pecuniary loss, and depends on such narrow grounds as I have held to be successful in this case, there is not much to choose. In the exercise of my discretion I do not award costs to either party. From this judgment the plaintiff appealed to a Divisional Court. On December 2nd the appeal was heard before BOYD, C., MAGEE, and MABEE, JJ. A. H. Marsh, K.C., and W. J. Clark, for the appellant. The judgment is based on the ground that the contract was not carried out within the time specified. Time was not of the essence of the contract. The contract consisted of an offer and acceptance, and the provision contained in the contract, "Time shall be the essence of this offer," applies only to the acceptance of the offer and not to the performance of the contract itself. As soon as the defendant had accepted the offer this provision was satisfied. In the interpretation of contracts at common law and equity there was a distinction in this respect while at common law time was always of the essence, it was not so in equity. Now a stipulation to such effect will govern. It must, however, be stated in clear and unambiguous language, and will be construed strictly: Wells v. Maxwell (1863), 32 Beav. 408; Parkin v. Thorold (1852), 16 Beav. 59, 65. The main object of the agreement was the sale. The time of the performance was something ancillary: Seaton v. Slade (1802), 7 Ves. 264, 273, and Gregson v. Riddle (1784), cited therein; Hipwell v. Knight (1835), 1 Y. & C. Ex. 401. Even now, in cases of redemption, a provision limiting the time will not be allowed to govern: Webb v. Hughes (1870), L.R. 10 Eq. 281, 286. In Bowerman v. Fraser (1907), 10 O.W.R. 229, where there was a similar provision, Britton, J., who tried the case, held that this provision only applied to the acceptance of the offer. The judgment was reversed on appeal, (1907), 10 O.W.R. 729, but on other grounds. In Crabbe v. Little (1907), 9 O.W.R. 551, Mabee, J., held that a similar provision only applied to the acceptance of the option. Even if time was of the essence of the contract, the non-performance was caused by the defendant, the plaintiff being always ready and willing to carry out the purchase. The defendant cannot take advantage of her own default. The plaintiff, being debarred from D. C. 1907 FOSTER v. ANDERSON. Riddell, J. D. C. 1907 FOSTER v. ANDERSON. performing his part of the contract by the act of the defendant, is relieved from liability: Upperton v. Nikolson (1871), L.R. 6 Ch. App. 436, 443; Pomeroy on Specific Performance, 2nd ed., 390; Sugden's V. & P., 14th Eng. ed., pp. 262-3, 8 Amer. ed., ch. vi., p. 257. As to the tender of a conveyance, the general rule, in the absence of any provision to the contrary, is that the purchaser is to prepare the conveyance at his own expense and to tender it to the vendor for execution: Stevenson v. Davis (1893), 23 S.C.R. 629, 633; Stephens v. De Medina (1843), 4 Q.B. 427. In this contract, however, there is the provision that the conveyance is to be prepared at the vendor's expense. The proper construction is that the vendor is to prepare it, and this dispenses with the necessity of the purchaser preparing and tendering it: Clark v. McKay (1872), 32 U.C.R. 583, 589. The plaintiff, however, did make a tender. Then as to the cross-appeal, there was no misrepresentation on the part of the plaintiff. The agent was the agent of the defendant and not of the plaintiff. The alleged misrepresentation was an afterthought. The trial Judge has, however, expressly found this point in the plaintiff's favour. As to the Statute of Frauds, there was a sufficient description of the property. The fact of its being described as No. 22 instead of No. 24 is, under the circumstances, immaterial. There is, as a matter of fact, no such number as 22 on this street. Both parties knew the subject matter with which they were dealing, and the frontage and depth are given. The lot in question was the only property owned by the defendant on the street. It is identified by the fact that the property sold is to be subject to an existing mortgage of $4,000, which there was against this property, and there is the deed of conveyance executed by the defendant and in the possession of her solicitor, in which the property is properly described: Coote v. Borland (1904), 35 S.C.R. 282; Gillatley v. White (1870), 18 Gr. 1; Plant v. Bourne, [1897] 2 Ch. 281. G. H. Watson, K.C., for the respondent. Under the provision in the contract, time is made the essence of the contract, and not merely of the offer. Whatever may have been the equitable doctrine, there is no doubt that time can now be made the essence of the contract. The intention of the parties also was that time was to be of the essence, the property being of a speculative character, and the market fluctuating; and this would govern altogether, apart from express contract: Wallace v. Hesslein (1898), 29 S.C.R. 171; Robinson v. Harris (1891), 21 O.R. 43 (1892), 19 A.R. 134; Wells v. Smith (1837), 7 Paige Ch. 82; Crossfield v. Gould (1883), 9 A.R. 218; Nason v. Armstrong (1894), 21 A.R. 183 (1894), 25 S.C.R. 263; Carter v. Phillips (1887), 144 Mass. 100; Brooke v. Garrod (1857), 3 K. & J. 608, 2 DeG. & J. 62; McClung v. McCracken (1883), 3 O.R. 596. The plaintiff should have tendered a conveyance within the time limited. He knew what the terms of the contract were, including the time within which it was to be completed. As pointed out by the trial Judge, it is quite clear that the plaintiff did not intend that the sale should be carried out by the time stipulated. This appears from his letter to the defendant's solicitor enclosing the conveyance, in which he intimates that it would have to go to Texas to be executed by the defendant there, and that on its return he would be ready to pay the required amount of the purchase money, and complete the contract, thus shewing he knew the matter would not be closed within the time limited. He should have also tendered the amount of the purchase money required to be paid, and also the second mortgage required to be given by him; and even when the mortgage was tendered, it was not executed. The onus of tendering the conveyance was on the plaintiff. All that the agreement provides for is that it was to be prepared at the defendant's expense; that does not dispense with the preparation by the plaintiff. The evidence shewed that the parties were dealing with each other at arm's length, and the plaintiff knew that the defendant would insist upon a strict performance of the contract: Pomeroy on Specific Performance, 472. There was no default on the defendant's part; she was ready to carry out her part of the contract as soon as the plaintiff had done what was necessary to be done by him: Dalrymple v. Scott (1892), 19 A.R. 477; Johnston v. Milling (1886), 16 Q.B.D. 461. As to the cross-appeal, there was clearly misrepresentation on the agent's part; the agent was the agent for the plaintiff as well as for the defendant. His letter to the defendant would imply that her solicitor had approved of the sale to the plaintiff, while it is proved that there never was any such approval. It is not essential that fraud should be proved, but merely misrepresentation of a fact: Coventry v. McLean (1892), 22 O.R. 1; Mullens v. Miller (1882), 22 Ch.D. 194; Adam v. Newbigging (1888), 13 App. Cas. 308. As to the description, there is not a sufficient description under the statute: Gray v. Smith (1889), D. C. 1907 FOSTER V. ANDERSON. D. C. 1907 FOSTER V. ANDERSON. 43 Ch.D. 208, 214; Bradley v. Elliott (1906), 11 O.L.R. 398; Knapp v. Carley (1904), 3 O.W.R. 940. It is admitted that the description of the property as No. 22 is inaccurate. It is not sufficient to say that this is the only property on the street; there might be something in this if the agreement had said "my" property on Ann street. Nor does the fact of there being the mortgage on the property which the plaintiff had to assume assist the plaintiff. The only way the land can be identified is by the admission of parol evidence. The fact of the deed which was executed by the defendant containing a proper description cannot assist the plaintiff. It was not admissible in evidence; it had never been delivered, and was merely an escrow in the hands of the defendant's solicitor. The granting of specific performance is discretionary, and the Court will not grant a decree therefor under the circumstances: Harris v. Robinson, 21 S.C.R. 390; Lemare v. Dixon (1874), L.R. 6 H.L. 414; Tamplin v. James (1879), 15 Ch.D. 215; Walker-Parker Co. v. Thompson (1906), 7 O.W.R. 125. December 6. BOYD, C.:-Stipulations making time of the essence of a contract are to be construed strictly and require to be distinct and express: Hudson v. Temple (1860), 29 Beav. 536, at p. 543, and Wells v. Maxwell, 32 Beav. 408, at p. 414. In the latter case time was made of the essence of the contract in respect of making objections to the title. The Master of the Rolls asks why does the contract say "in this respect" if it was meant that time should be of the essence of the contract in every other respect? This is distinctly a case in which no time whatever is limited for the performance of the contract. I think the strict reading of the clause in this contract, "Time shall be of the essence of this offer," means in respect to the offer the acceptance of the offer-time shall be essential. Does it mean that in respect of all matters and terms contained in the proposal after its acceptance, which then becomes a contract, time shall be equally essential? It does not say so, and if it is ambiguous, the Court leans against its being extended beyond its obvious meaning. However, I do not find it necessary to place my decision on this ground. Assume that time was made essential as to the completion of the contract, the rule of Court is that the vendor cannot claim the benefit of the term making time of the essence, if he himself has been guilty of laches-if he has failed to bestir himself when he should have been doing this policy of inactivity may enure to the exculpation of the other side. The Court may then consider that the time element has ceased to be of an essential character, and that reasonable diligence only has to be regarded. Now, there is a clause of the contract which imposes a duty on the vendor as to the conveyance. It reads, the deed or transfer is to contain a covenant on the part of the purchaser to pay off the said assumed mortgage, and to be executed by the purchaser (for the purpose of engaging himself personally to its payment) and prepared at the expense of the vendor; and mortgage to be at my (purchaser's) expense. The general rule, in the absence of other provision, is that the purchaser prepares the conveyance at his own expense: Stevenson v. Davis (1893), 23 S.C.R. 629, 633. The reason for this is discussed in Stephens v. De Medina, 4 Q.B. 422, 427, and Lord Denman, C.J., intimates that the rule seems to be a consequence from the fact that the purchaser is to pay for the conveyance. The language used by Parke, J., in Price v. Williams (1836), 1 M. & W. 1, is now in point, where the instrument (lease) was "to be prepared at the sole expense of the landlord." The learned Judge said, at p. 13: "As the lease was to be prepared at the sole expense of the defendant" (lessor), "he was to prepare it, and not the lessee. It may be, indeed, that one may be bound by the express terms of a contract to prepare a lease or conveyance, and yet that it shall be paid for by another, for such stipulations are not inconsistent, but when all that is stipulated for is; that it shall be prepared at the expense of the lessor, and there is no context to explain it, it must be intended that the lessor is to prepare it also." Here the solicitors on both sides understood (and I think rightly) that the vendor was to prepare the deed and the purchaser the mortgage: Clark v. McKay, 32 U.C.R. 583, 589. By the time limits of the contract, the acceptance was on the 25th September, 1906, ten days were allowed to investigate the title, which would bring it to the 5th October, and the sale was to be completed on the 10th October. Accordingly on the 4th October the purchaser's (plaintiff) solicitor writes vendor's (defendant) solicitor a letter asking that a D. C. 1907 FOSTER v. ANDERSON. Boyd, C. |