1922 PERDUE, straight course outside the east rail of the east car track at a Judgment. speed of about nine miles an hour. A few feet to the right of the Purity Company's truck and a short distance ahead of it, the deceased was riding on a bicycle. The distance in a straight line between the last-mentioned truck and the bicycle at this time is given by two independent witnesses as about twenty feet. On approaching the Purity Company's truck, the Dray Company's driver turned to the right in order to cut in ahead of the other. Scott, the driver of the Purity Company's truck, states that he saw the other truck as it came alongside of him, that the other driver as he turned in struck with his right hind wheel the hub of the left front wheel of the Purity Company's truck turning it to the right, that the blow knocked him, Scott, off his balance, affected the steering gear and sent his car in the direction of Edwards. The result was that the Purity Company's truck collided with Edwards' bicycle, over-ran it and dragged it and the rider about twenty feet until the truck was stopped by a pile of gravel near the curb of the street. Edwards received such injuries that he died two days after the accident. From the evidence of the witnesses who saw the accident it is clear that the Dray Company's driver was negligent in cutting in as he did ahead of the other truck. But it seems clear that the Purity Company's driver when he saw the other truck passing him, could have avoided the collision by turning his car a few inches to the right or by lessening its speed even in a slight degree. Instead of doing so he kept straight ahead at the same speed. In excuse of this conduct he states that Edwards was close by on his right and that he could not swerve the truck in that direction. But the evidence of other witnesses shows that the deceased was eight or nine feet to the right of the Purity truck when the two trucks collided. The learned trial Judge delivered a very full and carefully considered charge to the jury. The question that is really involved in these appeals both defendants have appealed separately-is whether they are jointly liable for causing the injury, or, if not, which of them is to be held responsible. The trial Judge instructed the jury as to what would constitute joint responsibility for the accident and as to the care the jury must exercise in considering the actions and conduct of the two truck-drivers in order to determine whether they were jointly blameable or whether the injury to the deceased was caused by the negligence of one or other of them only. The question of joint liability of two defendants in an action founded on negligence was considered by the Supreme Court of Canada in Bartlett v. Wpg. Elec. Ry. & C.N.R., 59 S.C.R. 352, [1920] 1 W.W.R. 95. In that case one Bartlett sued both companies for causing the death of his wife by negligent operation of their cars. A street car had stopped at a railway crossing as a train was approaching. When the latter was seventy-five or a hundred feet away the motorman, without a signal from the conductor and in direct breach of orders, started to cross the railway. When half way over the power was increased and the car went forward with a jerk. Two women at the rear end of the car either jumped off or were thrown off and falling on the diamond were killed by the train. This Court held the electric railway company liable for the negligence which caused the injury: See Bartlett v. Wpg. Elec. Ry. & C.N.R., 29 Man. R. 91, [1918] 3 W.W.R. 483, 23 Can. Ry. Cas. 381. On appeal to the Supreme Court of Canada the majority of that Court held the Canadian Northern Railway Company was jointly liable with the other defendant. Mr. Justice Duff was of opinion that the negligence of the Electric Railway Company was not seriously open to dispute. As to the Canadian Northern Railway Company he said at pp. 366-367 (59 S.C.R.): The obligation to take care, default in respect of which constituted the negligence charged, was an obligation due to the passengers in the car, and that being so, the respondent company is responsible for harm suffered by them in consequence of its default to the extent at all events to which the damages are not, in the language of the law, too remote. Mr. Justice Anglin said at pp. 372-373 (58 S.C.R.): The negligence of both defendants conduced to the death of the plaintiff's wife. Had that of either been absent the lamentable tragedy would not have occurred. 1922 Judgment. PERDUE, C.J.M. 1922 Mr. Justice Mignault was also of the opinion that the plainJudgment. tiff was entitled to recover damages against both defendants as being jointly liable for the accident. PERDUE, The learned Judge's charge to the jury, in the present case, sufficiently instructed the jury on the question of the liability of both or either of the defendants. The jury found both defendants guilty of negligence and returned a verdict against both. I see no sufficient ground for interfering with the verdict. Both appeals must be dismissed with costs. 1922 Appeals dismissed with costs. COURT OF APPEAL BALLS V. MCGREGOR Before PERDUE, C.J.M., CAMERON, FULLERTON, DENNISTOUN and Agency-Sale of Land-Right to Commission-Owner Not Carrying Out Sale-Sale to Soldier Settlement Board Prior to Soldier Settlement Act, 1919, Ch. 71. Sec. 61 of The Soldier Settlement Act, 1919, ch. 71, held not to affect the right to a commission on a sale of land which was effected prior to the Act coming into force. Defendant was held liable to plaintiff for an agreed commission for a sale of land procured by plaintiff and which was not carried out because of defendant's refusal, without sufficient reason, to carry it out. Judgment of Galt, J. affirmed. ARGUED 23rd June, 1922. DECIDED: 10th July, 1922. Appeal by defendant from a judgment of Galt, J. in favour of the plaintiff in an action for the recovery of commission on a sale of land. Appeal dismissed. The judgment of Galt, J. was as follows: 29th March, 1922. GALT, J.-Action by a real-estate agent for commission. The plaintiff alleges that on or about June 7, 1919, the defendant was the owner of the west half of sec. 29, tp. 12, rge. 12, west of the principal meridian in Manitoba, and being desirous of disposing of the said land employed the plaintiff to find a purchaser. The plaintiff says in his evidence that the defendant called upon him and discussed the question of selling the said land and the defendant gave to the plaintiff the following document: Starbuck, Man., G. H. Balls, Esq., Dear Sir: Winnipeg, Man. In consideration of the sum of Óne dollar, receipt of which is hereby acknowledged, I hereby give you an option on the West 1⁄2 of 29-12-12, West 1st, as follows: I will sell the N.W. 4 at $3,750 cash, and the S.W. 4 at $3,250 on half crop payments, providing the purchaser will break and crop 25 acres each year until 125 acres are under cultivation, with one-half crop payable to me or towards wiping off the amount due under agreement for sale under which this land was purchased by me. All monies obtained over and above the above prices are to be retained by you for your commission. If I desire to cancel this option I hereby agree to give you thirty days notice in writing. Yours truly, [Sgd.] WALLACE MCGREGOR. The plaintiff proceeded to find a purchaser or purchasers for the two quarter sections and on June 16, 1919, the plaintiff procured the following document signed by J. Buchanan: G. H. Balls, Esq., Dear Sir: 849 Somerset Block, Winnipeg. I hereby make application to purchase the N.W. 4 of 29-12-12, W. 1st at $4,000 cash, through the Soldiers' Settlement Scheme, and I also make application to purchase the S.W. 4 of 29-12-12, W. 1st, at the price of $4,000, making a cash payment of $200 cash and agreeing to pay $500 on or before November 1st, 1919; I also agree to break and crop at least 25 acres of new land each year until 125 acres altogether are under crop, 1922 1922 Judgment. one-half of the crop off which land is to go towards interest first at 8 per cent. and then the balance to be applied toward reducing the principal until the whole of purchase price is paid in full. The sale of the north-west quarter was completely carried out and the $4,000 paid in cash. The sale of the south-west quarter fell through as the defendant changed his mind and decided not to carry it out. I must deal with the two transactions separately as the law applicable to them is different. So far as regards the north-west quarter the defendant relies upon sec. 61 of The Soldier Settlement Act, Dominion Statutes 1919, ch. 71, which was assented to and came into force on July 7, 1919. That section contains the following provisions: 61. (1) No person, firm or corporation shall be entitled to charge or to collect as against or from any other person, firm or corporation any fee or commission or advance of price for services rendered in the sale of any land to the Board, whether for the finding or introducing of a buyer or otherwise. (2) No person, firm or corporation shall pay to any other person, firm or corporation any such fee or commission or advance of price for any such services. (3) The Board may require of any person, firm or corporation from whom it purchases land, or who is in any manner interested therein, the execution of an affidavit in Form E in the Schedule to this Act. (4) If any such fee or commission or advance of price is paid by or to any such person, firm or corporation for any such services the following consequences shall ensue. (a) any person who in any affidavit made as required under subsection three of this section wilfully and knowingly states an untruth or suppresses the truth with respect to any matter which, pursuant to such subsection, he is required by way of such affidavit to make disclosure, shall be guilty of an indictable offence and be liable to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding five years, or to both such fine and such imprisonment; and, (b) the fee or commission or advance in price paid may be recovered by the Board, by suit instituted in the name of the Board as agent of His Majesty, in any court having jurisdiction in debt to the amount involved, whether the transaction was one with respect to a sale or projected sale to the Board, as if such amount were a debt due to the Board, as aforesaid, and every person who participated in the receipt of any part of such amount shall be liable to pay to the Board the part of such amount actually received by him; |