1907. HOLMES v. JONES. Isaacs J. H. C. OF A. cattle, to buy on one of two distinct options regarding them. The report of Easy reaches him on 14th December. He has full time to consider the matter, and on 19th December he takes advantage of this offer and declares that he will buy, and takes further time to declare which of the two options he will select. On the 19th he declares he will purchase and makes up his mind to give £15,000 for property and stock, "walk in and walk out." It was urged on behalf of the plaintiffs that it did not appear that Mr. Easy had authority to receive information on behalf of Mr. Burgess regarding the number and ages of the cattle from Mr. Baker. I think that that is disposed of on the principle that an agent (he was clearly an agent for some purposes) has either the actual authority given him, or the authority within the apparent scope of his employment. Looking at it from the standpoint of the defendants, what would it have been natural for them to conclude as to the authority of Mr. Easy when he inspected? A person authorized to receive information may receive it through his eyes or his ears. Whether Mr. Easy communicated his information to his principals or not we do not know. We know that he communicated something on 14th December. Whether he communicated truthfully and fully all that he learnt we do not know, because the plaintiffs themselves did not put in or tender that evidence. But I take it to be immaterial from the defendants' standpoint whether he did or did not, and I think it was also within the defendants' power as a matter of law to oppose the admission of evidence showing that Easy had not communicated fully. There are two authorities bearing upon this part of the case. One is Tanham v. Nicholson (1), a case where service of a notice to quit at the house of a tenant upon a person whose duty it was to deliver it to the tenant, was held a good service on the tenant for the purposes of ejectment. The House of Lords held that the presumption was that the notice did reach the tenant, although in fact it was not delivered to him, and that the question was not whether the servant performed his duty but whether he was to be considered the agent for the purpose of delivering the notice. Lord Hatherley L.C. pointed out the principle; he said (2):-" If once you have constituted your servant (2) L.R. 5 H.L., 561, at p. 568. (1) L.R. 5 H.L., 561. When once 1907. HOLMER JONES. your agent for the purpose of receiving such a notice, the ques H. C. or A. tion of fact as to whether that servant has performed his duty or not, is not one which is any longer in controversy. you constitute your servant your agent for that general purpose, service on that agent is service on you-he represents you for that purpose-he is your alter ego, and service upon him becomes an effective service upon yourself." He had pointed out a little earlier that you cannot in such a case give evidence to prove that the notice had not in fact been served. The same principle was applied in a case of insurance agency, where it was proved that there was a distinct misrepresentation in the application which was the basis of the contract of insurance, the proposer having a defect which was obvious to the agent, who took the proposal. The misrepresentation was that the man had no physical defect, whereas he had only one eye. It was held that the agent must have known of it, and that the company was bein though the agent had not communicated it to them. That was the case of Bawden v. London. Edinburgh and Glurgon. Azzurunce Company 1. So that the principle is plain that if once a person constitutes another his agent to stand in his place, he taxen tim responsibility of that person doing his dang to six principai other party is not eoneemed vink that It was me regrad question that Mr. Easy bound M. Burgos and thectuer priorit by the knowledge he stalled in Desmo sem juut as much as if Mr. Barges had scraines se information ཉ,i,『he had, he could not have seen sari to a; upon the previous statement aque est rundy eat it pay 13 been. With regard to the damag be blation some “ly ná clear. The takes plummet » sự any earseń gespoora zen & tiver upon the point. I mail ny for was 76% the principle in wien Laage w 1907. HOLMES v. JONES. Isaacs J. H. C. OF A. the keynote, the alteration of the position he was in before the action of the defendant which caused him to act to his own detriment. In Edgington v. Fitzmaurice (1) Bowen L.J. said :— "But, lastly, when you have proved that the statement was false, you must further show that the plaintiff has acted upon it and has sustained damage by so doing: you must show that the statement was either the sole cause of the plaintiff's act, or materially contributed to his so acting." He referred to Clarke v. Dickson (2) as the case where that rule was laid down, in the words which I quoted during argument, that you have to show that real damage was caused by acting upon the fraudulent statement or representation. And in the case Hyde v. Bulmer (3), Bovill C.J. puts the rule thus:-" Although, since the case of Pasley v. Freeman (4) the law has been that the defendant's advantage is not a necessary ingredient in an action, there must be proof of loss on the plaintiff's part. Lord Kenyon C.J. in his judgment in that case, cites Croke J. fraud without damage, or damage without fraud, gives no cause of action; but where these two do occur, then an action lieth.' There must be damnum et injuria; and it seems to me that an action cannot lie at all without loss to the plaintiffs. In all cases of this kind the rule of pleading and of law is that the plaintiff must show in the declaration, and prove at the trial, that the representation of the defendant was false to his knowledge, that it was made under circumstances on which the plaintiff might reasonably act, that the plaintiff acted in consequence of the defendant's false representation, and lastly that the plaintiff has suffered actual loss." Now, how have the plaintiffs attempted to satisfy that last condition here? They say:-" We bought the station with stock and improvements for £15,000, and we were deceived by a statement that a certain number of the cattle were of certain ages, and if those cattle had been of that number and of those ages we would have been so much to the good; the property would have been worth £2,700 more to us than it actually was." I put this to counsel. Suppose, apart from warranty, the declaration had said that the defendants had fraudulently made a representation (1) 29 Ch. D., 459, at p. 482. (2) 6 C.B. (N.S.), 453. (3) 18 L.T.N.S., 293, at p. 295. 1907. HOLMES t. JONES. Isaacs J. as to the number of cattle on a certain property and thereby H. C. OF A. induced the plaintiffs to buy the property for £10,000 whereas the property was worth £20,000, but if the representation had been true the property would have been worth £30,000, could the plaintiffs succeed? Counsel said, Yes. That is quite foreign to my notions as to the nature of an action for deceit. It was attempted by the plaintiffs alternatively to show that there was evidence of the value of the property as a whole; that you take the contract and there you find a price fixed by the parties, and, assuming that to be a fair price for the property, you are then at liberty to say that if the representation had been true it would have been worth much more. But the fallacy of that is obvious. If you look for the price in the contract you look for the property in the contract, and the property in the contract does not include the property which is now being sued upon. Therefore, if you say that the property in the contract is sold at a fair price, that ends the matter. But if you wish to prove that the property in the contract was worth much less than the price paid, then to establish the damages sustained you must bring evidence to that effect. Therefore, it is perfectly consistent with the evidence given by the plaintiff's that they have suffered no loss, or even that they have made a good bargain. If they have, then they have not altered their position for the worse, and consequently have failed to maintain the three essentials in an action of deceit, namely, loss occasioned by action which they were induced to take by reason of the defendants' fraud. With regard to the question of evidence I agree with what has been already said. It seems to me that the section in question was intended to regulate the rule of law which enables a party, not to bring what I may call original evidence in support of his case, but evidence breaking down and discrediting a witness called by his opponent. It would be a singular thing if this class of evidence could be given by the defendant to contradict a witness of the plaintiff on the first part of the plaintiffs' case, and should not be open to him when the plaintiff calls a witness to rebut the case made by the defendant. The object of such evidence is, not to support the party's case, but to break down or H. C. OF A. of God:" Cuckson v. Stones (1); Smith, Master and Servant, 1907. NOONAN V. VICTORIAN SIONERS. Higgins J. 5th ed., pp. 122, 123, 159. The case of Loutes v. Maple (2) is A jockey, retained for three years, met with a serious accident which disabled him from riding at a raceRAILWAYS meeting; and he had not got his licence. The employer wrote to COMMIS- him that as he had not got his licence the agreement was at an end; and it was held the employer was not entitled to take this step. The other cases which I have seen, containing expressions to the effect that incapacity is proof of want of readiness and willingness, are not cases of illness-of the visitation of God-at all: Lawrence v. Knowles (3); De Medina v. Norman (4); Cort v. Ambergate &c. Railway Co. (5). But I do not rest my judgment on this point; I merely desire not to be regarded, by my silence, as necessarily accepting this part of the case put for the Commissioners. But let us suppose that the Commissioners can ignore the terms of the question asked in the special case, and rely on what took place before the letter of 31st December 1904, what then? There certainly was not any mutual agreement that the plaintiff should leave the service. There had been lengthy negotiations. The plaintiff had offered to retire as for infirmity of body, on the terms of getting a superannuation allowance under sec. 42 of the Act No. 160; but the offer had been refused. There was not any rescission of the contract of service by the Commissioners on the ground of the plaintiff's permanent incapacity owing to ill-health or bad eyesight. The plaintiff had urged his heart disease and nervous exhaustion as a ground for retirement on pension; but the railway authorities stubbornly insisted that he was fit for work. On 2nd November 1904, the plaintiff's chief officer wrote to him:-" In view of the condition of your eyesight the Commissioners are no longer prepared to employ you as an engine-driver but they are willing to utilise your services in the capacity of a skilled labourer ;" and the letter required him to report himself for duty as a skilled labourer on pain of having his services dispensed with. This letter contained no definitive words of removal from the (1) 1 El. & E., 248. (2) 88 L.T., 288. (3) 5 Bing. N.C., 399. (4) 9 M. & W., 820. |