case the learned Judge exercised his discretion-and it is no ground for interfering with the verdict. Motion dismissed with costs. FALCONBRIDGE, C.J., gave reasons in writing for the same conclusion. BRITTON, J., dissented, giving reasons in writing. GARROW, J.A. C.A.-CHAMBERS. JUNE 26TH, 1905. WRIGHT v. GRAND TRUNK R. W. CO. Leave to Appeal - Order of Divisional Court - Railway Collision at Crossing-Question of Law-Duty to Look for Approaching Trains. Application by plaintiff for leave to appeal from order of a Divisional Court, 5 O. W. R. 802, setting aside verdict and judgment for plaintiff in action for damages for injuries sustained in a collision between plaintiff's waggon and a train at a railway crossing. W. Proudfoot, K.C., for plaintiff. W. R. Riddell, K.C., for defendants. GARROW, J.A.:-The question of law involved, so far as I can gather from the very brief report, was the duty or alleged duty of plaintiff to look when approaching a railway crossing. The judgment apparently proceeds upon the footing that plaintiff did not look to the east; but, on reading the notes of evidence, it is clear that he did, in the course of the approach, look in that direction, but whether he did so after he was in a position to see along the track, may be a question. His attention was taken up, to some extent, by the train to the west, which it was also necessary for him to observe, and it may be that this circumstance, in excusing him from a closer inspection of the conditions in the east, has not been sufficiently considered. The so-called "stop, look, and listen" rule, always a troublesome one, has not yet been generally adopted, and I think, without pronouncing any opinion upon the subject on this application, that plaintiff ought to have an opportunity to further discuss its limited application in the present case. Leave granted; costs in the cause. OSLER, J.A. JUNE 27TH, 1905. TRIAL. GREAT WEST LIFE ASSURANCE CO. v. MOORING. Principal and Agent Account Contract-ConstructionReformation-Liability of Sureties for Agent—Alteration in Contract-Conditions of Bond. Action for an account of the dealings of defendant George Mooring as agent of plaintiffs under an agreement, and for payment of the sums alleged to have been received by him and not accounted for, and against George Mooring and the other defendants upon their bond for the due and faithful performance of the duties and obligations undertaken by Mooring. Some of the breaches alleged against Mooring were: the not collecting and paying over premiums and renewal premiums; not accounting for and repaying advances; not devoting his whole time to the business of plaintiffs; wrongfully deducting from plaintiffs' moneys in his hands $100, and retaining it contrary to the terms of his agreement; obtaining advances from plaintiff's and not accounting therefor; and not keeping regular accounts. Defendant Mooring pleaded that he had duly performed all the terms of his agreement, and was not indebted to plaintiff's as alleged; that plaintiffs had not given him credit for commissions earned by him, and that their ledger account did not shew the true state of the accounts between them; that plaintiffs had wrongfully dismissed him from their employment without written notice, as required by the agreement, whereby he was deprived of the opportunity of earning salary and commissions which he otherwise would have earned; acts of interference by plaintiff's with policy holders in his district by which his business was injured and a large amount of insurance lost which would otherwise have been written by him. He also counterclaimed for loss and damage in respect of the matters pleaded as a defence; and also to have the agreement reformed so as to shew the real and antecedent oral agreement between the parties, which was, as he alleged, that he was to be paid a salary of $100 a month and hotel and travelling expenses while absent from Port Arthur on plaintiffs' business, and that if the commissions earned by him should amount to more than the monthly salary the excess should be paid to him, but that in any event he was to receive the monthly salary of $100 and travelling expenses; and he alleged that he signed the agreement in the belief and on the faith of representations made by plaintiffs that it contained the terms of the oral agreement. The other defendants relied on the same defences and claims as were set up by their principal, and further pleaded that plaintiffs had discharged the latter, and had not observed the terms of their agreement with him, whereby they were also discharged. They also pleaded that if the bond. sued on had been executed by them, which they denied, material alterations had afterwards been made in the agreement between plaintiffs and their principal, without their knowledge or consent, whereby they were discharged from all liability on their bond. P. E. Mackenzie, Rat Portage, for plaintiffs. W. F. Langworthy, Port Arthur, for defendants. OSLER, J.A.:-. . It will be convenient first to dispose of the separate defence of the sureties, of the alteration of the agreement after the execution of their bond. I am of opinion that this ground of defence fails. The alteration. which is relied upon as avoiding the bond is the interlineation in paragraph 9 of the contract, but I am unable to find that this was made after the execution of the bond by the obligors. The next question, which is that on which the defence substantially hinges, is as to the construction and the proposed (if necessary) reformation of the contract. Defendant Mooring's contention is that the basis of the agreement between himself and plaintiffs was that he was to receive $100 per month from defendants, and they were to pay all expenses incurred by him while he was away from Port Arthur in their interest. His idea was that this was to be paid to him absolutely and in any event, the $100 being in the nature of a salary over and above the actual commission he might earn under the agreement. Plaintiffs, on the other hand, assert that these monthly payments were merely advances on account of and chargeable against the commissions and to be accounted for when settling the same, and they say that the contract truly states the agreement. VOL. VI. O. w.R. NO. 6-13 I do not find anything in the conduct of the parties or in their correspondence or accounts during the time the contract was in force which aids defendant's claim for a rectification of the contract, or which shews that it does not embody the real agreement of the parties. The contrary is indeed the case, looking at the letters and the monthly cheques which he received; the former speak of these payments as advances, or advances on account of commission, while the latter are, I think, invariably so expressed. The monthly statements rendered by defendant are also consistent with this construction of the contract. Neither can it be overlooked that the contract was in defendant's hands for some time before he executed it, and that it was sent back to him to authenticate a slight alteration, and was returned by him duly executed without comment as to its terms in other respects. Then as to its meaning. It seems to be clear that defendant's whole compensation was to be by way of commission, which was to be paid him by plaintiffs, not to be deducted by him from moneys received by him for them, and that the payment of $100 per month was not intended to be as salary in addition to the commission, but was strictly by way of advance for defendant's own convenience, and was chargeable against and to be deducted from his commission earnings. I am unable to find that anything has taken place in the course of defendant's employment, or by plaintiffs' book entries, or otherwise, which precludes plaintiffs from insisting on their right to have an account of the dealings between them on the footing of this construction of the contract, or that defendant's cheque of 11th November, 1903, was accepted and received by plaintiffs in settlement of their claim. Then as to the counterclaim. There was no wrongful dismissal; the contract, on the contrary, was put an end to either by defendant himself or by the mutual assent of the parties. . The plaintiffs' circular letter to policy holders attached to their letter of 13th March, 1903, appears never to have been acted upon or to have affected the defendant's commissions, and therefore affords no ground of objection on the part of the sureties that their principal's rights under the agreement had been interfered with or changed. The object of the circular moreover was to increase the company's business, and incidentally the commissions which the agent would earn, by offering an induce ment to existing policy holders to increase their insurance. Further, it seems to me that the objection, if not met by these considerations, is answered by the agreement of the sureties which follows the condition of the bond, that the obligation" shall not be discharged, released, or in any manner affected, by any change either in the time or terms of employment or in the manner of remuneration of or in the duties to be discharged by the agent, or otherwise how soever." Lastly, I am of opinion that under the terms of the condition of the bond, "that the agent shall well and truly account for and pay over to the company all moneys received by him for premiums payable to the company or other moneys received by him on account of the company and all moneys payable by him to the company, and shall well and truly perform, observe, and discharge all the duties and obligations contained in the said agreement and by him to be performed," etc., the defendant sureties are liable to the extent of their obligation to pay the balance (if any) which may, on taking the accounts between the company and their principal on the footing I have mentioned, be found due to them by the latter. It was agreed at the trial that if I found in favour of the plaintiffs there should be a reference to take the accounts. The parties may agree on the referee to be appointed for this purpose, and this and any other question as to the terms of the reference may be spoken on settling the minutes of the judgment. The plaintiffs are entitled to the costs of the action; and the costs of the reference and further directions are reserved until after the referee shall have made his report. JUNE 27TH, 1905. DIVISIONAL COURT. SMITH v. O'DELL. Attachment of Debis-Denial by Garnishees of Liability to Judgment Debtor-Cross-examination on Affidavits-Refusal to Answer as to Liability to Third Person-Allegation of Identity of Third Person with Judgment Debtor. Appeal by plaintiffs from order of ANGLIN, J., ante 47, dismissing their motion to compel garnishees to answer |