Krolik v. Curry

Grant, J. (after stating the facts). By the judicature act of the Ontario legislative assembly of 1881, it was enacted: “ The high court of justice and the court of appeal respectively, in the exercise of the jurisdiction vested in them by this act in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely, or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever, as any of the parties thereto may appear to be entitled to, in respect of any and every legal or equitable claim properly brought forward by them respectively [221] in such cause or matter; so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided.” 1 Rev. Stat. 1887, chap. 44, § 52, subd. 12. The rules adopted by the Canadian court provide: “ Every statement of .claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief. And the same rule shall apply to any counterclaim made, or relief claimed by the defendant, in his statement of defense. If the plaintiff’s claim be for discovery only the statement of claim shall show it. * * * “All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, and, without any amendment, judgment may be given against one or more of the defendants, according to their respective liabilities.” The plaintiffs planted their suit in Canada under the above act and rules of pleading. They deliberately asked two remedies: (1) The rescission of the contract; and (2), if they were not entitled to rescission, damages for fraud alleged to have been practiced upon them by the agents of the corporation. The corporation through its officers, the appellees in this suit, specifically denied the fraud and misrepresentations, and asserted a counterclaim for the amount due under the contract, and asked judgment for that amount. All the issues that are now made were there deliberately made by the plaintiffs. AlPthe issues were decided against them. Not content with the decision of the trial court, they appealed to the appellate court, and in their statement of claim, which, under the practice in Canadian courts, they were required to make, they deliberately alleged error, both in the failure to grant the rescission of the contract, or, in the alternative, to give damages for the fraud, if they were denied rescission. This, therefore, is not a case of mistaking a remedy. It is rather a case where the plaintiffs seek to try anew [222] the same issues that were tried in the Canadian court. Where a litigant has chosen to proceed against the agents of a corporation for misconduct on their part and has been defeated, he is thereby barred from litigating the same cause of action against the principal. Emma Silver Mining Co. (Limited) v. Emma Silver Mining Co. of New York, 7 Fed. 401. It follows that a determination of the issue in a suit brought against the principal bars an action against the agents. Emery v. Fowler, 39 Me. 329. After the affirmance of the judgment in the appellate court the plaintiffs'settled the entire controversy. They were relieved from the payment of a large part of the judgment against them, and reconveyed the property to the corporation. That settlement was made with and through the appellees, Anderson and Curry, as the duly authorized officers' of the corporation. McMath, who is charged with making the false representations as to value, was the accredited agent of the corporation to effect the sale. We agree with the finding of the Canadian court that there was no false representation as to value. Plaintiffs bought the land for speculation. They bought during a “boom,” when values were at the highest point. They soon after contracted to sell some of the lots for $6,950. They were sold upon a contract, and, with the fall of the boom, prices went down, and most of the lots reverted to them. They would have realized a very large profit on these lots, in some cases 100 per cent. It is not claimed that Anderson and Curry made any representations or authorized McMath to make any representations as to the value. The court was right in holding that the representations were simply expressions of opinion. Counsel for the plaintiffs seek to make the fraud in this case a deceit, and therefore claim that the corporation would not be liable in an action for deceit. The true test is: Was the fraud or deceit (the name is immaterial) practiced by the agent one for which the princi [223] pal is liable ? If the agent acts within the scope of his authority and his principal accepts the benefits derived from the misrepresentations, the principal is liable, and both may be joined in the same action, or each may be sued separately. In the case of Wilson v. Hotchkiss, 2 Ont. L. R. 261, the court says: “ The case established is the ordinary one of principal and agent, and there is nothing to take it out of the general rule that the master or principal is answerable for every such wrong of his servant or agent, as is committed in the course of his service or for his master’s or principal’s benefit, or, to speak more accurately, for his master or principal, though no express command or privy be proved.” See, also, Mackay v. Commercial Bank of New Brunswick, L. R. 5 P. C. 394; Citizens’ Life-Assurance Co. v. Brown, A. C. (1904) 428; Frankenburg v. Horseless Carriage Co., L. R. 44 Q. B. Div. 504; Ontario Industrial Loan & Investment Co. v. Lindsay, 4 Ont. R. 473; 10 Cyc. p. 1207; 2 Current Law, pp. 6008. It follows that the entire issue in this case was settled against the plaintiffs by the judgment of the Canadian court, and is res adjudicata. It also follows that the settlement with the corporation was also a settlement with these defendants. The judgment is affirmed. McAlvay, C. J., and Carpenter, Blair, and Montgomery, JJ., concurred.