acre in cash and informed de- his authority, procures a person fendant by letter. Defendant to enter into an agreement with replied accepting the offer, but his principals for the purchase asking plaintiff to call on S., and of land will be personally liable arrange regarding commission, to the intending purchaser for SO as to avoid having to pay damages in an action for specimore than one commission. fic performance against himself. Plaintiff did not communicate and his principals, if they afterwith S., but introduced his pur- wards repudiate the agreement chaser to defendant's solicitor in and prove that the agent had no Winnipeg. This purchaser paid authority to bind them. the solicitor $500 on account, and was ready and willing to pay the balance on receipt of a transfer. Meantime S. also made a sale of the farm at the same price. This latter sale was carried through by defendant, who paid S. the usual commission. Held, that the plaintiff was also entitled to his commission. as he had done all that was necessary to earn it. The title to the property was in defendant's father and plaintiff knew that; but defendant held a power of attorney to sell and convey it, and the Court held that the defendant's statements to the plaintiff, both verbally and in letters, and his conduct throughout, justified the plaintiff in looking to defendant alone for his commission. Collen v. Wright, (1857) 8 E. & B. 647; Halbot v. Lens, [1901] 1 Ch. 344, and Starkey v. Bank of England, [1903] A.C. 114, followed. tiff is entitled not only to the ex(2) In such a case, the plainpenses actually incurred but also have made if the bargain had to the loss of the profit he would been carried out. 3. Purchase of shares on margin-Sale by broker without notice -Acquiescence.]-Defendant instructed plaintiffs' manager at Winnipeg to purchase for him, on a margin of 3 per cent., Held, following Story 72 100 shares of Erie Railway Agency, pp. 306, 309, and Jones stock. Plaintiffs, through their v. Littledale, (1837) 7 A. & E. agents, bought the shares on the 490, that the defendant was per- New York Stock Exchange, and sonally liable for the commis- the agents thereafter held them sion.-Bell v. Rokeby..... 327 subject to the control and order 2. Misrepresentation of auth- of the plaintiffs. Defendant was ority of agent-Liability for informed within an hour of the Measure of damages-Specific purchase and the price paid. performance.]-(1) An agent The next day he received the who, by misrepresentation of, usual advice note of the trans action, in which it was stated as the defendant, not having objected to these terms, must be taken, after a reasonable time, to have assented to them.-Van 222 that on all marginal business the plaintiffs reserved the right to close transactions when margins are running out without further Dusen-Harrington Co. v. Mornotice. Two weeks afterwards ton the price of the shares began to fall, and the margin became so small that the manager telegraphed defendant at Gladstone to send $500 additional margin; sells goods to the agent of an 4. Undisclosed principal-Payment to agent, when a discharge to principal.]-A person who undisclosed principal, believing and later on the same day, the margin being entirely lost, he the agent to be the principal, telegraphed defendant to put up may sue the principal on discov$1,000 further margin. Defen- ery of the facts, and the princidant replied to these tele- pal will not be discharged from grams: "Will attend message, liability by having made paydown to-morrow." The man- ment to the agent before such express notice discovery, unless the conduct of that he would sell the shares the seller has been such as to unless the margins demanded make it unjust for him to call were put up, but waited until upon the principal for payment, delivery of the mail from Glad or unless the character of the stone the next morning, business is such as naturally to lead the principal to suppose Then, not having heard from defendant, he telegraphed that the seller would give credit ager gave no to have the shares sold, which was done at a loss of $1,150. to the agent alone. Irvine v. Watson, (1879) 5 Q.B.D. 102; Heald V. Kenworthy, (1855) 10 Ex. 739; Pollock on Contracts, D. 104, and Broom's Common Law, p. 585, followed.-Arbuthnot v. Dupas Held, (1) There was an actual purchase of the shares for the defendant, and it was not necessary that the shares should have been actually transferred on the books of the railway company, either to the defendant or to the See SPECIFIC PERFORMANCE, 1. plaintiffs. (2) There was an actual sale of the shares regularly made on defendant's account, according to the usages of the stock-broking business. (3) The plaintiffs were entitled, under the terms of the notice sent to defendant, to sell the shares without notice to him, when the margin was exhausted. 634 PRIVILEGED COMMUNICA TIONS. See PRACTICE, 4. PRIVILEGED DOCUMENTS. See PRACTICE, 3. PRODUCTION OF DOCU MENTS. See PRACTICE, 4, 7. PROHIBITION. See MUNICIPALITY, 1. PROMISSORY NOTE. PUBLIC PARKS ACT. R.S.M. 1902, c. 141, ss. 39, 43, 44-Municipal Act, R. S. M. 1902, c. 116, ss. 755, 769-Entry by Parks Board on land prior to expropriation-Powers of Parks Board-Right of action-Arbitration Injunction—Construction of statutes.]-Section 755 of the Municipal Act R. S. M. 1902, c. 116, giving power to the council of a city to acquire by purchase or expropriate land for park purposes, read together with section 769, does not authorize the council to en consent of the owner, without first taking steps to expropriate the land and obtain an award of arbitrators and paying the amount awarded for compensation to the County Court Clerk. Consideration-Partial failure of consideration.]-The defen- ter upon the land, without the dants bought cattle from the plaintiff, gave her the promissory notes sued on for the price and took and kept the cattle, all parties believing that the plaintiff had an absolute title to them. It was subsequently ascertained that the plaintiff had only a life interest in the cattle. After learning this fact, defendants paid year's interest on the notes and neither returned nor offered to return the cattle. Held, that defendants were liable on the notes, as there was no fraud and no total failure of consideration. They were bound to repudiate the transaction at once on learning of the defect in plaintiff's title, if they wished to object, and must by their conduct be held to have elected, with knowledge of the facts, to affirm their purchases.-Primeau v. Mouchelin, Primeau v. Pontel .... 360 See FRAUDULENT CONVEYANCE. 2 Section 44 of the Public Parks Act, R.S.M. 1902, c. 141, giving the Parks Board of a town all the powers of the council under the Municipal Act in regard to all expropriations of lands and property deemed necessary to be taken or entered upon for the purposes of a park, does not warrant the Board in entering upon land, or doing anything to injuriously affect it, without the consent of the owner, until after they have regularly expropriated and paid for the property; and a person whose land has been thus entered upon or injuriously affected has a right of action for damages against the Parks Board, and is not restricted to the remedy by arbitration under RAILWAYS. the expropriation and arbitration clauses of the Municipal Act. 1. Loss of wheat shipped by North Shore Railway Co. v. railway-Railway Act, 1888, s. Pion, (1889) 14 A. C. 612; 246, s-s. 3-Weights and MeaParkdale v. West, (1887) 12 A. sures Act, R. S. C., c. 104, s. 21 C. 602, and Arthur v. G.T.R.-Manitoba Grain Act, 1900 Co., (1895) 25 O.R. 40, fol- (D), c. 39, s. lowed. 9-Indorsement of bill of lading.]-(1) When 3 Statutes which encroach it clearly appears that the loss upon the rights of the subject in of goods shipped by railway respect of his private property, must have been caused by the or which enable public corpora- negligence or omission of the tions to take his property with railway company or its servants, out his consent, must be conthe company is precluded by strued with the greatest strict- sub-section 3 of section 246 of ness: Maxwell on Statutes, 399; the Railway Act, 1888, from Dillon on Mun. Corp., s. 603, et bill of lading exempting it from relying on a condition of the liability for any deficiency in weight or measurement. seq. 4 When a trespass is being continued and substantial damage is being caused, the Court will generally interfere to restrain the further commission of the trespass, and may grant a mandatory injunction. Kerr on Injunctions, 84, 114; 249 McMillan v. G. T. R., (1889) 16 S. C. R. 543, followed. a (2) The certificate of weighmaster under section 9 of The Manitoba Grain Act, 1900, being only prima facie evidence of the weight of grain in a car, may be rebutted. of (3) The indorsement of a bill lading to a bank for collection, though it passes the property in the goods, does not prevent the shipper from bringing an action in respect of the PURCHASE FOR VALUE WITH- loss of the goods, if he still has OUT NOTICE. See BREACH OF TRUST. an interest in them. Leggett on Bills of Lading. 626; Brill v. G. T. R., (1880) See SPECIFIC PERFORMANCE, 2. 20 U. C. C. P. 440, and G. W. PURCHASE OF SHARES ON MARGIN. See PRINCIPAL AND AGent, 3. Ry. Co. v. Bagge, (1885) 15 Q. (4) Section 21 of the Weights and Measures Act, R. S. C., c. 104, does not apply to a contract for carrying wheat by the carload, although the num- from which she suffered great ber of bushels in the car had weakness for a considerable been ascertained by bag mea- time. Plaintiff did not know at the time she jumped that there was a platform at the station. surement. Manitoba Electric & Gas Co. v. Gerrie, (1887) 4 M. R. 210. Held. (1) The defendants and Macdonald V. Corrigal, were liable in damages for the (1893) 9 M. R. 284, dis injury suffered by plaintiff, as tinguished.-Ferris v. Canadian the conductor had been guilty Northern Railway Co. .... 134 cf negligence. 2. Negligence-Passenger Quebec Central Ry. v. Lortie, alighting from train where no (1893) 22 S. C. R. 236, and platform Obligation to inform Curry v. C. P. R.. (1889) 17 O. conductor of physical condi- R. 65, distinguished. tion.]-If there is a platform at (2) The plaintiff was not a railway station, the railway bound to disclose her pregnancy company is bound to bring the to the conductor, so that he passenger car of a train stopping might know that special care there up to the platform to per- was necessary in aiding her to mit passengers to step down on alight. it in alighting, or to provide McGinney v. C P. R., (1890) some other safe means for passen- 7 M. R. 151, distinguished.gers to alight. Guay v. Canadian Northern Robson v. N. E. Railway Co. Railway Company 275 (1876) 2 Q. B. D. 85, followed. The plaintiff was a passenger 3. Obligation to fence right of on one of defendants' trains. way-Railway Act, 1903, s. 199, On stopping at the stations-s. 3.]—(1) Under section 199 where she wished to get off, of the Railway Act, 1903, a the train was left so that the railway company is required to car in which the plaintiff was erect and maintain fences suitstood entirely behind the station able and sufficient to prevent platform. The conductor hav- cattle from getting on ing offered plaintiff his hand to railroad from adjoining land assist her in alighting, she took which is cultivated and settled it and jumped to the ground. on, although not inclosed. three feet down. The ground (2) The words "not improved at that point sloped slightly or settled, and inclosed," in downwards from the track and sub-section 3 of that section, was slippery with snow or ice. describing lands in respect of The plaintiff received serious which the the company is not injury in consequence of the required to fence, should either. jump. She was two months be construed to mean "not advanced in pregnancy, was improved and not enclosed, or very unwell for the next six not settled and not inclosed," or days and then had a miscarriage, should be read with the comma the |