Lord Maugham:-

This is an appeal by special leave from a judgment of the Supreme Court of Canada, dated 21st December 1934, reversing a judgment of the Appellate Division of the Supreme Court of Alberta, dated 24th March 1934, which allowed an appeal from the judgment of Boyle, J., the trial Judge. It may be mentioned here that there was a jury at the trial until the close of the evidence; but counsel for both parties agreed that the jury should be dispensed with and the decision of the case was left to the trial Judge who gave judgment in favour of the respondent for the full amount of her claim, viz., for $13,356 with costs. The judgment was reversed and the action was dismissed by the Appellate Division (McGillivray, J. A., dissenting). The Supreme Court of Canada restored the judgment of the trial Judge in respect of the claim for $8,500. The reasons for the judgment were delivered by Duff, C. J., Crockett, Hughes and Maclean, JJ., concurring; but there was a dissenting judgment by Cannon, J. The present appeal is concerned only with the claim for $8,500 with interest from 29th June 1929, and it will be unnecessary to deal with anything but that claim.

The respondent is the widow of Robert Wilson Begley, a farmer who died on 26th December 1928, leaving a will under which she was sole executrix and sole beneficiary. She was in no sense a business woman and instead of taking out probate she gave a power of attorney to one, J.W. McElroy, also a farmer who had been a neighbour and close friend of the respondent and her husband for many years. He was granted administration of the estate with the will annexed; and on 27th June 1929, having completed the administration of the estate he was discharged. The respondent had had for a considerable time a small savings account with the appellants, the Imperial Bank of Canada, at their Calgary branch, and on the completion of the administration of the estate the proceeds of the estate were deposited to the respondent's credit in the said account. They amounted to the sum of $13,006. The total sum to her credit in the said account amounted after such deposit to the sum of $13,081. McElroy had had for a considerable time an account in the same branch of the bank which had generally showed a debit balance; and at this period his debit balance exceeded $8,000. The Bank for some years had been pressing him for payment. They held security by way of mortgage on McElroy's land, but shortly before the events to be stated this mortgage was postponed to enable McElroy to mortgage the same lands to raise money for the purpose of discharging a part of his indebtedness to the appellants which had amounted in December 1929, to $18,690. The appellants were apparently not satisfied with their security, and the assistant general manager at Toronto continued to urge Mr. Weaver, the local manager of the bank at Calgary, to obtain payment from McElroy of his debt. In April 1929, Weaver learnt that a sale which had been in prospect of one of McElroy's farms to one Herron, from the proceeds of which McElroy had promised to discharge his debt to the Bank, might fall through, and at that time McElroy is said to have stated to Weaver that, if the sale did fall through, he could borrow from the respondent a sufficient sum to pay his debt.

The respondent at this time was in the United States; and on 7th June 1929, McElroy appears to have told Weaver that the respondent had not yet returned from the States and that he would make arrangements with her when she came back. The respondent returned to Calgary on 19th June 1929. She desired that McElroy should attend to the investment of her money, and on 24th June she executed a power of attorney in his favour, using for the purpose a printed form in very wide terms supplied by the appellants. This power of attorney, which in fact bears date 28th June 1929, was executed at the office of Mr. Moyer, a solicitor who had acted for some years for McElroy, and had acted as solic