March 29, 1919. The judgment of the Court was delivered by Cur, adv. vult. SIMMONS, J.-Plaintiff's action was to recover the sum of $322.22 on the ground that in the statement of liabilities assumed by the defendant under an agreement for purchase of plaintiff's store business including stock-in-trade and fixtures that by mistake this item had appeared twice, so that in the result the defendant actually assumed $322.22 less in liabilities than was intended under the agreement. The learned trial Judge found that there was a mistake in the computation of the liabilities assumed by the defendant as purchaser. He refused to grant relief by way of rectification. on the ground that the purchase was for a lump sum. He also held that although the plaintiff and one Kidney, who took part in the negotiations, had agreed that the formal agreement should be subject to rectification as to this amount if a mistake was substantiated, yet that the defendant had no knowledge of this reservation and that Kidney had no authority to make such a reservation on behalf of the defendant and therefore the defendant was in no way bound by it. Counsel at the argument asserted that the findings of the trial Judge on the ground of agency were incorrect and should be reversed. It was suggested by the Court during argument that even accepting the findings of the trial Judge, the plaintiff might be entitled to succeed if the amount of the liabilities which the purchaser assumed was a definite sum, and that if in this amount a sum had been added inadvertently which was not a liability, the defendant should not have the benefit of it. It is not necessary in this view of the case to deal with the findings of fact of the trial Judge upon the question of agency. The point raised at the argument before us was not suggested to him. I am of the opinion, however, that the plaintiff should sucreed on the ground of mutual mistake. It is true the mistake must be mutual. (Kerr on Fraud and Mistake, 4th ed., pp. 498-499.) And it is suggested that as 23-A.L.R. App. Div. 1919 Whitaker V. Rumble Simmons, J. App. Div. 1919 Whitaker Rumble the defendant knew nothing about the reservation that there It is quite clear however that there was a considerable amount of negotiation, and that the material questions were Simmons, J. the amount of stock on hand, the amount of the liabilities and the amount and value of the book debts. Both parties had in their mind an ascertained amount of the liabilities and negotiated on this basis. Towards the close of the negotiations the plaintiff discovered what he thought was a discrepancy as to this amount of $322.22 and discussed it with Kidney. The defendant was not a party to and had no knowledge of this discussion. The plaintiff then has in fact become a party to an agreement which is not affected in any way by the fact of the discussion between him and Kidney as to this discrepancy. It turns out that there was an actual mistake in the computations as a result of which the defendant assumes $322.22 less in liabilities than was intended by the parties to the contract. This in my view brings it quite within the purview of mutual mistake and the Court may grant equitable relief and in this case should do so. The defendant however cross-appeals as to three items in his counterclaim which were disallowed at trial, and which amounted to $82.71. It is pretty well established that these items are in the same class as the sum claimed in the statement of claim. The items do not appear in the schedule which is a part of the agreement in writing, but represented liabilities of the plaintiff which the defendant has paid. I would therefore allow the appeal and cross-appeal. In the result there will be judgment for the plaintiff for his claim and costs and judgment for the defendant for his counterclaim and costs. The plaintiff has succeeded on his appeal and the defendant has succeeded in his cross-appeal but the major amount has been recovered by the plaintiff. The plaintiff, appellant, should be allowed to tax all proper disbursements incurred in the appeal and two-thirds of the remaining taxable costs. Appeal and cross-appeal allowed. App. Div. 1919 Whitaker V. Rumble Emery, Newell, Ford & Lindsay, solicitors for plaintiff, Simmons. J. appellant. McKay, McDonald & Co., solicitors for defendant, respondent. [APPELLATE DIVISION] 1918 SMILES (Plaintiff) Respondent V. THE BOARD OF TRUSTEES OF EDMONTON SCHOOL Schools and School Districts-Injury to Pupil by Dangerous A pupil at a school under the control of the defendant board was injured Nov. 9 App. Div. 1918 Smiles V. Edmonton S.D. No. 7 machine; and the boy's intelligence was such as to acquaint him with the danger and the necessity of great care. Per Stuart, J., dissenting: The presence of the examiners did not abrogate the authority and duty of the board to look after the safety of its pupils, the board's teachers ought to have known that it would be unsafe for the plaintiff to use the machine and there was, under the circumstances, a duty upon them to tell him, before he entered upon the examination, that he must not attempt to use the saw, even if the examiners should ask him to do so, moreover the board was liable on the ground that it could, by some protection, have made the machine much safer than it was. The applicable principle on this point is that set out in the headnote to Shrimpton v. Hertfordshire County Council, 104 L.T. 145 (H.L.), and Smerkinich v. Newport Corporation, 76 J.P. 454, 10 L.G.R. 959 is distinguishable. An appeal by defendant from a judgment by Walsh, J. ([1918] 2 W.W.R. 586) in an action for damages for personal injuries alleged to have resulted from the negligence of he defendant. Appeal allowed with costs, Stuart, J. dissenting. The appeal was heard by HARVEY, C.J., STUART, BECK and H. H. Parlee, K.C., for defendant, appellant. November 9, 1918. Cur, adv. vult. HARVEY, C.J.-I would allow this appeal with costs and dismiss the action with costs. The trial Judge. finds, ([1918] 2 W.W.R. 586) as seems clear from the evidence, that the defendants were exercising no control or authority over the operations out of which the accident happened. I cannot see how they can be charged with negligence in permitting the use of the machinery which is clearly as suitable for the purposes for which it was being used as it was reasonably possible to obtain. Such machinery is by its nature dangerous and must be used with great care. If boys of 16 cannot exercise such care it may be that they should not use such machinery, but the defendants were not responsible for the plaintiff's using the machinery. App. Div. 1918 Smiles V. Edmonton S.D. No. 7 If he neglected the opportunities presented by the defendants to familiarize himself with its practical operation, I am at a loss to see why the defendants should be held liable because they did not prevent him from taking the examination, which they had no legal right to do, or because their instructors did not inform the examiners of the fact of which they Harvey, C.J. probably at the time ere unaware. Moreover if they had given such information, I fear that it would have made no difference. STUART, J. (dissenting)—My inclination in this case is to dismiss the appeal. With much deference I think too much has been made of the authority of the high school and university matriculation examinations board. Even if that body were a strictly subordinate branch of the department of education subject entirely to the control of the minister, which in fact it appears not to be, inasmuch as it is appointed, according to the evidence, jointly by the department of education and the university of Alberta, it does not seem to me that its authority was anything more than a purely examining authority. Treating it however as entirely subordinate to the department of education it appears to me that its functions were confined to the appointment of examiners which would include three classes: (1) Those setting the questions; (2) Those reading the answers; (3) Those presiding while the pupils of the various schools were engaged in answering the questions asked. To make examinations uniform throughout the province was no doubt one purpose of having a general board. But in effect the examiners simply entered the schools on certain days and asked the pupils certain questions. No doubt under The School Ordinance, C.O., ch. 75, the department had authority to send out its examiners to do this. But in my opinion this did by no means abrogate even temporarily the authority and duties of the various boards of trustees as these are set forth in secs. 95 and 95 (a) of The School Ordinance. A perusal of those sections will plainly show that it was the duty of the boards of trustees to look after the personal health and safety of the pupils attending the schools. I do not think that duty was even for a moment ever transferred to any other authority. |