judge came to the conclusion, as I do, that the only time the plaintiff could have acted on Ginter’s behalf so as to make him liable to pay the plaintiff a commission was when he instructed the plaintiff by telephone to make an offer, which was not accepted. Further, Solomon, J., who is a Judge of great experience saw and heard the witnesses and made findings of fact and implied findings of credibility, which I am not prepared to disturb.
I would allow the appeal and dismiss the action with costs throughout for the reasons given at trial and in the dissenting opinion of the Court of Appeal.
Appeal allowed with costs.
Solicitors for the defendants, appellants: D’Arcy & Deacon, Winnipeg.
Solicitors for the plaintiff respondent: Richardson & Co., Winnipeg.
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