The Legal News. owner of a wall of a house, who allows it to remain standing after a fire in a dangerous condition and takes no precautions to prevent an accident, is liable for the damage caused by the falling of the wall, even if the falling takes place seven days after the fire Vol. XIV. SEPTEMBER 12, 1891. No. 37. during a high wind. SUPREME COURT OF CANADA. Quebec.] Appeal dismissed with costs. Laflamme, Q.C., Cameron, Q.C., & Butler, Q.C., for appellant. Duhamel, Q.C., & Marceau for respondent. OTTAWA, June 22, 1891. Ross V. HANNAN. Quebec.] Sale of goods by weight-Contract when perfect-Art. SCHWERSENSKI V. VINEBERG. 1474, C. C.-Damage to goods before weighing Questions of fact-Error-Parol evidence-Art. 1234— Possession retained by vendor-Effect of-Arts. 1063, 1064, 1802, C. C.-Depositary. Held, 1st. Per Ritchie, C. J., Fournier and Patterson, J J., affirming the judgment of the court below, M. L. R., 6 Q. B. 222, that where goods and merchandise are sold by weight the contract of sale is not perfect, and the property of the goods remains in the vendor and they are at his risk until they are weighed, or until the buyer is in default to have them weighed, and this is so, even where the buyer has made an examination of the goods and rejected such as were not to his satisfaction. Held, also, Per Ritchie, C. J., Fournier and Taschereau, J J., that where goods are sold by weight and the property remains in the possession of the vendor, the vendor becomes in law a depositary, and if the goods, while in his possession, are damaged through his fault and negligence, he cannot bring an action for their value. Appeal dismissed with costs. Quebec.] THE EXCHANGE BANK V. FLETCHER. The Exchange Bank, in advancing money to F. on the security of Merchants Bank shares, caused the shares to be assigned to their managing director and an entry to be made in their books that the managing director held the shares in question on behalf of the bank as security for the loan. The bank subsequently credited F. with the dividends accruing thereon. Later on, the managing director pledged these shares to another bank and absconded. Held, affirming the judgment of the court below, M. L. R., 7 Q. B. 11, that upon repayment by F. of the loan made to him, the Exchange Bank was bound to return the shares or pay their value. Appeal dismissed with costs. Art. 14, C. C. S. brought an action to compel V. to render an account of the sum of $2,500, which S. alleged had been paid on the 6th October, 1885, to be applied to S.'s first promissory notes maturing and in acknowledgment of which V.'s bookkeeper gave the following receipt:"Montreal, October 6th, 1885. Received from Mr. D. S. the sum of $2,500 to be applied to his first notes maturing. M. V. Fred.," and which V. failed and neglected to apply. V. pleaded that he never got the $2,500, and that the receipt was given in error and by mistake by his clerk. After documentary and parol evidence had been given the Superior Court, whose judgment was affirmed by the Court of Queen's Bench, dismissed S,'s action. On appeal to the Supreme Court of Canada, Held, 1st, that the finding of the two courts on the question of fact as to whether the receipt had been given through error should not be interfered with. 2. That the prohibition of art. 1234, C. C., against the admission of parol evidence to contradict or vary a written instrument is not d'ordre public, and that if such evidence is admitted without objection at the trial it cannot subsequently be set aside in a court of appeal. 3. That parol evidence in commercial matters is admissible against a written document to prove error. Etna Ins. Co. v. Brodie, 5 Can. S. C. R. 1., followed. Appeal dismissed with costs. Cooke for appellant. Quebec.] Macmaster, Q. C., for appellants. NORDHEIMER V. ALEXANDER. Where subrogation is given by the terms of a deed, the erroneous noting of the deed by the Registrar as a discharge and the granting by him of erroneous certiResponsibility-Vis major-Fire-Fall of wall after fire ficates, cannot prejudice the party subrogated. -Negligence-Damages. Held, affirming the judgment of the courts below, M. L. R., 3 S. C. 283, and M. L. R., 6 Q. B. 402, that the Appeal dismissed with costs. Butler, Q.C., and Geoffrion, Q.C., for appellant. Morris, Q.C., for respondent. Master and servant-Agreement for service-Arbitrary right of dismissal-Exercise of-Forfeiture of property. By an agreement under seal between M., the inventor of a certain machine, and McR., proprietor of patents therefor, M. agreed to obtain patents for improvements on said machine and assign the same to McR., who, in consideration thereof, agreed to employ M. for two years to place the patents on the market, paying him a certain sum for salary and expenses, and giving him a percentage on the profits made by the sales. M. agreed to devote his whole time to the business, the employer having the right, if it was not successful, to cancel the agreement at any time after the expiration of six months from its date by paying M. his salary and share of profits, if any, to date of cancellation. By one clause of the agreement the employer was to be the absolute judge of the manner in which the employee performed his duties, and was given the right to dismiss the employee at any time for incapacity or breach of duty, the latter, in such case, to have his salary up to the date of dismissal, but to have no claim whatever against his employer. M. was summarily dismissed within three months from the date of the agreement for alleged incapacity and disobedience to orders. Held, reversing the judgment of the Court of Appeal and of the Divisional Court, that the agreement gave the employer the right at any time to dismiss M. for incapacity or breach of duty without notice, such right being absolute and not required to be exercised judicially, but only in good faith. Held, per Ritchie, C. J., Fournier, Taschereau and Patterson, J J., that such right of dismissal did not deprive M. of his claim for a share of the profits of the business. Per Strong and Gwynne, JJ., that the share of M. in the profits was only a part of his remuneration for his services, which he lost by being dismissed equally as he did his fixed salary. Appeal allowed with costs. Dalton McCarthy, Q. C., for appellant. Nova Scotia.] OTTAWA, May 12, 1891. MERCHANTS BANK OF HALIFAX V. WHIDden. Bank-Agent of Excess of authority-Dealing with funds contrary to instructions-Liability to bank Discounting for his own accommodation-Position of parties on accommodation paper. K., agent of a bank and also a member of a business firm, procured accommodation drafts from a customer of the bank, which he discounted as such agent, and without indorsing the drafts, used the proceeds, in violation of his instructions from the head office, in the business of his firm. The firm, having become insolvent, executed an assignment in trust of all their property by which the trustee was to pay "all debts by the assignors or either of them due and owing or accruing or becoming due and owing" to the said bank as first preferred creditor and to the makers of the accommodation paper among others, as second preferred creditors. The estate not proving sufficient to pay the bank in full, a dispute arose as to the accommodation drafts, the bank claiming the right to disavow the action of the agent in discounting them and appropriating the proceeds in breach of his duty, the makers claiming that they were really debts due to the bank from the insolvents. In a suit to enforce the carrying out of the trusts created by the assignment, Held, affirming the judgment of the court below, Gwynne, J., dissenting, that the drafts were" debts due and owing" from the insolvents to the bank and within the first preference created by the deed. Per Ritchie, C. J.: K. procured the accommodation paper for the sole purpose of borrowing the money of the bank for his firm, and when the firm received that money they became debtors to the bank for the amount. Per Strong and Patterson, J J.: That the agent, being bound to account to the bank for the funds placed at his disposal, became a debtor to the bank, on his authority being revoked, for the amount of these drafts as money for which he failed to account. The right the bank had to elect to treat the act of the agent as a tort was not important, as in any case there was a debt due. Per Gwynne, J.: The evidence does not establish that these drafts were anything else than paper discounted in the ordinary course of banking business, as to which the bank had its recourse against all persons whose names appeared on the face of the paper, and were not obliged to look to any other for payment. Appeal dismissed with costs. Henry, Q.C., and Ross, Q. C., for appellant. W. Cassels, Q.C., and W. B. Ritchie for respondent. Nova Scotia.] MUNICIPALITY OF CAPE BRETON V. MCKAY. Municipal corporation-Appointment of board of health -R. S. N. S. 4th ser. c. 9-37 Vic. c. 6 s. 1 (N. S.)— 42 Vic. c. 1 s. 6 (N. S.)-Employment of physicianReasonable expenses-Construction of contractAttendance upon small-pox patients for the seasonDismissal Form of remedy-Mandamus. Sec. 67 of the Act by which municipal corporations were established in Nova Scotia (42 Vic. c. 1) giving them "the appointment of health officers . . . and a board of health" with the powers and authorities formerly vested in courts of sessions, does not repeal c. 29 of R.S.N.S. 4th ser. providing for the appointment of boards of health by the Lieutenant Governor in Council. Ritchie, C. J., dubitante as to appointment by the executive in incorporated counties. A board of health appointed by the executive council, by resolution, employed M, a physician to attend upon small-pox patients in the district" for the season" at a fixed rate of remuneration per day. Complaint having been made of the manner in which his duties were performed, he was notified that another medical man had been employed as a consulting physician, but refused to consult with him and was dismissed from his employment. He brought an action against the municipality setting forth in his statement of claim the facts of his engagement and dismissal, and claiming payment for his services up to the date at which the last small-pox patient was cured and special damages for loss of reputation by the dismissal. The Act allows the board of health to incur reasonable expenses, which are defined to be services performed and bestowed and medicine supplied by physicians in carrying out its provisions, and makes such expenses a district, city or county rate to be assessed by the justices and levied as ordinary county rates. Held, 1. Per Fournier, Taschereau and Gwynne, JJ., that the employment of M. "for the season" meant for the period in which there should be small-pox patients requiring his professional services. 2. Per Fournier. Taschereau, Gwynne and Patterson, JJ., that notwithstanding no provision was made for supplying the muncipality with funds in advance to meet the reasonable expenses that might be incurred under the Act, a claim for such expenses could be enforced against a municipality by action. 3. Per Ritchie, C. J., and Strong, J., that the only mode of enforcing such a claim is by a writ of mandamus to oblige the municipality to levy an assessment. 4. Per Fournier, Taschereau and Gwynne, J J., affirming the judgment of the Court below, that M. was entitled to payment at the rate fixed by the resolution of the board up to the time in which there ceased to be any small-pox patients to attend. 5. Per Ritchie, C. J., Strong and Patterson, J J., that the claim of M. was really one for damages for wrong ful dismissal, which is not within the provision in the Act for reasonable expenses. Appeal dismissed without costs. W. B. Ritchie, for appellant. Henry, Q.C., for respondent. New Brunswick.] LAMB V. CLEveland. Statute-Repeal of Restoration of former law-Distribution of intestate estate--Feme coverte-Husband's right to residuum-Next of kin. The Legislature of New Prunswick, by 26 Geo. 3, c. 11, ss. 14 and 17, re-enacted the Imperial Act 22 and 23 Char. 2 c. 10 (Statute of Distributions) as explained by 8. 25 of 29 Char. 2 c. 3 (Statute of Frauds), which provided that nothing in the former Act should be construed to extend to estates of femes covertes dying intestate, but that their husbands should enjoy their personal estates as theretofore. When the Statutes of New Brunswick were revised in 1854 the Act 26 Geo. 3 c. 11 was re-enacted, but sec. 17, corresponding to sec. 25 of the Statute of Frauds, was omitted. In the administration of the estate of a feme coverte her next of kin claimed the personalty on the ground that the husband's rights were swept away by this omission. Held, per Ritchie, C. J., Fournier and Patterson, J J., that the right of a husband to the personal property of his deceased wife does not depend upon the Statute of Distributions, but he takes it jure mariti. Per Strong, J.,that the repeal by the Revised Statutes of 26 Geo. 3, c. 11, which was passed in the affirmance of the Imperial Acts, operated to restore sec. 25 of the Statute of Frauds as part of the common law. Per Gwynne, J.; When a colonial legislature reenacts an Imperial Act it enacts it as interpreted by the Imperial courts, and a fortiori, by other Imperial Acts. Hence, when the English statute of Distribu tions was re-enacted by 26 Geo. 3, c. 11 (N.B.) it was not necessary to enact the interpreting section of the Statute of Frauds, and its omission in the Revised Statutes did not affect the construction to be put upon the whole Act. Held, Per Ritchie, C. J., Fournier, Gwynne and Patterson, J J., that the Married Woman's Property Act of New Brunswick (C.S.N.B., c. 72), which exempts the separate property of married women from liability for her husband's debts and prohibits any dealing with it without her consent, only suspends the husband's rights in the property during coverture, and on the death of the wife he takes the personal property as he would if the Act had never been passed. The Supreme Court of New Brunswick, while deciding against the next of kin on his claim to the residue of a feme coverte, directed that his costs should be paid out of the estate. On appeal the decree was varied by striking out such direction. Appeal dismissed with costs. W. W. Wells, for appellant. Skinner, Q.C., for respondent. ENGLISH COURT OF APPEAL, LONDON, Feb. 6, 1891. MEDAWAR V. GRAND HOTEL CO. Innkeeper-Liability to guests-Onus of proof. [Concluded from page 287.] LORD ESHER, M. R. The solution of this case will, to my mind, depend upon the inference of fact to be drawn from events as to which there is no doubt. There is no question here of the credibility of witnesses. We have the facts found by the learned judge, and we have to determine whether he has drawn the right inference from those facts. We are entitled to bring to bear on the facts our knowledge of the world, and I shall therefore bring to bear in this case my knowledge of the manner in which the business of hotels is conducted. The plaintiff then goes to an hotel in Liverpool. With what intention does he go there? Certainly not with the intention of making a contract. He goes there in the exercise of his right as one of the public to use the house as an hotel. An innkeeper does not make a specific contract with every individual who comes to his inn. He has no right to refuse any one; and in return for that obligation he is given a lien on his guest's luggage for his charges. course he is not bound to take any one if there is no room for him in the inn; in that case he can do nothing else but refuse to take him. In the present case, the plaintiff was told by the person left in authority for that purpose that they could not give him a room, Of contract entered into with reference to the plaintiff's luggage after the plaintiff had left the room; nor indeed was there any contract made at any time, except such as necessarily arose out of the relationship of innkeeper and guest. The plaintiff was therefore a guest at all events up to the time when his things were taken out of the room. What is an innkeeper bound to do with respect to a guest's luggage? He is bound to keep it safely. If a guest's property is lost while it liable. But the innkeeper can get rid of that prima facie case if he shows that the goods were lost by the negligence of the guest. The onus of proof of that is upon him. I think that in this case the defendants did prove that the plaintiff was guilty of negligence in leaving his jewellery in an unlocked drawer of his dressing case which he had taken out of his bag; and if they had also proved that the goods were lost in the room, then they could have shown that the goods were lost by the negligence of the plaintiff. But the defendants, through their servants, that they had no room to give him; but after reflection, the same person said that she could give him a room for the purpose of washing at that time, but that it was engaged by persons who were to arrive later. So it comes to this, that he was told that they could not give him a room to sleep in. Then his luggage is taken up to the room. The effect of what was said and done seems to me to be this: That he was to have a room in the hotel as a guest, but only for a time. Supposing that the people who were expect-is in an inn, the innkeeper is prima facie ed had not come, the manager of the hotel would never have thought of saying to plaintiff that he could not have the room for the night. His things were there and would have been allowed to remain there. There was a tacit understanding that his things were to be left in the room till the other people came. Then was the relationship of innkeeper and guest established between the plaintiff and the defendants at any time? There certainly was such a relationship, to my mind, while he was actually using the room. What other relationship could it be at that time? But it was argued that the re-cut themselves off from the possibility of provlationship only lasted while he was washing and dressing, and then came to an end. That argument admits that the plaintiff was received as a guest into the hotel. It certainly is not the ordinary custom in hotels that a guest should carry his own luggage up or down the stairs. In this case the hotel servants carried his luggage up. If he he ceased to be a guest when he had finish-corridor just as they were, with the dressing ed using the room, why did they not carry his luggage down? It is said that he ought to have given them notice to do so. Why? If the defendants knew, when the plaintiff applied for a room, that he could only have it for the purpose of washing and dressing, what need was there for him to give any notice? Supposing that to have been the understanding, it would have been the manager's duty in the ordinary course to have told the porter that the room was only given to the plaintiff to wash and dress in, and that when he had washed and dressed, his things were to be fetched down. In that case, after the guest had had breakfast, if the things had not come down, the manager should have sent up for them. There was no new ing that by turning the things out into the corridor. What happened was, that the parties to whom the room was let arrived; that they are taken up to the room by a page boy, who finds the plaintiff's things there; that he asks what to do with them, and is told by the head porter to put them out in the corridor; and that he puts them out in the case outside the bag. There can be no doubt It The effect of their being stolen in the corridor and not in the room is, that the loss then is the result of the negligence of the defendants' servants in placing the things there, and not of the negligence of the plaintiff in leaving his things about. It is like the case of the donkey left carelessly in the road and run over when it could have been avoided. The fact that the plaintiff had been negligent did not entitle the defendants' servants to be negligent afterward. The matter therefore stands thus: The plaintiff has proved that him to prove his case; whereas, if he can the loss in question was of property that he bring himself within the relationship of landhad at the hotel as a guest; the defendants lord and guest, it lies on the landlords to dishave left it in doubt whether the loss occurr- charge themselves from liability. There is ed through the negligence of the plaintiff or no doubt that during the whole of the day on through the negligence of their own servants; which the plaintiff arrived at the hotel his in order to escape liability they were bound goods were on the permises, and that in the to prove that the loss occurred through the course of the day some of them disappeared. negligence of the plaintiff; and the defend- The difficulty in the case arises from the fact, ants are therefore liable, apart from the act that if the loss of the goods happened before of Parliament which I am about to refer to, they were removed by the defendants from for the whole amount of the claim. The act the room where the plaintiff had left them of Parliament (26 & 27 Vict., chap. 41) leaves to the corridor, there would then have been the rights and obligations of the parties as such negligence on the plaintiff's part causing they were before, but says that the plaintiff the loss as would prevent him from recovershall only recover £30,unless he can show that ing, notwithstanding the subsequent neglithe loss arose through the wilful act, default or gence of the defendants; if the loss happenneglect of the defendant or his servants. To ed after they were removed, then the plaintiff get rid of this limitation of the defendants' would be entitled to recover. We desire to liability the plaintiff has to prove that the know therefore whether the goods were lost loss has been the result of such wilful act, before or after they were removed; but we default or neglect, and I think that he must are unable to ascertain. Thereupon it becomes prove that the loss was solely so caused, necessary to decide upon which of the parties and that if it may have been caused partly the onus of proof rests. And this depends, by his own negligence, he fails to get rid of as I have said, upon whether the relationship the limitation. In the present case I think of host and guest ever existed between them, that the plaintiff has not shown that the loss and upon whether, if it ever existed, it ceaswas caused solely by the wilful act, defaulted when the plaintiff left the hotel in the or neglect of the defendants' servants. If morning. If such a relationship never the goods were lost after they were placed in the corridor the loss was so caused; but the burden of proof is upon the plaintiff to show that. As it is not proved whether the loss occurred in the room or in the corridor, and as, for this purpose, the onus of proof is shifted, I think that the plaintiff has failed to get rid of the limitation of liability given to the defendants by the act of Parliament. existed, or if it ceased in the morning, the plaintiff would have to show that the goods were lost after they were put out into the corridor, which he could not do, and his action would consequently fail. In considering what was the relationship be tween the parties, you start with this, that a person who goes to an hotel has the right to the use of an unoccupied room. If a room is In my opinion there ought to have been let to a guest who has not arrived, that is an judgment for the plaintiff for £30. BOWEN, L. J. This case turns on inferences of fact, but it is an interesting case to a lawyer, because the result depends upon nice questions as to onus of proof. In order to arrive at a correct conclusion, it is necessary to follow the shifting of that onus from the defendants to the plaintiff. The reason why we have to determine whether the relation of innkeeper and guest existed between the defendants and the plaintiff is, that if the plaintiff can only rely on the negligence of the defendants as bailees, it is, of course, for unoccupied room. Until the room is actually wanted for the guest who has engaged it, it seems to me that the hotelkeeper is bound not to refuse accommodation at his house to any person applying for it. The hotel is not full until those who have engaged the rooms have arrived. The plaintiff, when he arrived at this hotel, was told by the manageress that the hotel was full, that he could not have a bed room, but that there was a room then vacant, which was engaged by a lady and gentleman who were expected to arrive during that day, but that the plaintiff could |