opinion that there is no ground for the argument that the defendants could not ratify the action of Bailey" (the carter) "in obtaining these goods. The question is whether they did. Now, ratification does not rest upon estoppel. It need not be communicated to the party alleging it. Ratification is a unilateral act of the will, namely, the approval after the event of the assumption of an authority which did not exist at the time. It may be expressed in words or implied from or involved in acts. . . I think that they did affirm that the goods were in their possession--in what character I will consider in a moment; but it seems to me they did affirm their possession, and this in a very unequivocal way, for they called upon the criminal law to punish Bailey on the footing of such possession for a crime which was different from his crime in fraudulently taking the goods from the plaintiffs' possession. . . But now arises the vital question: In what character did they adopt the possession. . . The position taken in the prosecution does not involve the ratification of the contract of carriage. The argument is in the last degree technical, and must be conclusive in every stage. It fails because possession in the circumstances can be affirmed without affirming possession as

carriers.

bailment.

All that the defendants necessarily ratified was a bare On this footing they cannot be made liable merely for non-delivery, but only for negligence or for some default on the part of a servant acting in the course of his employment. There is nothing of the sort. It must depend on the facts. Ratification has no bearing here. Its operation is exhausted when it is determined that Bailey's possession is to be regarded in law as the defendants' possession to the minimum extent required to satisfy the law of larceny. It does not put Bailey in the position of acting in

away with the goods, nor does it create for legal purposes a fictitious state of facts revealing negligence when there was none. These

unreal.

There might be a shorter answer to it, but, taking it as

put forward, I think it fails on analysis."

sion.

Broker-Selling own shares to customer-RescisIn Armstrong v. Jackson," McCardie, J., holds that where a broker, pretending to execute a mandate to buy shares in a certain company, sold shares in the company belonging to himself, without the knowledge or acquiescence of the customer, the sale might be rescinded at the suit of the latter, notwithstanding that the value of the shares had decreased in the mean

while.

He says (p. 824):

The law has ever required a high measure of good faith

from an agent. He departs from good faith when he secretly sells

42

[1917] 2 K. B. 822.

his own property to the principal. The rule has long been the same, both at law and equity. . . It matters not that the broker sells at the market price, or that he acts without intent to defraud. . . The prohibition of the law is absolute. It will not allow an agent to place himself in a situation which, under ordinary circumstances, would tempt a man to do that which is not the best for his principal. . . The Court will not enter into discussion as to the propriety of the price charged by the broker, nor is it material to inquire whether the principal has or has not suffered a loss."

In answer to the argument that the contract having been fully executed and carried out, there could not be rescission in absence of actual fraud proved against the defendant, McCardie, J., shows by the cases that this rule applies only to the simple case of vendor and purchaser, or lessor and lessee, where no question of fiduciary relation arises. He says (pp. 825-6):

"Where that relationship exists, the rule is infinitely stricter and more severe. The position of principal and agent gives rise to particular and onerous duties on the part of the agent, and the high standard of conduct required from him springs from the fiduciary relationship between his employer and himself. It is, I think, immaterial that the plaintiff in the present case took a transfer of the shares and became the registered holder thereof. Those facts do not impair his right to rescission."

He cites authority for this; and adds that, more

over,

"It is clear that the agent who secretly sells his own property to a principal is guilty of dishonesty; and it was said by Lord Eldon in Ex parte Dyster,5 that if a man "mixes in a transaction, in which he is ostensibly the broker, but really a buyer or seller, this is a gross fraud." . . If, however, a finding against the defendant of personal deceit be essential to the plaintiff's claim for rescission, then I regret to say that I feel no doubt that such a case has been established. A misrepresentation will be fraudulent if made with a knowledge of its falsity, even though the defendant may not actually intend to injure the plaintiff. . . Here the contract . . and the whole of the continuation notes and other documents were false. They were intended to deceive the plaintiff. They achieved that purpose."

As to the contention that rescission could not be decreed because circumstances had changed through lapse of time, the shares having very seriously fallen in value, the learned Judge overruled it, saying:

5 (1816) 1 Mer. 155, 175.

"The plaintiff still holds the shares he bought in 1910. He can hand them back to the defendant. The company is the same as in 1910. Its name only has been changed. The objects of the company have not changed though the assets of the company may have varied. The market value of the shares has greatly dropped, but the shares are the same shares. If mere deterioration of the subject-matter negatived the right to rescind, the doctrine of rescission would become a vain thing."

Lastly he says, citing several cases (p. 830):

"I may point out that mere lapse of time is no answer to a plea of rescission. . . In cases like the present, the right of the party defrauded is not affected by the mere lapse of time so long as he remains in ignorance of the fraud.

If, however,

he delays his claim to rescission until after the lapse of six years from his discovery of the fraud, then the Court will (apart from any other point) act by analogy to the Statute of Limitations and refuse to grant relief."

Negligence Common employment Volunteer with interest. It seems wrong to altogether pass by Hayward v. Drury Lane Theatre, Limited, but it may be sufficient to say that it was an action for damages for injuries received through the negligence of the defendants' servant under the following circumstances. The plaintiff, a principal dancer, attended rehearsals of a revue at the defendants' theatre. She was not under contract so to do, nor was she paid, but she attended in the hope of obtaining an employment for the run of the revue when it was ready for producAt one of the rehearsals she received an injury

tion.

through the negligence of one of the defendants' servants, while she was acting under the direction of the producer. The Court of Appeal hold that on the facts the jury rightly found that she was not a servant of the defendant; and further that she was not a mere Volunteer who could not be in a better position to recover damages from the defendants than their own servants, who would be debarred from so doing by the doctrine of common employment, but was a volunteer in a service in which she had a common interest with the defendants, and therefore that doctrine had application, and she was entitled to recover.

no

[1917] 2 K. B. 899.

Vendor and Purchaser Inability of Vendor to Obtain Release from Mortgage Damages. There seems no case requiring notice here in [1917] P. for December; but in [1917] 2 Ch. for December we have In re Daniel, Daniel v. Vassall,' a case raising the interesting question whether a purchaser of real estate towards whom his vendor has failed to perform his contract by reason of inability to obtain a release of the property by a mortgagee is entitled to general damages for loss of bargain, or is limited to the costs incurred in investigating title. The property agreed to be sold, was, with other property, subject to one mortgage; and the mortgagees refused to release it, while the executors of the vendor, who had died pending proof of title, had not enough funds of the estate for redemption of the mortgage. Sargant, J., held the purchasers entitled to general damages. He says (p. 410):

The question seems to me to be covered by the following passage in the judgment of Lord Hatherley in Bain v. Fothergill,8 namely, . . 'every vendor is bound by his contract, to do all that he could to complete the conveyance. Whenever it is a matter of conveyancing, and not a matter of title, it is the duty of the vendor to do everything that he is enabled to do by force of his own interest, and also by force of the interest of others whom he can compel to concur in the conveyance.' Here I think that the vendor could "complete the conveyance," and could compel the mortgagees to join in the convey. ance within the meaning of that passage; and that mere pecuniary inability to do so forms no better defence than it ordinarily does to a claim for a breach of contract."

He refused to allow the purchaser the costs of investigating the title as well as the damages (p. 412):

"for this reason, that the basis of the estimate of the loss is the difference between the value of the property if it had been conveyed to them in accordance with the contract and the price given for the property. . . If they had had the property conveyed to them, of course they would have had to incur all the expense of investigating the title that they did actually incur.

7 [1917] 2 Ch. 405.

8 L. R. 7 H. L. 158, 209.

Therefore it is impossible to give them that sum in addition to the sum by way of general damages."

CANADIAN DECISIONS.1

Principal and Agent Trustee for Sale-Conflict of Duty. There seems nothing specially calling for notice in 40 O. L. R. for January. In 37 D. L. R. for December, we may notice Stahl v. Miller in connection with the English case of Armstrong v. Jackson, noted supra p. 103. In Stahl v. Miller the British Columbia Court of Appeal hold that an agent employed to purchase land may bind his principal to a sale of land he was empowered to sell as trustee for another for a fixed price, McPhillips, J.A., dissenting.

Constitutional Law-Foreign Insurance Companies-Requirement of Dominion License. In accordance with whom seems clearly to have been the opinion. of the Judicial Committee in the Insurance Act case, Attorney-General for Canada v. Attorney-General for Alberta, the Alberta Supreme Court has, as reported in D. L. R. for January, decided in Farmers Mutual Hail Insurance Association v. Whittaker, that it is within the powers of the Dominion parliament, under 'regulation of trade and commerce,' and' aliens,' to prohibit foreign insurance companies carrying on business without a federal license even within the limits of a single province; and that sec. 4 of the Dominion Insurance Act, 1910, does this and is to that extent intra vires.

D. L. R. for January is the decision of Audette, J., in Patents-Invention. Another case reported in the the Exchequer Court of Canada, in Northern Shirt Co.

1 As most of our subscribers have ready access to the Canadian Reports, it is not deemed necessary to review the Canadian cases in interest and importance will, therefore, be noticed. same detail as the English. Only those which seem

the

237 D. L. R. 514.

3

[1916] 1 A. C. 588. 437 D. L. R. 705.

of special