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so, if plaintiff had tendered the money to Robinson he 1904 could not have given plaintiff title. A transfer under Argument. the R. P. Act does not operate until it is registered: Herbert v. Gibson, 6 M.R. 191; Massey v.

The notice, if mailed, was

Gibson, 7 M.

R. 172.
waived by a
subsequent conversation in Haney's office. To
completely cancel an agreement for sale there must be
some unequivocal act, passing from vendor to vendee, or
a re-sale of the property: McCord v. Harper, 26 U.C.C.
P. 96; Parent v. Bourbonniere, 13 M.R. 172. Equity will
relieve against forfeiture: Empire Loan Co. v. McRae, 5
O.L.R. 710; Vernon v. Stephens, 2 P.Wms. 67. The
re-sale must be bona fide. The attempted re-sale,
Robinson to Parker, is tainted with suspicion. There is
evidence of collusion and conspiracy. Robinson did not
attempt to sell the property to anyone else but Parker;
there was a concocted scheme or device to get rid of
plaintiff's interest in the land. Parker was negligent, he
did not enquire if anyone was living on the land. The
inference one would draw is that he was allowing
himself to be drawn into Robinson's scheme. Parker
never investigated whether there were taxes due or
incumbrances. There was no investigation of any kind.
such as is found between a purchaser and vendor in good
faith. Parker was wilfully silent and wilfully refrained
from inquiry. The property, having come back to
Robinson, was re-impressed with the original obligation.
Parker, having imputed knowledge through Haney, his
solicitor, is fixed with the obligation and with the fraud
perpetrated: Dixon V. Winch, [1900] 1 Ch. 736,
Atterbury v. Wallis, 8 D.M.&G. 453; Burns v. Wilson,
28 S.C.R. 207; Rolland v. Hart, L.R. 6 Ch. 678. If
Haney was not Parker's solicitor, then he was his agent
to carry out the arrangement with Robinson and he came
within the scope of Graham V. British Canadian

1904.

Argument.

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Investment Co., 12 M.R. 244. The two points upon which plaintiff relies are, (1) that Parker cannot be held under the circumstances to be a purchaser in good faith and for value, (2) that he became fixed, through his connection with Robinson and Haney, with notice of the fraudulent scheme of depriving plaintiff of his property.

H. A. Robson, for defendant Robinson. Hough assigned all his interest to Robinson, and the latter could exercise all the powers Hough had. Default having occurred the rights under the agreement have to be considered. The vendor may cancel, with or without notice; that could be done on June 2nd. Robinson did no more than Hough would have had the right to do. The Court has to construe the contract. Refers to Addison on Contracts, 157; Roberts v. Wyatt, 2 Taunt 268. As to the right of a vendor when a purchaser makes default: Hunter v. Daniel, 4 Hare, 420; Marcus v. Smith 17 U.C.C.P. 416; Moir v. Palmatier, 13 M.R. 34. was no fraudulent scheme shown.

There

J. A. M. Aikins, K.C., for defendant Parker. Parker stands entirely independent of other parties and there is no evidence upon which any imputation should be thrown upon him. The law never presumes fraud: Kerr on Fraud, 416. The presumption is in favour of innocence: McCormick v. Grogan, L.R. 4 H.L. 97. The contract contained a provision for cancellation in case of default made, with or without notice. The vendor and his assignee had the right to cancel the contract and retain the land, or to proceed with another sale. So long as there was a default Parker would have the right to buy. The question of cancellation or notice does not affect Parker, if there was default. There has been no case made to affect Parker as the holder of a certificate of title under the Real Property Act.

1904.

DUBUC, C. J.-The question to be determined is whether the agreement from Hough to the plaintiff has Judgment. been duly cancelled, and whether Robinson became then, DUBUC, C. J. and his transferee Parker is now, the real and absolute owner of lot 277, and whether the plaintiff is entitled. to a specific performance of the agreement.

The true aspect of the case as shown by the evidence is as follows: Robinson, who was acquiring some lands adjoining lot 277, and negotiating for getting more of the adjoining lots, wanted that lot 277, so as to become the owner of a large block of land. That was, no doubt, a legitimate object, but the means he employed to obtain that end were far from being so legitimate. Knowing that the plaintiff had acquired the lot from Mr. Hough by an agreement for sale, he went to Mr. Hough and, on representing that he was negotiating, or about to negotiate with the plaintiff, to obtain his interest in the land by an exchange for some other land, he prevailed on Mr. Hough to transfer to him his own interest in the land. Mr. Hough wanted the plaintiff protected, and Robinson promised to protect him. The promise or undertaking was given by his solicitor Haney. As to this point, a ludicrous position was presented at the trial. Haney went with Robinson in May or June to see the plaintiff about the land in question when the plaintiff was asked to exchange the lot. It was Haney who went to Mr. Hough's office with Robinson's cheque to get the assignment of Mr. Hough's interest; it was Haney who drew the assignment of the agreement and also the transfer of the land from Hough to Robinson; it was Haney who, in offering to prepare himself the two instruments, obtained a reduction of $5 on the amount to be paid; the first cheque made by Robinson was for $462; the one which was given was for $457. It was Haney who undertook, in the name of Robinson, to see the plaintiff protected;

1904.

DUBUC, C. J.

it was Haney who, by his letter of the 14th October, 1903, Judgment. persuaded Parker to sign the re-transfer of the lot to Robinson. It was in Haney's office and by his clerk that the notice of cancellation was written. Everything of any moment in the course of these dealings, concerning either Robinson or Parker, seems to have been done by Haney. It was shown that Haney had been Robinson's solicitor in years past and is his solicitor in a suit now pending in Court. He has also been Parker's solicitor during several years. And yet Robinson swore that, in this particular transaction, Haney had not been his solicitor at all, that he had no instructions whatever to act as his solicitor. Haney swears the same thing. He did all that without being retained or instructed by either Robinson or Parker. He did not make any charge against either of them for his services. Parker swears also that he did not employ Haney as his solicitor in the matter. Haney explained that by saying that Robinson has rendered him some services and he reciprocated. He also expected some benefit in the result of the transaction. This may serve to explain why he was not paid for his services, but it does not show conclusively that professional work done by a solicitor is not to be considered as solicitor's work because no charge is made for it, and that a solicitor so acting is conveniently divested of any responsibility attaching thereto. My opinion is that the contrary is the true doctrine.

I think I should state here, as to Robinson's testimony, that, by his demeanour in the witness box, by the wanton way he answered the questions put to him by counsel, I felt that no reliance whatever could be given to his evidence.

Robinson's object in disowning Haney as his solicitor is obvious. Haney knew on what representation, on what terms and on what undertaking, as to seeing the

1904.

DUBUC, C. J.

plaintiff protected, he had obtained the assignment of Mr. Hough's interest in the land. If Robinson could be Judgment. shown to have been ignorant of the terms and of that undertaking, his conduct would appear less reprehensible. But, in the first place, notwithstanding their endeavours to convey the impression that Robinson was not informed. by Haney of the circumstances surrounding the transaction, I am satisfied that he was made aware of them, because he had in his hands the agreement for sale when he made the memorandum for the notice of cancellation; in the second place, I must hold on the evidence that Haney was acting as Robinson's solicitor in the matter, and that what was knowledge to Haney must be considered knowledge to Robinson.

Robinson says that he went several times during the summer to the plaintiff's place, and told him to come and see him in Winnipeg. He says he went after he had obtained the assignment from Hough, and before he gave the notice of cancellation. I have great doubts as to whether he did so or not. But supposing he did, he spoke to him in English while the plaintiff is a German, knowing very little of the English language. Robinson did not tell him that he had acquired Hough's interest in the land, or that he was the owner of the lot; he did not ask him to pay the interest due or any part of the purchase price, he just told him, if his testimony is to be believed, to come to see him in Winnipeg. And this, if the plaintiff had understood it, could hardly have any meaning for him. Feeling secure as to his relation with Mr. Hough who had sold him the land, why should he attach any importance, or even take notice of a stranger who wanted to see him in Winnipeg without even intimating to him for what purpose? If Robinson had been acting in good faith or with any honest intent, it would have been easy to have an interpreter and let the plaintiff know

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