IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I |iO """^ «?^ IIM '" m ' 1^ 11^ zo 1.8 1.25 1.4 1.6 6" ► V <^ /; c%. <$*■ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 L ' CT OO a j B aj> aj; ■ It ti ^wm, lli&itl tl Mi%lli ^Imlli^ ANDREW WELCH and ROBERT PATERSON RITHET carrying on basiness as Welch, Rithet and Company, and JOHN ADAIR, Janicr, lately carrying on business as Adair and Company, on Fraser River, and JOSEPH DESPARD PEMBERTON. (By original action) The said ANDREW WELCH and ROBERT PATERSON RITHET, Plaintiffs, Afpillants, AND ^^■&=SS=^S^S'-. WILLIAM BUTLER ADAIR, Plaintiff, Respondbnt. AND The said WILLLA.M BUTLER ADAIR, Dkfbndant, Respondent. (Bt Counter Claim) CASE ON APPEAL. Messrs. DRAKE, JACKSON & HELMCKEN, Sulicitors for Appellants. Messrs. DAVIE k POOLEY, Solicitors for Respondents. THEODORE DAVIE, Esq., Solicitor for Defendant, Adair & Company. HUNBOE HIIiLER. PUMTSB, BOOKBtMmB AMD PAFCB BDI.BB. noToau. »^ =^^ » ^ 4 li IM '^m^mK imi %l MM €%l«ial^ BUTWKEN WILLIAM BUTLER ADAIR, Plaintiff, Respondknt. AND ANDltEW WELCH and ROBERT TATERSON RITHET carrying on business as Welcli, Rithet and Company, and JOUN ADAIR, Junior, lately carrying on business as Adair and Company, on Fraser River, and JOSEPH DESPARD PEMBERTON. (By original action) 10 And Between The said ANDREW AVELCH and ROBERT PATERSON RITHET, Plaintiffs, Appbllants, AND The Haid WILLIAM BUTLER ADAIR, Defendant, Respondent. (By Counter Claim) CASE ON APPEAL. Messrs. DRAKE, JACKSON & HELMCKEN, Solicitors for Appellants. Messrs. DAVIE & POOLEY, Solicitors for Respondents. THEODORE DAVIE, Esq., Solicitor for Defendant, Adair & Company. 20 MUNUOE MILLKK, PRINTER, BOOKBINDER AND PAPER RDLBB. VICTORIA. INDEX. i'AOK. Statement of Case 8 Stutoineiit of Claim 6 Statement of Defence of Counterclaim of Defen»lunt8 Welch and Kithet 9 Statemen t of Reply 13 Statement of Defence of Pemberton 14 Statement ot Reply Thereto 14 Order Granting Injunction 15 Order Dissolving Injunction if, Mr. Bales' Report m Order for trial jh Order to take Accounts between Welch, Ritliet & Co. and Adair & Co jg Decree of 9th June, 1885 10 Reasons ot Chief Justice Therefor 19 Copy Mortgage Deed 2nd March, 1882 22 Order Binding Welch, Ritbet & Co to Accounts first Delivered 26 Master's lieport 26 Notice of Motion Theron 27 Questions of the Chief Justice to Mr. Bales 27 Mr. Bales' Answer Thereto 28 Decree on Further Directions 29 Exhibit 1 30 Exhibit 5 "' 31 Exhibit 10 ; 32 Letter B 32 Reasons of the Chief Justice for Decree on Further Directions 82 Notice of Appeal 37 199455 8 In the Supreme Court of British Columbia. Uktwkkn WIMJAM HUTLEU ADAIU, Plaintiff, Kespondent. AND ANliUKVV VVKI.UHand liOBKKT PAT^:RSO^^ R[TIIKT, carrying on business U8 Welch, Kitliet and Company, and JOHN ADAIIi, Junior, lately carrying on business as Adair and Company, ou Fraaor River, and JOSKPU DESPARD PEMliERTON. Dkfkndants, Appellants, 10 (By original action.) And Bktwebn Tiie said ANDREW WELCH and ROBERT PATERSON RITIIET, Plaintiffs, Appellants, AND . The said WILLIAM BUTLER ADAIR, Defendant, Rbbponuent. (By Counter Claim.) This is an appeal by the defendants, Andrew Welch and Robert Paterson Rithet, to the Full Court from a Judgment of the Honorable the Chiet Justice, pronounced the 20 1st day of December, 1886 in favor of the Plaintift'. statement. The writ of Summons in this actioi was issued ou the 30th September, 1884, and is endorsed as follows: — . " The Plaintiff's claim is for an account to be taken of all transactions between the said •'Welch, Rithet and Company, and Adair and Company, of Eraser River, fish cannerg •between the year 1881 and 1881. For an injunction to restrain the said Welch, Rithet *'and Company, from carrying out a sale of lots 54, 56, 56, 57, Group IL, New West. 80 "minster District, advertised to take place ou Saturday October 4th, 1884, under the "power of Sale in an alleg-^d Mortgage made by the Plaintiff in favor of the said Welch, "Rithet and Company, and dated 2nd of March, 1882, until the aforesaid acoounts have "been taken by this Honourable Court, and for such further or other relief as the nature "of the case may require." The miiiH* Sulicitor uuttMi tor both |iurtic8 iu the prepatvtioii and execution of the NfortKiiK*^« referred to in the said ondornenient. On tho HUth day of September ,1884, the Llouourable Mr. •fustice Crease, granted uii injunction, fr-/)ar/«, on Uespondunt's application, restraining the wid Hale until judg. nient or further order. The Ruapomlent deliv< r> d his Htateinont of claim on the2l8t November, 1884. Thu Appellants, Andronr Welch and Robert Patersou liitbet, delivced thoir statement of defence >, the 1 Hh December, 1884. The Respondent de!ivor> d hio reply on the 25th March, 188.5. Oil tho 26th Februiiv;, 1885, u Commission was issued directed to James A. Laidlaw 10 Kdq., British Vice Consul at Portland, to take the evidence of John Adair, Junior, on behalf of Kespondent. This commission was executed and duly returned. On the Slime day the learned Chief Justice, made an order referring the accounts between the appellants, and Adair & Co., tn Mr. J. C. Tiales, to re^tort ui>on, and the respondent refusing to bring into Court any money on account of ti.a money claimed to be due in re^i^ect of the said mortgage debt, or to give security and the appellants undertulcing not to eiitbrce the powers of sale under the Mortgage for 14 days from that date, the order of tho .SOth September, 1884 was dissolved. In pursuance of said order, Mr. fiales made his report on the 17tb March, 1885. 20 On the 27th March, 1885, the respondent obtained an order to amend the writ of sum- mons herein by adding .foseph Despard Pemberton as a defendant, and to amend hiv statement ot claim. The respondent amended his writ and statement of claim accordingly, and delivered his amended statement of claim on the 28th day of March, 1885. On the 26th March, 1885, the appellants obtained leave to amend their statement of defence by adding a counter-claim, which was delivered on the 27th April, 1885. On the 7th May, 1885, the respondent delivered his reply. Tlie defendant Pemberton delivered his statement of defence on the 11th day of April, 188 . and «;he respondent delivered his reply thereto on the 27th April, 1885. On the 22d May, 1885, the learned Chief Justice made an order for the trial of this 80 action to take place on the 1st June, 1885, before himself, without a jury. This action was tried before the Honorable the Chief Justice on the 1st June, 1885, who took time to consider his judgment. On the hearing the learned Chief Justice ordered the Registrar to take certain accounts between appellants and John Adair & Co* On the 9th June, 1885, the learned Chief Justice, in a written judgment, held that the respondent was entitled to redeem on payment of tho snm of 920,000 and interest, plus the further advances (not exceeding 925,000) in 1882, and interest from the date of each such . further advance. No appeal was taken bv either party from the said judgment. mmmm The iijipellunts, in piirsnnnce of the suitl order, broiiglit in their uccoimts. On tlic 'iOtli December, 188,S, the pluintift" obtained an order that in taking the ac_ counts herein, t}ie appellants should be bound by their accounts, delivered in the action and upon which Mr. (Jules made his report on the 17th .Nfarch, 1885, subject to the ap' jiellants' risrht to snrclr.irge and falsity the said accounts by the 29th January, 18«6. The time for surcharging and falsifying was on the 29th January, 188 », extended tor one week, but the appellants did not amend the accounts in any way. On the 7th May, 188(1, the Registrar rai.de his report showing a balance due to ap. pellants of 827,»>17.t>0. On the 2yth of June, 1886, the appellants moved before the Honorable, the Chief Justice for an order that .judgment may be entered herein 10 on their behalf for the amount due in the said report wliich motion was adjourned. On the f-th November, 1880, the adjourned motion was heard by way of motion for decree on further directions by the learned Chief Justice who, on the 1st Decem ber, 18^0, delivered a written judgment, finding that all moneys due, owing and secured under and by virtue ot the said Indenture of Mortgage of the 2nd of March, 1882 were fully paid and satisfied before the commencement of the action, and further declaring that the appellants thereupon became bare trustees for the respondent and by consent the further consideration of this action particularly as regards relief prayed against the defendant J. I). Pemberton was adjourned. This decree was settled by the court on the 20th January, 1887 and was served on 20 the 21st January, I8s7. On the 2tJth January, 1887 the appellants gave notice of appeal therefrom to the Full Court. The appellants contend that the said decree should be reversed on the grounds amongst others viz : I. That on further directions the court has no power to make an order which will have the effect of varying or impugning the original order in a material point. II. That the respondent was liable for the full amount due to the appel- lants not exceeding $20,000 plus 825,000 and interest. III. That the mortgage ofthe 2nd March, 1882 was an absolute mortgage and by the said deed all collateral securities were expressly reserved to the appellants. IV'. If the said mortgage was a guarantee it was a guarantee for $45,000, and was not subject to be reduced by the realization of collateral security. V. The appellants could not have been and were not guilty of any misrepresentation, as the same solicitor having acted for both parties to the transaction, notice to the solicitor was notice to the principal. 80 PLEADINGS. The i)Iea(liiig8 in the action aro as follows : — In the Supreme Court of British Columbia. Between Writ Issued 30th September, 1884. Writ Amended 28th March, 1885. WILLIAM BUTLER ADAIR, AND Plaintiff, ANDREW WELCH and ROBERT PATERSON KITHET, carrying on business as 10 Welch, Rithet & Company, and JOHN ADAIR, Junior, lately carrying on busi- ness as Adair & Company, on Frazer River, and JOSEPH DESPARD PEM- BERTON, Defendants. AMENDED STATEMENT OF CLAIM. Amended pursuant to order of Sir Matthew B. Begbie, dated 27th day of March, 1885. 1. The Piaintiftwas, until recently, a Fish Canner, carrying on business at Canoe Pass, on Fraser River. 2. The Defendants, Andrew Welch and Robert Paterson Rithet, are general Com- mission Merchants, carrying on business at the City of Victoria, British ColumWa. 20 3. The Defendant, John Adair, Junior, was formerly a Fish Canner at Canoe Pass, on Fraser River, but is now resident at the City of Portland, Oregon. 4. The Plaintiff is the owner in fee of Lots Fifly-five (55), Fifty-six (66), Fifty- seven (67), au i Fifty-four (54), except as to ten acres thereof, all in Group II, New Westminster District, and said to contain five hundred and ninety acres, (690) more or less. 5. Tiiat the said Andrew Welch and Robert Paterson Rithet, two of the above named Defendants, had certain dealings and transactions with, and made certain advan- ces to John Adair, Junior, trading as Adair & Company, Fish Canners, Fraser River, the other above named Defendants, in the year 1881. 80 0. That the said Adair & Company were largely indebted to the said Welch, Ititliet & C >in|>iui.v for siu.li advanuos, and were unable to pay the flame, us the fish then put n\< by thum ami forvvardeil to Eiiglaud by tlie said Welch, Ritlict & Ct-mpany were not sold. 7. That the said Welch, Rithot & Company were desirous ot obtaining security tor the advancca so made to Achiir & Compuiiy, and the said AiUiir & Company applied to the said IMainiiff to secure the sum of $20,000 00, then due by them to the said Welch, Rithot & Company, which the said Plaintiff agreed to do. 8. That the said Plaintitfdid on the second day ot March, 18*2, execute a Mort- gage upon the aforesaid Lots of land, in favor of the said Welch, Rithet & Company, to secure to them the said sum of $20,000, then due as aforesaid, and any further ad- 10 vances to l>e made by the said Welch, Rithet & Company to the said Adair & I mipany not to exceed in the whole the sum of $25,000, but for greater certainty the 1 laintitt" craves leave to refer to the Mortgage deed itself. 9. That on or about the 8th day of December, 1882, the said Welch, Rithet & Company rendered an account to the said Adair & Company, showing the said Adair & Company debtors to them on the catch of fish for the year 1881 in the sum of $18,920.53 with (5,000 cases of salmon still to be heard from. 10. Thatin the year 1882 the said Welch, Rithet & Company furnished the said Adair & Coni[)anv with an account of their indebtedness to them for the season of 1882, flhowint' that the balance due to the said Welch, Rithet & Company from the said Adair 20 & Companv, for advances over $4 per case against 20,308 cases salmon, was $18,758.73, (with 20,308 cases salmon, 1882 catch, no returns), showing a total liability from the said Adair & Company to the said Welch, Rithet & Company of $37,679.26. 11. That on or about the 8th day of December, 1882, the said Adair & Company paid the said Welch, Rithot & Company the sum of $3,653.00, and on or about the 28th February, 1883, the said Adair & Company made a further payment to the said Welch. Rithet & Company of $37,728.24, making in all the sum of $11,381.24, leaving a balance to the credit ot the said Adair & Company with the said Defendants, Welch, Rithet & Company, of $3,701.98, or thereabouts. 12. That on the 3rd day of March, 1883, the said Welch, Rithet & Company hon- 30 ored the draft of Adair & (Company upon them for the sum ot $2,500, still leaving a balance in their hands to the credit of Adair & Company ol $1,201.98, and on or about the 13th March, 1883, the said Adair & Company placed to their credit with the said Welch, Rithet & Company a sum of $500, and on or about the 17th day of March, 1883, a further sum of $350, making a balance to their credit with the said Welch, Rithet & Company of $2,051.98. 13. That the said Welch, Rithet & Company did not render any further statement of account to the said Adair & Company until on or about the 9th day of August, 1883, when they rendered an account shewing a balance due by Adair & Company to the said Welch, Rithet & Company on 1882 catch of $19,144.07, and a balance due ou 1881 40 catch of $26,570.26. 8 14. Tliiit the said Welch, liithet & (Jompariy have mnce furnished other accounts to the said A(hiir & Company showing a much larger indebtedness for the years 1881 and !!882,allotwhich said accounts are disputed by the said Adair & Company, and no settle- ment has yet been arrived at thereon between the said Welch, Rithet & Company and the said Adair & Company. 15. That the above named Plaintiff never executed any other mortgage on the aforesaid property to the said Welch, Rithet & Company to secure any other advances to Adair «& Company, other than those mentioned in the said mortgage of the 2nd March, 1882. It). That upon a proper acconnt being taken oi the transactions between the said 10 Adiiir & Company and the said Welch, Rithet & Company, it will be found that all the moneys as security for which the said mortgage of the 2nd March, 1882, was given have been fully paid off. 17. That the said Defendant, John Adair, Junior, who was carrying on the afore- said business under the name of Adair & Company, is residing at Portland, Oregon, be- yond the jurisdiction of this Honorable Court. 18. Since the commencement of this action, to wit, on or about the 17th day of March, l8Hh, the Defendants, Welch, Rithet & Company, wrongfully sold and conveyed to the Defendant Joseph Despard Pemberton, the said lands and premises for the alleged price of $20,000. 20 19. The said J. D. Pemberton made the said alleged purchase and took the con- veyance with full notice of this action and of the plaintiff's contention that the said juortgiige had been paid off. 20. The alleged price of $20,000 is far below the fair market value of the property, and such alleged sale was made without notice to the Plaintiff or his Solicitor, and without the consent of either of them, and was not made by public auction, or in a man- ner calculated to realize the best price. The Plaintiff claims: 1. That a full and complete account may be had and taken of all business trans- actions between the Defendants Adair & Company and Welch, Rithet & 30 Company, between the years 1881 and 1884. 2. That it may be declared that the said mortgage has been paid off, and that it be ordered that the Defendants, Welch, Rithet & Company, recouvey the said lands to the plaintiff freed and discharged from the said mortgage; to- gether with proper covenants that the lauds have not been encumbered. 3. That it may be declared that the alleged sale and conveyance to the said J. D. Pemberton is null and void, and that he be ordered to execute a conveyance of the said lands to the plaintiff. Ill 9 4. For Bucli ftirther or other relief as the uuture of the case may require. The Plaintitt" proposes that this action be tried at the City of Victoria. Delivered the 28th day ot March, 1885, by CHARLES E. POOLEY, Plain^'ft's Solicitor, Lttugley Street, Victoria, In the Supreme Court of British Columbia. Unmwopjf WILLIAM BUTLER ADAIR, Plaintiff, 10 AND ANDREW WELCH, ROBERT PATERSON RITHET, and JOHN ADAIR, Junior, and JOSEPH DESPARD PEMBERTON, Defendants. (By original action) And Between The said ANDREW WELCH and ROBERT PATERSON RITHET, Plaintiffs. AND The said WILLIAM BUTLER ADAIR, 20 Defendant. (By Counter Claim.) Amended by Order 26th March, 1885. STATEMENT OF DEFENCE AND COUNTER-CLAIM OP DEFENDANTS ANDREW WELCH AND ROBERT PATERSON RITHET. 1. The Defendant8,'Andrew Welch and Robert Paterson Rithet, were agents of the firm of Adair & Co., and in March, 1882, Adair & Company were indebted to ^". I 10 the Defeiulants in the sura of ?20,000 aud upwarda, lor which the Dofendants lield cer. tiiin collateral securitiefl, and in preparing for the fishing season of 1882 Adair and Co. required further advances, which the Defendants declined to make without further security. The Defendant, .John Adair, Junior, offered to give security over the land mentioned in Paragraph 4 of the Statement of Claim, with the exception of two pieces oi land, portion of Section 54, containing in all 26 acres. 2. The Dofendants conseuted to make to the firm of Adair & Co., such fur- ther advances as were required by them, on obtaining a mortgage as aforesaid, and ac- cDrdingly a mortgage, dated the 2nd March, 1882, was prepared and executed by the Plaintitt; but such further advances were not limited to the sum of $5,000, as alleged. lo 8. The Defendants did, from time to time, render accounts of the dealings and trauBactioHH between the Defendants and Adair & Co., and the amount due by Adair & Co. to the Defendants on the 30th of December, 1882, was $45,714.88, with interest, and not as alleged in Paragraph 10 of the Statement of Claim. 4. The Defendants made advances to Adair & Co. from time to time in con- nection with the cannery business, and full accounts were rendered to Adair & Co. and no exception was taken to said accounts, and the said accounts are correct, and do not contain any item improperly inserted, nor do they want any item which ought to be inserted. ft. On 80th April, 1884, a final account was rendered, showing a balance due to 20 the Defendants of ?27,G 17.63, of which amount ?7,617.63 with interest thereon, is still due from Adair & Co. to the Defendants. 6. The Defendants do not admit that the account of Adair & Co. was at any time in credit with the Defendants, there always was a balance against them, the total amount of which it was impossible to ascertain until all the accounts sales of salmon were returned. 7. The shipments of the said Adair & Co'.s salmon when reali'jed shewed a loss. 8. The Defendants deny that Adair & Co. ever disputed any accounts which was rendered by the Defendants, or raised any objection thereto, but on the contrary they admitted the correctness of the accounts, and expressed their regrets that the results 30 were so unsatisfactory owing to the market being so low for this class of goods. 9. The Defendants allege that the Plai c.i'is well aware of all the circumstances connected with the transactions of Adair & Co. with the Defendants. John Adair jr. was interested in the land the subject of the said mortgage. 10. The Defendantb deny that the Plaintiff is entitled to any accounts from the Defendants of the transactions of Adair & Co., lull accounts whereof hive been render- ed to that firm. • AND BY WAY OF COUNTER CLAIM the Defendants Andrew Welch and Robert Paterson Rithet say : ^ His' 11 Tho Deroii'laiit .loliii Ailiiir tnidinj; us Aduir and (!()iii|miiy was indobted to flicso !)e- fotiduiitH ill Muroli, IH'Sii, tor udvaiu'UH luudo in roHpout of tliocaiiniii^ opcratioiiH of Aduir k (Ju. uiidur tbu tormn uf uii ugreumeiit dated tliu liiMt day oi Fobruary uh follovvri : "Victoria, li. C, Int February, "MeHHrfl. Adair & Co., "Cuiioc I'ass, Frasor Uivor. "Dear Sirn : "We m)W state in writiiij; the terms npoii "which wo have arranged with you to aot as agents for your Cannery tor thu preaeut "season's catcli offish. 10 "We are to advance in cash the following suras : "Viz, In February, 3ii.OOO. Two thousand Dollars. " March, $1,000. One thousand Dollars. " April, 81,000. One thousand Dollars. " May, 81,000. One thou! "ped, to provide what material you may from time to time require in such quantity as "you may order basing your estimates for the same onan estimi'.tod season's catch of 15,- "000 cases, and to come under these advances to tlio extent of $2.5,000, previous to the 'JO "shipment of your catch. Alter shipment we are to advance, if required by you, a sum "equal to 75 per cent, of the market value of the salmon at the time of shipment not "exceeding under any circumstances $1 per cose. Interest on our advances is to be "charged from the due date of the same to time of shipment of the catch at (10) ten per "cent, per annum and alter shipment at the rate of (5) live per cent, per annum. Ship- "mcnts are to be made as soon as the fish are ready and as required by us. Our commis- "sion is to be (5) five per cent on the whole of your catch, which is to cover brokerage, "and we are authorized in making sale to guarantee the purchasers against *8well heads' "and all other defects as is usual, against which you are to fully indemnify us as cus- "tomary. Your fish are to be packed in full weight cans and every care is to be taken 30 "to make the fish a first-class merchantable article. The advances made previous to ship- "ment as above stipu.^01 !•'> $103,707 75 CR. 30 17 By iIiiiwlml7.G8. .1. c. b. The following in the order iua(h' for the trial of this action: 10 Style ofCau.se. Friday 22iid day of May, 1885. Upon hearing Mr. A. E. H. D.ivio on boliiilf of tlie PliiintifFnnd Mr. II. 1). Ilolnickon on heliall ot tiio DefiMidunts Wol<'li, Uitliet & Co., and .loseph L)e.s|)ard l'oiiiI)urton. I do order that the trial of thin action do t;iko place bclore mo at the Supremo Court Ilou-io .Fames Bay Victoria on Monday the Ist day of .rmio 1885, without a jury at 12 noon. (Signed ) M ATT. B. BEG B F E, C. J. In pursu mco of the siid order for trial herein the action came on for trial on the 1st Juiio 18-*;'), before the flouorablc the Chief .Ju-*tico who reserved hi.sjiKlgmoiit, and on the 20 hearing the learned Chief Justice made the following order as to uocounts between appellants and Adair & Co. (.STVI.K OF OAII.^E.) lyt June, 1885. Upon motion tliis day made by Mr. Charles F*]. Pooley, of Counsel for the I'laintifV, and upon hearing Mr. >F. W. T. i>rake, (I. C. on behalf of the FJ)efendants Welch, Itithet and Company, and Mr. Theodore Davie, of Counsel for the J)efendant .lohn Adair, Junior, I DO ORDER the Rcgisin'v of this FIonoral)Ie Court, do take an account of all monies due by the Defendant -John Adair, Junior, to the Defendants Welch, Rithet and Company, on the lat day of January, 18f^.3, on account of iii:y businoas transactions that qq may have taken place between them in the fish Canning business on Fraser River, as more fully set out in the pleadings in this action And Also to take an account of all moneys (if any) paid to the said Welch, Rithet and Company, Ijy the said John Adair Juuior, or on account of the sundries on the 1st day of January, 1883, (if any). And let the further consideration of this cause be adjourned; and any of the parties are to be at liberty to apply to this Court as they may be advised. " MATT. B. BEGBIE, C. J," W' lit On the 9th da}- of June 1885 made the following decree: — (Style of Cause.) Friday, the 9th day of June, A. I). 1885. This action coming on for trial the first day of June, A. D. 1885 before the Honor- able the Chief Justice without a jury, upon opening of the matter, upon hearing read the pleadings and the mortgage deed dated 2nd March, 1882, and upon hearing Mr. Pooley of counsel for plaintiff and Mr. Drake, Q. C of counsel for defendants other than the defendant John Adair and Mr. Theodore Davie of counsel for the said John Adair and what was alleged by counsel aforesaid This Court did order that this matter should stand for judgment, and this matter coming on this day tor judgment in presence 10 of counsel aforesaid, THIS COURT DOTH DECLARE that the plaintiff" on the accounts being taken between the defendants Adair & Co. and Welch, Rithet & Co. do pay to the defendants Welch, Rithet & Co. in respect of what shall be found due by the defendants Adair & Co. to the defendants Welch, Rithet & Co. a sum not exceeding $20,000. and interept at the rate of 10 per cent, per annum and the further advances made by the defendants Welch, Rithet & Co. to Adair & Co. in 1882 not exceeding however the sum of $25,000. and interest from the date of each such further advance at the rate aforesaid. And upon the plaintiff paying the defendants Welch, Rithet & Co. what shall be certified to remain due for principal and interest let the defendants Welch, Rithet & Co. reconvey to the plaintiff the lands in the pleadings mentioned. Reserve the question of costs. The further consideration hereof bo adjourned with liberty to all parties to apply as he or they may be advised. And this Court doth order and declare the same accordingly. By the Court (Signed) JAMES C. I'REVOST, R. 20 ;l. S. $1.00J [SealJ The following are the reasons of the Honorable the Chief Justice for such decree: — Tuesday, 9th June, 1886. JUDGMENT. The Honorable the Chief Justice. 80 The preliminary but very important question which at present arises to be decided is as to the amount of principal money in the whole secured by the mortgage of 2 jd March 1882, given by the Plaintiff to the Defendants. This question arises from an ambiguity in the recitals which are to govern the con- struction of the whole deed. The mortgage between the Plaintiff of the one part and the Defendants of the other part; Adair & Company not being parties thought they very properly might have "I • 20 been parties— The Plaint' ff thereby undertakes to be surety for advances by the De- fendants to Adair & Company. The question ia "what advances?" or rather "how much ?•' The recitals are as follows : — (I) Whereas Adair & Company" (Salmon Canners) "are indebted to (Defendants) in the sura of $20,000," advances. (II) And Whereas the said Adair & Company have applied to the said (Defendants) to make to them the said Adair & Company (such) further and other advances from time to time for the purpose of conducting their business aforesaid during the season of 1882 not exceeding however the sura of $25,000. (III.) (On this recital the question arises, Does this lirait apply to the whole advances j^q or only to the further and other advances ?) And Whereas the Defendants have agreed to make the advances aforesaid upon having the repayment thereof together with interest for the same respectively secured as hereinafter mentioned such security forming an additional security to the securities already held by Defend- ants." Then coraes the conveyance and then (IV.) The proviso for rederaption viz:— Provided . . . that if the mortgagor &c. shall on or before the 1st January 1883 pay to the said Defendants the sura of $J0,000, (with interest at 10 per cent.) AND also such further and other moneys if any as shall then be owing to Defendants by Adair & Ci)mpany on the security of these presents, then the mortgagees will reconvey— Adair & Company not being parties to the deed nothing can be owing by them on the security of 20 the deed — which is another oversight. Then come Covenants (V.) Covenant by mortgagor that he "will on the 1st January 1883, repay to the mortgagees &c. the sum of $20,000," (with interest at 10 per cent) and if not then will pay the interest thereon. (VI.) "And will also on demand repay to the mortgagee such sum or sums of money as shall or may hereafter be advanced by the said mortgagees to Adair & Com- pany," (wiih interest from date of advance.) (VII.) "And that until repayment of the principal moneys to be hereafter advanced by the mortgagees as aforesaid" with interest as aforesaid "the said principal moneys and interest shall be charged on the heredita- ments hereby granted in addition to the said sum of $20,000, and the interest thereon. (VIII.) The Power of Sale arises "in default of payment of any of the moneys and in- 30 terest hereby secured or any part thereof at the time hereby appointed for the payment thereof" then etc. It is noticeable that clause VI is quite unlimited and stipulates for the repayment by the mortgagor, of all future advances (i. e. beyond the $20,000) without any limit ot time, or amount. But the recitals govern the whole deed. The Plaintiff according to recital III has only agreed to guarantee "the advances aforesaid" i. e. the advances mentioned in (I) and (II), (viz.) $25,000 either in addition to or inclusive of the $20,000. After the best consideration I can give the matter, I incline to think that it is the " further and other advances" mentioned in II which are stipulated not to exceed $25,- 000, and that these notwithstanding the ungrammatical "such" are to be held to be distinct 4Q from the "advances" mentioned in I, which amounted to $20,000, so that the whole amount of principal moneys chargeable under the mortgage may be $45,000, if in feet $25,000 was advanced in 1882. 21 20 The limit "not exceeding the auna ol $25,000" 18 not recited aa the limit imposed hy the guarantor on the Qxtent to wliich he will be liable, but it ia a recital of the limit placed by the creditor and the principal debtor on the amount which the on« will be entitled to require and the other will be bound to supply. The arrangement for guaranteeing advances recited in (III) appeara to be made solely in consideration of future advances. The $20,000 had been already advanced before this guarantee was stipulated. The language used also shows this: it is not Defendants "agreed to make the advances aforesaid (which might include the $20,000)," but "have agreed to make the advances aforesaid" which seems more naturally to refer to future advances though it is a strange oversight not to have recited the agreement 10 to guarantee the $20,000 as well, which was clearly a main intention of the lenders. Having no guarantee lor that $20,000 they seem to have been partly induced to promise future advances in order to get a guarantee for the whole, which they did not then possess. The $20,000 therefore not being advanced on the security of thia deed, though correctly enough referred to as "advances" that sura seems to be excluded from the "advances" aforesaid in this recital III; and then going back to recital II it is the "advances aforesaid" thus understood which are not to exceed $25,000, so in the covenant to repay (V and VI) the $20,000 is kept quite distinct from the future advances, though it ia very difficult, perhaps dangerous, to place any relianca on the precise language and form in an instrument which contains so many serious errors and obscurities of sub- stance. For instance this same covenant No. VI is quite unHmited as to the amount and times of making the future advances covenanted to be repaid, and it undertakes to repay them on demand. Whereas on the whole deed it seems clear that it was only intended to guarantee future advances (1) made during the season of 1882, (2) not ex- ceeding $25,000, and (3) to be repaid on the 1st January, 1883. And this error is in strong contrast with the last previous error of importance (-iz)., that iu the proviso for reconveyance (No. IV) which is to be made on payment by the mortgagor to the mort- gagees of the sum of $20,000 and interest, and such other sums, if any, as may then be owing to the mortgagees by Adair and Company on the security of these presents i. e. nothing at all; since Adair and Company are not parties to the deed, and cannot possibly owe anything on the security of the deed. In the face of these grammatical an'^ other errors it is a very difficult matter to con- strue the deed at all, but on construction of the instrument iiself I incline to the above opinion. Then I should incline to the same view from the nature of the transaction itself. Adair & Co. are about to start in the season of 1882. They have no ready money, ou the contrary they are already under advances of $20,000 to their Agent for the ship- ments of 1881. They require fresh advances during the coming season. It is not like- ly that they would limit the statement of their probable wants to $5,000. And if that had been all they anticipated that they would require, they would probably have been able to procure accommodation to that extent upon their own ^olo credit. $25,000 seems a 40 much more reasonable sum that prudent owners would wish to provide ; and that is a sum which they probably could not under the circumstances, expect to provide without additional secarity besides their own. 30 28 The maxim "verba proforeutis," also points in the same direction. In Sea vs. MacLean I laid down the sense in which an ambiguous promise ought to be performed. "Where a promisee actually understands and believes a promise in a particular sense the promiser must perform it in that sense it the words of the promise and the surrounding circumstances so fur as known to the promisee justify a reasonable man in forming such belief." "If the words of the promise are susceptible of two interpretations, the promisee and not the promisor has, in general, the right to jhoose whichever he prefers." Here the Plaintiff makes a promise : I cannot say that the Defendants construction of it is unreasonable and thus if I am to adhere to my own rule of morals the Defendants TO are justified in claiming the limit of $45,000. Every one of these arguments may perhaps be turned the other way: e. g. as to the last topic it may be said that the mortgage being drafted by the mortgagee the languuge is bis. not the mortgagor's. But this is amere incident in the practice of conveyanct^rs and does not alter the fact that the promise to repay is the promise of the mortgagor. And so of the other grounds: none is beyond cavil, but I think on the whole I have correctly estimated their force and direction. « There will therefore be (subject to the questions arising under the exercise of the power of sale) a declaration that the Plaintift is entitled to redeem on payment of the 320,000 and interest plus the further advances (not exceeding ?2o,000,) in 1882 and in. _- terest from the date of each such further advance. The following is a copy of the mortgage deed dated 2nd I Jireh 1882: THIS INDENTURE made the second day of March, in the year of Our Lord one thousand eight hundred and eighty-two (A. D. 1882) BETWEEN William B. Adair of the County of Clatsop and State of Oregon, United States of America (hereinafter called the "said Mortgagor") of the one part, and Andrew Welch of San Francisco, State of California, United States of Ameri<^a. and Robert Pateraon Rithet, of Victoria, Province of British Columbia, trading at Victoria aforesaid under the firm name of Welch, Rithet & Company (hereinafter called "the said Mortgagees") of the other part, WHEREAS Adair & Company carry on business as packers and canners oi Salmon 30 on Eraser river, British Columbia, and are indebted to the said firm of Welch, Rithet & Company in the sum of twenty thousand dollars ($20,000,) for advances. AND WHEREAS the said Adair & Company have applied to the said Welch, Rithet & Company to make to them the said Adair & Company such further and other ad- vances from time to time for the purpose of conducting their business aforesaid during i 23 tho rtOiisoM ot tho your 18^2 not cxcoodiiig however tbo sum of Twenty.five thousand dollars («25,00(».) AND VVIIEUEAS the said Welch. Rithct & Company have agreed to make the ad- anccs at'orosaid ui)on having the re-payment thereof together with interest for the same Vi 20 respectively seunred to them i.i a mannerhereinafter mentioned fsuch security forming an additional security to the securities held hy the said Welch, Rithet & Company. NOW THIS INDENTURE WITNESSETH that in pursuance of tho said agree- ment and in consideration of the premises "tho said Mortgagor" doth hereby grant unto the said Mjrtgageos their hoirs and assigns, ALL those certain pieces or parcels of land ^^ liituate in the District of New Westminster, I'rovihue of British Columbia aforesaid, and on theotHcial map or plan ot said District known numbered and described as lots Fifty live (55) Fifty-six (5i)) Fitty -seven (57) and lot Fifty-four (54) except as to ten (10) acres thereof in the Nurtli West corner sold to John Adair, Junior, and further as to Fifteen (15) acres thereof l)eing a square piece of land in the North East corner, all in group Two (II) in the said District, TO HAVE AND TO HOLD the hereditaments hereby grant, ed or expressed so to be unto and to tlie use ot the said Mortgagees their heirs and as- signs forever subject to the Proviso for redemption hereinafter contained. PROVIDED ALWAYS and it is hereby agreed and declared that if the said Mortgagor his heirs executors administrators or assigns shall on or before the first (1st) day of January one thousand eight hundred and eighty-three (1883) pay to the said Mort. gagees their executors administrators or assigns the sum of Twenty thousand dollars (^20,000.) together with th« interest tor the same sum after the rate ot ten per cent per annum (10 p. a.) AND also such further &iv\ other moneys (if any) as shall then be owing to the said Welch, Rithet and Company b^ the said Adair & Company upon the se. curity of these presents, Then and in such case the said Mortgagees their heirs or assigns shall up)n the request and at the cost of the said M.M-tgagor his heirs or assigns recoavey the hereditaments and premises hereby granted or expressed so to be unto and to the use of the said Mortgagor his heirs or assigns or as he or they shall direct, AND the said Mortgagor doth hereby for hiniself his heirs executors and administrators covenant with the said Mortgagees their executors administrators and assigns that he the said Mortgagor his heirs executors or administrators will on the first dayof January one thou- sand'eight hundred niid eighty-three (1883) repay to the said Mortgagees their executors administrators or assigns the sum of Twenty thousand dollars ($20,000.) together with int3rest on the said sum after the rate of ten (10) per cent per anum as aforesaid, And if the said sum of twenty thousand dollars ($-20,000.) shall not be repaid on the said first (1st) day of Jaimary one thousand eight hundred and eighty-three (1883) then will pay to the said Mortgagees their executors administrators or assigns interest upon the said sum, or so much thereof as shall remain unpaid after the rate of ten ;10) per cent, per annum as aforesaid, such interest to be thenceforth paid monthly until the principal sura shall be fully repaid. And will also on demand repay to the said Mort- gagees their executors administrators or assigns such sum or sums of money as shall or may hereafter be advanced by the said Mortgagees to the said Adair & Company to- 4q gether with interest thereon at the rate often (10) per cent, per annum as aforesaid to be computed from the time or respective times of advancing the same, ^ND IT IS 30 24 HKRK13Y AUliKED AND DECLARED that until re-paymcntof tho principal moneys to bo heroiiftor udvunced by the Huid Mortgiigoes aa at'oreaaid with iiitcroat thereon after tho rate of ton (10) per cent, per annum as aforesaid the said principal moneys and interest shall be chartfed on tlie hereditaments and premises hereby granted or expressed so to be in addition to the said sum of Twenty Thousand dollars (^20,000) and the interest due thereon, And the said Mortgagor doth hereby for himself his heirs executors administrators covenant with the said Mortgagees their heirs andassigns that he tho said Mortgagor now hath good right to grant the hereditaments hereby granted or expressed so to be unto and to the use ofthe said Mortgagees their heirs and assigns in manner aforesaid tree from incumbrances And further that he the said Mort- gagor and all otiior persons having or lawfully or equitably claiming any estate or in- jq terest in the said hereditaments and premises or any part therccfshall and will from time to time and at all times hereafter at his or their own cost or expense during the continuance of this security, and afterwards at the cost or expense ofthe person or persons requiring the same make do and execute or cause to be done and executed all such actsdeeds a?id things lorfurther and more perfectly assuring the said hereditaments and premises unto and to tho use ofthe said Mortgagees their heirs and assigns in manner aforesaid as shall or may be reasonably required, AND IT IS HEREBY AGREED and declared thatin case defciult shall be made in payment of any of the moneys and interest hereby secured or any part thereof at the time hereby appointed for payment thereof then it shall be lawful for the said Mortgagees their executors administrators or assigns at any time or times without any further consent on the part ofthe said Mortgagor his heirs or assigns to sell the hereditaments and premises hereby granted or expressed so to be or any part or parts thereof either together or in lots and either by public auction or private contract and either with or without special conditions or stipulations relative to title or otherwise with power to buy in at sales thereof by auction, and to rescind contracts for sale and to roioU without being answerable for any loss or diminution in price, and with power also to execute assurances give effectual receipts for the purchase moneys, and to do all other acts and things for completing the sale which the said Mortgagees their executors ad- ministrators or assigns shall or may think proper, AND IT TS HEREBY AGREED AND DECLARED that the said Mortgagof " tneir executors administrutors or assigns shall with and out ofthe moneys to arise from any such sale or sales as afo/esaid, in the firet place repay and retain the costs and expenses attending such sale or sabs or other- wise incurred in relation to this security, Audin the next place repay aid satisfy all 30 moneys which shall or might then be owing upon the security of these pnsents. And shill pay the surplus (if any) to the said Mortgagor his heirs or assigns. PROVIDED ALWAYS and it is hereby declared that no purchaser or purchaserd upon any sale under the powers hereinbefore contained shall be bound or concerned to 800 or enquire whether any such default as aforesaid has boon made or otherwise as to the necessity or propriety of any such sale or sales. IN WITNESS WHEREOF the said parties to these presents have hereunto set their bands and seals the day and year first above written. 20 "WM. B. ADAIR (Seal). 40 2ft Signed, Hoalo.l and delivered by the within named William B. Adair in presence of .Tohn Davis. ,^. ^ , „ ., i /-» British Vice-Consulate, Portland, Oregon. To all to wliom these Presents shall come: I, James Laidlaw, British Vice-Consul, for Portland, Oregon, do hereby certify thr-t S. D. Adair whose signature and seal is attached to the annexed instrument is a Notary Public duly commissioned and practicing in Clatsop County, State of Oregon, to whoso acts lull faith and credit can bo given both in judicature and thereout.^ IN Testi- mony whereof I have hereunto set my hand and seal of office in Portland, this tenth day of Marcli, A. D. One thousand eight hundred and eighty-two. (Signed) JAMES LAIDLAW, British Vice-Consul. [Seal] (Endorsed.) ADA IK vs. WELCH, RITIIET & COMPANY. "LAND REGISTRY ORDINANCE, 1870." FOR MAKER OF A DEED. 10 I HEREBY CERTIFY that William B. Adair personally known to me, appeared before me and acknowledged to me that he is the person mentioned in the annexed In- strument as the maker thereof, and whose name is subscribed thereto as party that he knows the contents thereof, and that he executed the same voluntarily. 20 IN TESTIMONY whereof I have hereto set my Hand and Seal of Office, at Clat- sop County, State of Oregon, this Second day of March, in the year of Our Lord One Thousand eight hundred and eighty-two. ^^ "S. D. ADAIR, Notary Public, Clatsop County, State of Oregon. [Seal.] The appellants brought in their accounts, but on the 29th December, 1885 the respondent obtained the following order : — l! I 2G (Style of cause) Tuesday, 29th December, 1885. Upon hearing Mr. Pooley, on behalf of the Plaintiff", and Mr. Helmcken on behalf of the Defendants, Welch, Rithet & Company, I do order that in taking the accounts herein, the Defendants, Welch, Rithet & Company, shall be bound by their accounts already delivered in this action and upon which a report was made by Mr. J. C. Bales, on the 17th March, 1885, subject to the right of the said Defendants, Welch, Rithet & Company, to surcharge and falsify the said accounts on or before the 29th day of Jaimary, 1886. The time limited by this order for appellants to exchange or falsify was extended 10 for one week, but the appellants did not alter the accounts in any way. MATT. B. BEGBIE, C. J. MASTERS REPORT. (Style of Cause.) I, James C. Prevost, Registrar of the Supreme Court of British Columbia, hereby certify That, in pursuance oi the order made herein on the 25th day of February, 1885, I have taken the account-^ tiserein directed and find as follows: — The account hereunto annexed, marked "A", shows the general account of advances between Adair & Co. and Welch, Rithet & Co., up to the 30th December, 1883, and leaves a balance owing by Adair & Co. up to that date of $127,056,33. ^q The account "B" shows an account of further payments made by Welch, Rithet & Co., on account of Adair & Co., from the 1st of January, 1884, to the 80th April, 1884, showing a balance in favour of Adair & Co. of $99,438.70, and this amount, deducted from the previous debit balance, shows a debit against Adair & Co., of $27,617.63. And I further certify that the account hereunto annexed, marked "C", is a report made by J. C. Bales, by' direction of this Court, which I adopt, the dates and items not being disputed, and shows the separate account of the parts of the years 1881 and 1882, and that the sum of $26,.542 81 was due on the 30th December, 1882, for advanpcs to that date, and that the sum of $14,306.46 was the balance of advances over receipts from 27 January, 1882, to April 30th, 1884, and that the said balances were carried to the joorn- al account and were all repaid, except as to the sum of »27,617.63, as before mentioned. [Signed] JAMES 0. PREVOST, R. May 7th, 1886. The appellants served the following notice of motion :— (Style of cause.) Take notice that this Honorable Court will be moved before the Honorable the Honorable the C. J., on Tuesday the 29th day ot June instant, at the hour of 12 o'clock or so soon thereafter as Counsel can be heard by Mr. Drake Q. C. of Counsel for Defen- dants Andrew Welch and Robert Paterson Rithet on their behalf for an order that Judgment may be entered for the said Defendants for the amount found due by the Master's Report dated ^' y 7th A. D. 1886, and for such further and other rehef as the nature of the case requi. s. Dated June 23rd A. J)., 1886. Yours, etc., ROBERT EDWIN JACKSON, Solicitor for said Detendants. To Messrs. Davie and Pooley, Solicitors for Plaintift'. 10 80 This motion was on the 29th June, 1886 adjourned and came ap for argument by way of motion for decree on further directions on the 5th November, 1886 before the Chief Justice who reserved his judgment. Before the delivery of the judgment of the Ist December, 1886, the foUowmg ques- tions by the learned Chief Justice were by consent of counsel for both parties handed in 30 to Mr. J. C. Bales to be answered viz :— Further information on the following questions. QUESTIONS. 1. What was the whole amount due by Adair & Co. to Messrs. Welch, Rithet & Co. on the 2nd March, 1882 in respect of advances made by the latter firm to the former firm on the packs of 1881 ?—irre8pective.of any securities, consignments, etc., not at that date converted into money and received by Welch, Rithet & Co. 28 r ' " 2. Do the accounts, or the manner of keeping the accounts, indicate any diS'erence between advances made either in goods or cash at the cannery during the preparation of the pack, and the advance of $4 per case which I understand was made or allowed by Welch, Kithet & Co. to Adair & Co. so soon as any cases were actually put on ship board ? or are advances whether made before or after consignment, and whether made in order to enable the cases to bo prepared, or in consideration of the receipt and con- signment of the prepared cases, treated in the accounts on the same footing, and all covered by the same securities ? ANSWERS. The following are the answers returned thereto by the said Mr. J. C. Bales: Answer to question 1. The amount due by Adair & Co. to Welch, Rithet & Co. on pack of 1881 on 2ud March, 1882 was $92,607.81, but during the autumn of 1881 advances on salmon shipped amounting to $50,126. were credited to 1881 pack thus reducing the balance due on that pack to 942,481.81. Answer to question 2. The accounts show that all advances made in cash and merchandise during the pre- paration of a pack were charged against that pack, and as soon as the salmon was shipped the account was credited with 94 a case thus reducing the net balance owing to Welch, Bithet & Co. from time to time, and upon the final disposal of the salmon in England or elsewhere the account was debited with the loss if any or credited with the gain if any. The balances of the separate accounts were transferrrd to the general accounts marked C. (Signed) J. 0. BALES, Accountant 10 20 Thereupon the learned Chief Justice pronounced the following decree on further directions: — 29 In the Supreme Court of British Columbia. Between WILLIAM BUTLER ADAIR. Plaintiff. AND ANDREW WELCH and ROBERT PATERSON RITHET, carrying on business as Welch, Rithet and Company, and JOHN ADAIR, Junior, lately carrying on bnsiness as Adair and Company on Fraser River, and JOSEPH DESPARD PEMBERTON Defendants Wednesday, the First day of December, A. D. 1886. 10 THIS CAUSE coming on for further directions the 5th day of "November A. D. 188<> before this Court in the presence of Counsel for the Plaintiff and the Defendants Andrew Welch and Robert Paterson Ritbet and Joseph Despard Pe.nberton and no one appearing for the Defendant John Adair junior UPON READIN'i the pleadings and Indenture of mortgage bearing date the 2nd day of March 1882 made between the Plaintiff of the one part and the Defendants Andrew Welch and Robert Paterson Rithet of the other part — the mortgage from John Adair junior of part of Section 57 . Group II New W eatminster district to Andrew Welch and Robert Paterson Rithet dated the 2Gth day of March 1881— a certified copy of a Bill of S."le by way of mortgage dated the 6th day of April 1882 made between the Defendant John Adair junior and the Defendants Andrew Welch and Robert Paterson Rithet — a certified copy of a Bill of Sale by way of mortgage dated the Ist day of February 20 1881 made between the Defendant John Adair junior and the Defendants Andrew Welch and Robert Paterson Rithet.— A certified copy of a Bill of Sale dated the 2nd day of March 1883 made between Robert Paterson Rithet and Andrew Welch and John Adair junior to Thomas Elijah Ladner and Francis Pa^e— the reports of the Registrar and of Mr. Bales the Accountant — and such of the exhibits attached to the evidcice of John Adair junior taken at Portland on the 6th day of March 1885 by James Liiiiilaw, Esquire under a Commission issued out of this Honorable Court on the 27 th day of February 1885 as are marked exhibits 1,6, 10 and letter B. and all the accounts of Welch, Rithet and Company attached as exhibits to the said evidence — and upon hearing what was alleged by Counsel afore8>4id-this Court did order that this ciiu^e should stand for judgment and this action standing for Judgment this day in the paper in the presence of Counsel aforesaid THIS COURT DOTH ADJUDGE 30 AND DECLARE that all moneys due owing and secured ':nder and by virtue of the said Indenture of mortgage of the 2nd day of March 1882 were fully paid and satisfied 80 before the commencement of this action AND THIS COURT DOTII DECLARE THAT THE Defendants Robert Patcraon Rithet and Andrew Welch thereon became bare trustees for the Plaintiff William Butler Adair and this Court doth by consent direct that that the further consideration of the cause particularly as regards relief prayed against the Defendant Joseph Despard Pemberton be adjourned by consent and that the costs of the action be reserved and that the parties respectively may have liberty to apply as they may be advised. "MATT. B. BEGBIE, C. J." [Legal Stamps 60 cts.] 10 The following are copies of the said Exhibits 1, 5, 10 and Letter B : — EXHIBIT h Victoria, B. C, 1st February, Messrs. Adair & Co., Canoe Pass, Fraser Rivor. Dear Sirs: We now state in writing the tei.Tns upon which we have arranged with you to act as Agents lor your cannery for the yresont season's catch offish. We are to advance in cash the icllowing sums: — Viz. In February, $2000, Two thousand Dollars. «' March, $1000. One thousand Dollars. " April, $1000. One thousand Dollars. " May, $1000. One thousand Dollars. " June, $2000. Two thousand Dollars. to allow your present indebtedness to us to stand over until your salmon are shipped and provide what material you may from time to time require, in such quantity as you niay order basing your estimates for same on an estimated season's catch of 15,000 cases, and to come under thcbO advances to the extent of $25,000 previous to the ship- ment of your catch. Aliei shipment we are to advance, if required by you, a sum equal to 75 per cent, of the market value of the salmon at the time of shipment not exceeding under any circumstances $4 per case. Interest on our advances is to be charged from the due date of same to time of shipment of the catch at ten (10) per oen* per annum, and atter shipment 'at the rate of (5) live per cent, per annum. Shipments are to be made as soon as the fish are ready and as required by us. Our commission is to be (5) five percent, on the whole of your catch (which is to cover brokerage) and we are authorized in making sales to guarantee the purchasers against "swell heads" and all other defects as is usual against which jju are to fully indemnify us as customary. 20 80 81 Your fisli are to be packed in full weiglit cans, and every care is to be taken to make the fish a first-class merchantable article. The advances made previous to shipment, as above stipulated, are to be deducted irom, and considered part of the advance above referred to after shipment. As security for our advances you are to execute a mortgage and bill of sale in our fovor covering the cannery and all the plant and material therein, and to be supplied by us hereafter, and on the salmon as it is packed. (It is expressly agreed and understood that these advances are to be used exclusive- ly for the purposes for which they are intended and for no other.) On purchases of goods for your account, outside of our own stock, we are to be al- lowed a commission of (2J) two and a halt per cent. We remain, Bear Sirs, Yours Faithfully, WELCH, RITHET & CO. 10 Messrs. Welch, Rithet & Co., Victoria. Dear Sirs: We hereby confirm the above as the terms agreed on between us for the purposes therein named. ^ . ^t, „ z^,^ ADAIR & CO. 20 EXHIBIT NO. 5. Victoria, B. C, 8tb December, 1882. Messrs. Adair & Co., Canoe Pass. Dear Sirs: We hereby demand from you the payment of the following amounts:— Viz. Balance due on catch of season 1881, 018,920 68 Balance due on catch of season 1882, 18,758.73 $37,679.26 as per accounts rendered to date. ^ The above amounts are subject to change as the security held by us may be reahzed. gQ Your attention to the above payments before Monday next will oblige, Yours Faithfully, WELCH, RITHET & CO. l! If I 32 EXHIBIT No. 10. August, 7th 1883. Messrs. Welch, Rithet & Co., Victoria, B. C. Dear Sirs: In May last the writer requested you and Mr. Rithet to render us a statement of our account with your firm, and he promised to have it made up and forwarded shortly. We have, since, received no statement although several months have elapsed. Be good enough to let us have a statement of our account, as well as your latest advices as to condition of our salmon 1882 pack still in your hands, at your earliest convenience. And oblige, Yours Truly ADAIR & CO. 10 LETTER B. Messrs. Adair & Co., Ladner's Landing. Dear Sirs: Your favor of the 7th inst. is to hand, and wo now hand you all the accounts made up so far, relating to your transactions with us during last and previous years which have been prepared and ready for some time awaiting your call. We were under the impression these had been handed to you some time ago, but we understand the reason they were not is because you have not asked for them. We hope you will find them all in order. We remain, Dear Sirs, Yours Faithfully, WELCH, RITHET & CO. 20 JUDGMENT. The following are the reasons therefor of the Honorable the Chief Justice: — go December 1st, 1886. . The Chief Justice. It now becomes necessary, the accounts between the parties having been taken at considerable length, to determine on the validity of the Plaintiff's contention, that all the monies, the repayment of which from Adair & Co. to the Defendants waa guarau- 3 ;■} 1(:lmI In liim, liiivo hcoii ropiiid witli iiiterorft : either directly or l)y marshalling the other Hocurities iield by the Defendants and of which the Plaintiff claims the benefit. At the first hearing, atid as a preliminary to the taking of the accounts, I held that the Plaintiifs guarantee extended at least to two sums of ^20,000 and $2?,000 respectively, and wns not as the Piaintiifthen contended limited to $25,000 in all. This decision has been ac'