admitting certain questions objected to by defendant. The invariable practice of the Court was only to entertain a motion to revise a ruling where the ruling excluded testimony. Where the ruling admitted the testimony, the course of the party opposing the admission was to make a motion at the final hearing to revise the ruling. Motion rejected. (17 J., p. 67; 5 R. L., p., 480.) MOUSSEAU & DAVID, for plaintiff. AVOCAT--RETENUE. COUR SUPÉRIEURE, Montréal, 31 décembre 1873. Coram: JOHNSON, J. MOUSSEAU et al., Demandeurs, vs PICARD et al., Défendeurs, et LAUZON, Intervenant. Jugé :-Qu'un avocat à qui son client a promis une retenue, en considération des services qu'il attend de lui dans la cause qu'il a intenté, n'a pas le droit de recouvrer en justice le montant de cette retenue, en sus de ses honoraires, si l'action est réglée avant retour. The plaintiffs are attorneys practising in Montreal. The defendants are, first, Mad. Lauzon, married since the institution of the action to the intervening party, who merely comes before the Court, to authorize her defence, and, secondly, Michel Laforce. Mad. Lauzon, before she was married to her present husband, and in the name she then bore, of Mad. Picard, widow, on the 27th February, 1871, employed plaintiffs to institute an action on her behalf against Laforce, who was her brother-in-law, for recovery of $4000 damages, for an aggravated assault; and, on that day, the action was instituted, and made returnable on the 18th March following; the client promising plaintiffs a fee of $100, they to act for her, and advance the necessary disbursements. The defendant, Laforce, instead of appearing to the action, went with his sister-in-law before a notary, on the 3rd of March, where an acte was executed between them, in which plaintiff in that case declared that there was no foundation for her action, and that she had given instructions to have it instituted under feelings of anger and vengeance, while Laforce, on his part, in consideration of this acknowledgment and his discharge from all liability, undertook to pay the attorneys all the costs and disbursements (tous les frais et déboursés) TOME XXII. 32 up to that time. The present plaintiffs, therefore, bring their action against their client, and also against Laforce, alleging that this discharge was fraudulent and collusive, and got up to cheat them out of their costs, and that both the parties to that transaction are, jointly and severally, liable to pay to them the $100 fee; and $25.50 as for taxable costs. The defendants plead separately; but, in the same manner; and, first, they plead a demurrer to that part of the action which seeks to recover the fee of $100, which is, by the declaration, described as a retainer (retenue). This demurrer was dismissed, no reasons are given; but it must have been because the averments of the declaration included one of an express promise to pay. I should not be prepared to say that an action for a retainer will lie. I am aware of what are called the cases on this point here; but probably they will be found to be inuch like the present one, not claiming a right to recover what in its nature must be prepaid or not paid at all; but making use of a wrong name to describe a thing entirely different from a retainer. (For an immense amount of learning on this subject, see the case of Baldwin vs Montgomerie, U. C. R. 1844; and Kennedy s Brown, Eng. Jurist 1863). The undertaking of Mad. Picard with her attorneys is in writing; and an undertaking in writing to remunerate for services to be rendered (which this writing plainly is) whether it is miscalled a retainer or not, can clearly be recovered on; and, as against Mad. Picard, of course this writing must have its proper effect, whatever its terms may be found to be; and, as against the other defendant, the allegations of fraud, if borne out in fact, as well as an express allegation that he had offered to pay the whole sum claimed, would of course sustain the action if proved. But the defendants also plead a peremptory exception, admitting that Mad. Picard employed the plaintiff's as her attorneys in the suit against Laforce, but denying their liability, under the circumstances, to the extent sought for; and offer $25.50 for costs before return. There are then only two questions to look at: 1st. The extent of the female defendant's liability, under her written obligation; 2nd. The question of liability of the other defendant under the facts alleged. As regards the first point, this woman promises to pay Mousseau and David $100, in consideration of the services she expects from them in the case which she has instituted. These are the words. I at once admit that the professions in the settlement between her and her brotherin-law, that she was actuated by vengeance, and had no case, are, as between the parties to that settlement, conclusive, but, as regards the plaintiffs, all these professions whether true or false, do not prove that the instructions were not given. If true, they would only prove that she had deceived her attorneys; if false, that she had instructed them rightly; in either case, her liability to them would be the same. There fore, as regards her, we have only to look at what she undertook to do. The word "retainer," which does not seem to be understood, need not mislead us. She undertakes to pay for services to be rendered. None were rendered beyond the declaration, writ and service; no evidence; no argument; none of the services for which extra payment is usually made. I must, therefore, maintain the plea, and dismiss the actions with costs. These offers were made by the male defendant before action brought, and are repeated by the plea, which supersedes the consideration of whether the undertaking between Laforce and Mad. Picard constitutes any privity of contract between him and the plaintiffs. (5 R. L., p. 480) MOUSSEAU & DAVID, for plaintiffs. BROKER'S SALE--EVIDENCE. SUPERIOR COURT, Montreal, 21st June, 1872. Coram MACKAY, J. LUSK et al., vs HOPE et al. Held-1st. That the writing required by art. 1235 of the Civil Code to be signed by the party sought to be bound, is held to be so signed, in the case of a contract of bargain and sale of goods, evidenced by the bought and sold notes, signed by the broker who negotiates the sales. 2nd. That the broker may prove, by parol evidence, his authority to act for the parties, and that the retention by the parties of the contract notes so signed is evidence of the authority of the broker to bind them in the form therein stated. This was an action to recover $1060, as damages, for breach of a contract of bargain and sale. The contract was alleged in the declaration to have been negotiated and completed between plaintiffs and defendants, through the intervention of Porteous, a broker, acting as their mutual agent, and by bought and sold notes signed by the broker and delivered to the parties respectively. The defendants, by their pleas, denied that any such contract as that alleged had ever been perfected, and alleged that Porteous was in reality the broker of plaintiffs, in the transaction in question, and had no authority to act for or bind defendants. With their declaration, plaintiffs produced their bought note, and with their pleas defendants produced the sold note. At enquête, Porteous attested that he had authority from defendants to make the contract in question, and was, in reality, employed by them, in the first instance, to effect the sale of the iron mentioned in the contract, instead of being originally employed by plaintiffs, as alleged in the pleas. At the hearing on the merits, Terrill, for defendants, contended (inter alia), that, according to the terins of article 1235 of the Civil Code, the contract, in a case like the present, required to be actually signed by defendants themselves; that this provision of the Code was really an amendment of the Statute of Frauds, which allowed of the contract being signed by the agent of the party sought to be bound; and that it was not competent for Porteous, under any circumstances, to prove his authority to bind plaintiffs, by parol evidence. BETHUNE, Q. C., for plaintiffs, argued, that the absence of the words "or his agent," in the article of the Code referred to, made no difference, and did not prevent the party sought to be bound from being so bound by the act of his agent, otherwise the Court must hold, that the universally recognised rule of law, qui facit per alium facit per se," has been abrogated; that, moreover, the Legislature, in omitting those words, never intended, in reality, to amend the existing law, as is apparent by the reference in the Commissioners Report to the Cons. Stat. of L. C., ch. 67, sec. 8, and to the Statute of Frauds itself, and to the remarks of the Commissioners, wherein they state that the only change in the existing law which they suggested was the substitution of $50 for the £10 stg., mentioned in the Statute of Frauds. He further argued that art. 1735 of the Code distinctly recognizes the office of broker, as that of a person "who exercises the trade and calling of negotiating between parties the business of buying and selling," and declares that he may be the mandatary of both parties, and bind both by his acts, in the business for which he is engaged by them." Then, as to the legality of the parol evidence of the broker, as to his authority to act for and bind the defendants, there could be no question, in a commercial case such as the present. And, at all events, the retention by defendants of the sold note, and its production by them with their pleas, were conclusive evidence of the authority of the broker to bind defendants. "The Court, having heard the parties, as well upon the motion of defendants, to reject certain portions of the evidence of Thomas Porteous, a witness examined on behalf of plaintiffs, as on the merits: First, passing on defendants' motion, rejects it, with costs: then, on the merits; Consi dering that plaintiffs have proved their material allegations against defendants, to wit, the sale alleged, defendants' refusal to deliver the iron bought by plaintiffs, though put en demeure, and the damages alleged, and that defendants' allegations have not been proved, but many of the more important of them have been disproved, for instance, the one denying that the broker had authority, the one alleging that, on the sold note being delivered to defendants, they refused to accept it, the one alleging an agreement between defendants and the broker, that the former were not to be prejudiced by the sold note being left with them, and finally, the one denying that a sale was, on 31st January; Considering that defendants' retention of the sold note referred to, instead of repudiating it and returning it to the broker Porteous, is against defendants' pretensions contained in their pleas; Considering that defendants' letter of 1st February to plaintiffs ought to have repudiated unqualifiedly the sale alleged and the broker's authority to bind defendants by it, if the broker had no authority, but did not do so; and that this circumstance, with the parol proofs of record, are also against defendants' pretensions contained in their pleas; Considering that, on the 31st January, 1872, defendants sold to plaintiffs, five hundred and thirty tons of pig iron, at $29 a ton, payable as alleged in plaintiffs' declaration; that defendants were, afterwards, duly put en demeure, by plaintiffs, to deliver said iron, plaintiffs expressing readiness to fulfil their obligations, as vendees under said sale, but defendants unjustly refused to deliver said iron according to the terms of said sale; that, under the circumstances, defendants are liable by law, particularly by art. 1073 Code Civil, in damages towards plaintiffs, to wit, in damages which the Court liquidates and fixes at $1060, the sum sued for; doth condemn defendants, jointly and severally, to pay and satisfy to plaintiffs the said sum of $1060, with interest thereou from this day, and costs of suit. (17 J., p. 19) BETHUNE & BETHUNE, for plaintiffs. ABBOTT, TAIT & WOTHERSPOON, for defendants. |