to instruct you that the cause of action for which this present suit is brought, has been fully adjusted and satisfied.

"Your verdict will therefore be for the defendant."

The learned trial judge of the Canadian court, in his opinion, said:

"The defendant company did not recognize the attempted rescission, but continued to claim payment of the balance due to them under the agreement, and this action was not brought until June 5, 1902, more than 10 years after the date of the agreement. Leaving out of consideration for the moment the question of the responsibility of defendant company for any statements of McMath, I should not find on this evidence the alleged misrepresentations as to the value to have been anything more than a statement of opinion. I do not know that I would be justified in finding any statement which he made to have been so flourishing as to reach the limit of exaggeration.

"Eighteen ninety-two was, in the parlance of the day, a 'boom' time for Windsor. Prices were no doubt beyond actual values for any immediate purpose except to sell again, but still higher prices were looked for. The purchasers could have no ground for neglecting to examine for themselves property so accessible, and to ascertain its real condition.

"The president and secretary of the defendant company swear that it was worth the price paid in 1892, and is worth it now, although it was not so probably in 1900. Mr. H. T. W. Ellis says that he would not have taken less than $1,000 or $1,200 per acre for it if it had been his in 1892.

"Mr. B. H. Rothwell says he would not be afraid to take it today at $1,000 an acre, and make money out of it. Mr. Noble A. Bartlett thinks the price paid was fair at the time. Mr. Patrice Guillette says it was worth in 1892, according to the properties around it, $1,000 an acre, anyway. There were other witnesses who gave opinions of value of a widely different character, but these examples are sufficient to show that no man expressing an opinion on the same line of these gentlemen could be accused of making a fraudulent misrepresentation.

"I do not find that there was any fraudulent suppression of the fact that McMath was getting a commission from the defendant company brought home to any officer

or member of the company. They simply employed him as an agent to sell the land for a definite commission. The amount of the commission was $1,000, which was large, having regard to the amount of the purchase money, $11,500, but that is explained by the fact that the defendants, who were also interested in other adjoining properties, thought they were securing purchasers who would advertise, develop, and 'boom the property to the advantage of the other interests which defendants had in the vicinity. And I find, as a fact, that defendant company, being moved by these considerations, refused an offer which would have netted them $700 more than plaintiffs agreed to pay.

"I do not find that the mere fact that Curry was told by McMath that he (McMath) was taking a temporary interest in the transaction cast on him the duty of informing the others that McMath was getting a commission and to what amount. This statement, made in Krolik's presence, was likely to have the opposite effect upon Curry, and it was the duty of Krolik then to have investigated the nature of the relations between McMath and the vendors. * * *

"The action will be dismissed, with costs, and there will be a judgment for defendant company on the counterclaim, with costs, amount of balance due to be settled by the master, if the parties cannot agree.'

Bernard B. Selling, for appellant.

Malcolm McGregor and Brennan, Donnelly & Van De Mark, for appellees.

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

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. All the 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

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

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. 60

68.

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.