warrants a finding that plaintiff had, by himself and his tenants, exclusive possession of the property, and exercised in regard to it unequivocal and open acts of ownership. He is assessed as owner throughout this entire period. The assessment roll for the year 1887 shews Barney Lefores to have been assessed as tenant, James Coulter as owner.

He had between 1884 and 1893 as tenants Kerr, Lefores, and Trueman. His brother John held under him for some time, and, during vacancies, plaintiff or his agent held the key. John Coulter fully corroborates plaintiff's evidence in regard to this, and defendant states that during this period nobody but plaintiff got anything out of the property. He made certain improvements and repairs. He maintained an action against an adjoining owner for an encroachment, and, generally speaking, he managed and controlled the property as he pleased. I can find no evidence of any agreement or arrangement under which plaintiff's occupation or management of the property should be regarded as that of an agent or trustee for his mother..

Then in 1893 defendant moved into the property, and shortly afterwards plaintiff brought his mother to reside with the Rockwells. Plaintiff says that defendant went in as his tenant and remained on the property in that capacity until 1896. Defendant denies this, and says that he went in at the request of Mrs. Coulter senior, and to live with and take care of her. It is clear that, after he went out in 1896, plaintiff again had possession, and between 1896 and 1898 he had at least two tenants in under him. In 1898

defendant went in again, and upon the evidence of John Coulter I find that the Rockwells obtained the key from him. plaintiff having left it with John for them, and that plaintiff also had the house prepared for them before they went in. Moreover, during the 3 years, 1894, 1895, 1896, the property was assessed to James Coulter as owner and James Rockwell as tenant. Indeed from 1883 to 1899 the assessment rolls shew plaintiff to have been continuously assessed as owner.

Upon these facts and because I incline upon the whole to credit plaintiff's evidence rather than that of defendant and his wife, I find as a fact that defendant was in occupation from 1893 to 1896 as tenant under plaintiff, and therefore that plaintiff has established continuous and uninterrupted possession by himself as owner and by his tenants

from about May, 1884, to 1898. This suffices to establish his title.

But, upon the evidence of plaintiff and of John Coulter, I also find that J'ames Rockwell in 1898 again became tenant of plaintiff upon the terms of paying his rent, while she should remain with him, by supporting plaintiff's mother, and thereafter at the rate of $6 per month. Mrs. Coulter senior died in October, 1898. From that time defendant James Rockwell is liable to plaintiff for rent. This action was not begun, however, until 8th September, 1905, and plaintiff's recovery for rent must, therefore, be limited to the period commencing 8th October, 1899: R. S. O. 1897 ch. 72, sec. 1 (a).

Judgment will accordingly be entered declaring plaintiff as against defendant to be the owner and entitled to the possession of the lands, and for payment by defendant to plaintiff of rent at the rate of $6 per month from 8th September, 1899, and his costs of this action.

OCTOBER 12TH, 1905.

DIVISIONAL COURT.

COPELAND v. WEDLOCK.

Principal and Agent-Agent's Commission on Sale of Land -Procuring Purchaser-Contract-Purchaser Declining to Complete Contract.

Appeal by defendant from judgment of senior Judge of County Court of York in favour of plaintiffs, in an action brought to recover a commission which plaintiffs alleged they had earned for having procured a purchaser for certain house property belonging to the wife of defendant, which had been placed in their hands for sale by defendant.

E. E. A. DuVernet, for defendant.

T. P. Galt, for plaintiffs.

The judgment of the Court (MEREDITH, C.J., FALCONBRIDGE. C.J., MACMAHON, J.), was delivered by

MEREDITH, C.J.:-It appears that plaintiffs are brokers or land agents in the city of Toronto, and had done business previously for defendant, who placed the property in question

in their hands for sale, the price fixed being $6,300. The purchaser, by name Sauble, who was accepted by defendant. was procured, and entered into an agreement by which he bound himself to purchase the property at the price of $6,300. He made an offer in writing to purchase at that price, which was accepted by defendant. By the terms of the agreement for sale there were conditions as to the title and the right to the vendor, if he was unable or unwiling to answer requisitions upon title, to rescind the contract.

The time fixed for the completion of the contract was the 17th January, and time was by one of its provisions of the essence of the contract.

The purchaser, Sauble, a few days after the contract was made, assigned his interest under it to another man. The assignee requested time for the completion of the purchase, and time was given, until 1st February. Upon 1st February the solicitor for the appellant demanded performance of the contract, and said if it was not carried out and completed that day the vendor would no longer be bound.

The matter seems now to stand in the position that the assignee of the purchaser has brought an action for specific performance, which is still pending. The position taken by defendant is that the contract is no longer subsisting, having. as he alleges, come to an end owing to a breach of its conditions on the part of the buyer.

We are of opinion that the judgment of the senior Judge of the County Court is right. This is a case, upon the testimony, of the ordinary contract between the land agent and the owner of property, and, as we understand the law, if a person occupying the position of these plaintiffs is authorized to find a purchaser for property at a price named, and does find a purchaser satisfactory to his principal, and procures a binding contract to be entered into, he is entitled to his commission, although the sale does not go through owing to the default of the buyer.

The argument on the part of defendant was that the contract was one which did not entitle the agent to any commission unless the sale went through, or until the purchase money was received. A number of cases were cited by counsel for defendant in support of that proposition. All of them are entirely distinguishable from this case and afford ground in support of plaintiffs' case rather than of defendant.

The case of Peacock v. Freeman, 4 Times L. R. 541, was cited by Mr. DuVernet. That case proceeded upon the ground that upon the true construction of the contract the commission was to have been payable only on a completed sale, and if that had not been the conclusion of the Court-a conclusion which was fatal to the claim for commission-the commission would undoubtedly have been held to be payable.

Grogan v. Smith, 6 Times L. R. 427, in appeal 8 Times L. R. 132, proceeded upon the ground that no completed contract was ever entered into, that the proposed buyer and the seller never came to an agreement.

Battams v. Tompkins, 8 Times L. R. 707, proceeded, like the Peacock case, upon the ground that by the terms of the contract the commission was payable only on the completion of the purchase.

Lott v. Outhwaite, 10 Times L. R. 76, proceeded upon the same ground.

In Beale v. Bond, 16 Times L. R. 311, and in appeal 84 L. T. 313, where the judgment of the trial Judge was reversed, the decision in favour of the appellant proceeded upon the ground that the contract was a very special one and not a bargain to pay commission in the ordinary way.

This, as I have already indicated, in our view was a bargain to pay commission in the ordinary way.

Block v. Ryan, 4 Court of Appeals of the District of Columbia, 183, was also referred to. That case is also plainly distinguishable. There are some observations which may possibly support the argument of the counsel for defendant. Those expressions of opinion were not necessary for the determination of the case, and, if they were intended to express the view of the Judge who delivered the judgment of that Court, they are not in accordance with the English decisions. There the contract which was entered into was not an absolute contract for the purchase of the property, but it gave the purchaser a right to complete the purchase upon the terms agreed upon, within 30 days, with an option within. that time, if he chose to do so, to declare the sale off and to forfeit the deposit. It was held that as the purchaser had exercised that option a purchaser had not been found so as to entitle the agent to commission. It seems a plain case, and, as I have said, is plainly distinguishable from this case.

Mackenzie v. Champion, 12 S. C. R. 649, was also referred to. That case, I think, instead of supporting the contention of defendant, is a strong decision against him, inferentially,

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at all events. There the action was brought, as in this action, to recover commission. The agent had procured a purchaser, but had failed to get him to execute a binding contract, which, according to the view of the majority of the Court, although there was a strong dissenting opinion by Mr. Justice Strong, was part of his duty in order to entitle him to his commission, and the sale had gone off because there was no binding contract; and it was upon that ground-that the agent had not done all that he was bound to do that he failed to recover. It was, as I have said, in the view of the majority of the Court, his duty to have procured the execution of a binding contract, and that he had not done.

It is plain that had such a contract been procured, the view of the Court would have been otherwise. Mr. Justice Henry, who delivered one of the judgments favouring the views taken by the majority of the Court, says, at p. 661: "Now to complete that sale, it was his duty to take a binding contract from the party to whom he sold; otherwise he did not perform his agreement." The manifest corollary from that is that if he had taken a binding agreement he would have been entitled to his commission, regardless of whether or not the contract had been carried out.

In Kirk v. Evans, 6 Times L. R. 9, the decision was against the agent, but there Baron Pollock, in delivering the judgment, said he came to his conclusion "not without some difficulty; but regard must be had to the general rule that commission was earned when the contract was obtained. This was the general rule of commercial contracts and those for the sale of goods, and was quite apart from the solvency of the purchaser or his power to perform his contract." Then he goes on to distinguish the case before him and to shew that it was not such a contract.

In one of the cases already referred to (Grogan v. Smith). Lord Esher, in delivering judgment, said: "The agent in order to earn a commission was to get a purchaser, an actual purchaser, not merely a person who might become a purchaser, but one who would enter into a binding contract binding him to purchase the house."

In Beale v. Bond the Master of the Rolls, in delivering judgment, said: "This is a very special contract by which the plaintiff made a special bargain with the defendant, and not a bargain to pay commission in the ordinary way. The plaintiff did not intend to pay anything. The defendant was not to be paid by the plaintiff at all, but was to take any difference between £1,150 which might actually be received