1908 WESTERN TRUSTS CO. v. CANADIAN FIRE Co. Meredith, J.A. C. A. took the risk with a knowledge of the tenancy, and the alterations which were made were such as the Court considered within LONDON AND the rights of such tenant, and so beyond the control of the insured; and so that case is very obviously different from this case. On the other hand, in the case of Kuntz v. Niagara District Fire Insurance Co., 16 C.P. 573, relied upon by the defendants, INSURANCE the condition was that the policy should be avoided by any alteration or addition to the buildings insured, not notified to the company for approval; the controlling words of this case-"within the control or knowledge of the assured"-not being there used. Again, a very obviously different case. The few observations of Adam Wilson, J., in delivering the judgment of the Court, which seemed to give so much satisfaction to the appellants, and are quoted in their reasons for this appeal, do not aid them at all when due regard is had to the sentence ending with the words. "in case it was done without his consent or knowledge." But, if it were otherwise, cases are not to be determined in any court by mere observations made by the way. The question is whether the policy was avoided under the third statutory condition, indorsed upon it, and subject to which it is expressly, in the policy, as well as by virtue of the statute, made. That condition is in these words: "Any change material to the risk, and within the control or knowledge of the assured, shall avoid the policy as to the part affected thereby, unless the change is promptly notified in writing to the company or its local agent; and the company when so notified may return the premium for the unexpired period and cancel the policy, or may demand in writing an additional premium, which the assured shall, if he desires the continuance of the policy, forthwith pay to the company; and if he neglects to make such payment forthwith after receiving such demand, the policy shall be no longer in force." According to the only evidence upon the subject, adduced at the trial, some time after the making of the policy the property was let by the plaintiffs to a tenant for six months, and after such term the tenancy was renewed from month to month, at a reduced rent each month, for three months and until the fire occurred by which it was destroyed. The tenant did not occupy the property as a dwelling-house only, but, with a stock of goods of considerable value which he brought to and stored there and re C. A. 1908 WESTERN TRUSTS CO. v. CANADIAN INSURANCE Meredith, J.A plenished from time to time, he carried on the business of a merchant, who sold to pedlars only, such persons returning frequently to make their purchases, and residing, apparently, in the house LONDON AND until they departed with their purchases. The evidence for the defence shews that, in the introduction and carrying on of this business on the property, which was insured as a dwelling-house, there was a change very material to the risk, and no evidence to the contrary was offered. Indeed it was and is substantially admitted that there was such a change. There is no direct evidence that the plaintiffs had any knowledge of the tenant's business, or of the manner of occupancy by him, but the learned trial Judge seems to have been of the opinion that such knowledge was abundantly proved indirectly. Additional evidence might and should have been given on this question; the lease ought to have been proved and filed at the trial, and the plaintiffs' agent, who alone transacted the business in question for the plaintiffs, ought to have been there examined as a witness; and inferences unfavourable to the plaintiffs might fairly be drawn from their failure to give such evidence, which was quite within their "control," and was of a very material character upon a subject necessarily more or less obscure without it. But, in the view I take of the case, these questions of fact, upon which so much light might have been thrown, are not essential to its proper determination. After the making of the policy, and with a knowledge that the property was insured as a dwelling-house, and that any change material to the risk, within their control or knowledge, would avoid it, unless continued in the manner set out in the condition, the plaintiffs let it to the tenant, as before mentioned, without any restriction, so far as the evidence shews, as to its user, and thereby conferred upon him the right to make the change, material to the risk, which he did make; and, that being so, how can it be said that the change made was not within the plaintiffs' control? If they had in so many words conferred the right to make the change, could it be argued that it was not a matter within their control? Having just as effectually conferred the power. by the words which they did use, by letting the house without any restriction as to the user, the effect must be precisely the same. It does not need the aid of Heneker's case to shew that the tenant was within the right conferred upon him by the plain C. A. 1908 WESTERN TRUSTS CO. v. CANADIAN 1 Co. tiffs in carrying on the business upon the property which he did, as before described. It would have been a simple matter for the LONDON AND plaintiffs to have exercised their control by refusing to let for any purpose other than that of a dwelling-house, and, if they desired to retain their contract of insurance, that should have been done; in this instance it would have caused them the loss of this INSURANCE particular tenant, as he desired the property for the purposes of the business he afterwards carried on there, but would have Meredith, J.A. retained their insurance as it was; unless, indeed, they chose, with the defendants' concurrence, the alternative course provided for in the condition; that is, to have saved the tenant and given notice to the defendants. Doing that which their contract of insurance rendered necessary, offering the property only as a dwelling-house, would have plainly revealed the tenant's desire to rent for the purposes of a store, which, if acceded to, would have rendered the notice to the defendants plainly necessary. The fault altogether lies with the plaintiffs. We must guard against a natural disposition to view this question from the standpoint of an insured's interests only. So too we must remember what the law, coinciding with common sense, is, upon the subject, apart from the special condition in question, and then consider to what extent that condition alters such law. Apart from the condition, any change, material to the risk, avoids the policy, whether the change be made with or without the knowledge of the insured. The common sense of that is obvious. The insurers contract to insure one thing; how can they be held to have insured some other thing of a different and more hazardous character? What justice in compelling them to carry a different risk, the carrying of which might be worth double or treble, or in any other degree substantially greater than, that which they contracted to carry? Then how far does the condition in question impose that obligation upon them? Only to the extent of changes made which are without the control or knowledge of the insured. Again, the natural inclination of the minds of the great body of insured persons is to extend the benefit of the condition so as to construe it as if the words were "control and knowledge" instead of "control or knowledge." There must be cases of knowledge without controlsome of which readily suggest themselves; and also of control C. A. 1908 V. CANADIAN INSURANCE without knowledge-some of which also readily suggest themselves; for, if not, why use the two words with the disjunctive conjunction between them? To say that he who confers upon another LONDON AND the right and power to do a certain act had no control over the WESTERN TRUSTS CO. doing of it seems to me very inconsistent. There are cases in which, though the change be made both without the knowledge and contrary to the order of the insured, yet it must be a change within the provisions of the condition. For instance, the case of the insured's agent, his wife it may be, making the change in Meredith, J.A their dwelling house, or place of business, in his absence, and against his expressed will. The rule qui facit per alium facit per se would surely apply. If made by the insured's tenant, under authority to make it, conferred upon him by the insured, how can it be said that it was not within the insured's control? It was not only within his control, but it was by virtue of such control, exercised in permitting the change to be made, that it was made. It is not necessary to consider, in this case, what would be the effect of a change made by a tenant without the authority, and without the knowledge, of the insured landlord. Such a case would be very materially the opposite of this case. But it was contended that there was sufficient notice to the defendants of the change to comply with the terms of the condition. In that I am entirely unable to agree. The mere taking of another risk, upon other property, from another person in no way connected with the earlier contract, more than a year afterwards, cannot, by any stretch of imagination, be converted into notice in writing upon which the insurers could act "when so notified." The notice must be in writing, to the company or its local agent, and it would be surely beyond the bounds of reason to consider that the company's agent, when acting in that capacity in an entirely disconnected and independent matter, more than a year afterwards, was acting as agent for the plaintiffs, or giving any sort of "notice" such as the condition requires. Of the cases relied upon for the plaintiffs on this branch of the case, in Peck v. Phanix Mutual Insurance Co., 45 U.C.R. 620, notice in writing to the company was given through one who was its agent, but how given? Not as agent for the company, but in the insured's behalf, as the notice itself very plainly indicated, beginning as it did, with the words "Mr. Richard Pratt requests me to in C. A. 1908 form the company," and then going on to give the very notice which the condition required; whilst in the case of McIntyre v. East Williams Mutual Fire Insurance Co., 18 O.R. 79, it was held that written notice had not been given, under circumstances very much stronger in favour of a contention that it had than those of this case. These cases are, therefore, very much against, rather INSURANCE than in favour of, the plaintiffs' unreasonable contention on this branch of the case. LONDON AND V. CANADIAN Co. Meredith, J.A. I would allow the appeal and restore the judgment directed to be entered by the trial Judge. E. B. B. 1908 Jan. 13. [MABEE, J.] RE CRAMP STEEL COMPANY (LIMITED). Company-Dominion Winding-up Act-Application of Act to Provincial Corporation. The provisions of the Dominion Winding-up Act (R.S.C. 1906, ch. 144) do not apply to a company incorporated under the Ontario Companies Act unless such company is shewn to be insolvent.. THIS was an application for a winding-up order by shareholders of a company incorporated under the Ontario Companies Act, and was heard before MABEE, J., in Chambers, on January 10th, 1908. The facts are set out in the judgment. F. Arnoldi, K.C., and J. A. Paterson, K.C., for applicants. W. E. Middleton and J. A. Ferguson, for the company. J. R. Cartwright, K.C., for the Attorney-General of Ontario. January 13. MABEE, J.:-This is an application by shareholders for a winding-up order under R.S.C. 1906, ch. 144. The company was incorporated under the Ontario Companies Act. There are no creditors, so insolvency cannot be shewn. It was admitted that the applicants had made out a case under sub-sec. (d)* * 11. The Court may make a winding-up order, (d) when the capital stock of the company is impaired to the extent of twenty-five per centum thereof, and when it is shewn to the satisfaction of the Court that the lost capital will not likely be restored within one year; or (e) when the Court is of opinion that for any other reason it is just and equitable that the company should be wound up. |