which they supposed was being sold, was that known as No. 24, and that it was a misdescription to call it No. 22. The defendant says she had no other property in Toronto than that known as No. 24, and it was that property which she meant to sell and believed she was receiving and accepting an offer for. The full description of the property in the offer is as follows: "All and singular the premises situate on the north side of Ann street in the City of Toronto, being the premises known as No. 22 Ann Street, having a total frontage of about 140, viz., 89-8, 50 feet, more or less, by a depth of about 113 feet, for the 89-8 frontage, and 92 for the 50 feet frontage, more or less." And further on it is stated "said premises are part of park lot No. Eight according to plan No. —, registered in the registry office or land titles office." The defendant herself says: "There was no No. 22 Ann street in Toronto. My house was 24 Ann, and there was only three houses there. The three numbers were 2, 24 and 40.. They were the only numbers on the street, but mine was always 24." The evidence does not shew the number to be more than colloquial. The fact that there was not any No. 22 takes all force from the objection raised under the statute. If we are not to read the offer and acceptance as meaning that the parties, knowing well the property with which they were dealing, chose to call and know it as No. 22, then No. 22, having no meaning and throwing no light on the rest of the description, may be eliminated, and we look to the other particulars to find what is being sold. Those others are certainly much more definite than the description held sufficient in Plant v. Bourne, [1897] 2 Ch. 281, and render unnecessary a consideration of the various authorities which might have to be dealt with had there been a No. 22 Ann street to which the rest of the description would answer. It cannot be said that any property other than the defendant's is mentioned, and one is not doing anything contrary to or disturbing or even adding to the written contract in holding that it applies to the property which the defendant owns and which it answers. The conveyance to the plaintiff, which the defendant signed and sealed in anticipation of the sale being carried out, makes no allusion to the street number, and describes the land as part of park lot No. 8, and by metes and bounds. The objection under the statute fails. The appeal should in my opinion be allowed, and the plaintiff have judgment for specific performance, and with costs. D. C. 1907 FOSTER v. ANDERSON. Magee, J. D. C. 1907 FOSTER v. ANDERSON. Mabee, J. MABEE, J.-In Crabbe v. Little, 9 O.W.R. 551, I had occasion to consider a contract in terms similar to that in question in this action, and formed the opinion that time was not of the essence of the contract but of the offer only. Mr. Justice Britton, in Bowerman v. Fraser, 10 O.W.R. 229, expresses the same view, and the decision of the Court of Appeal in the latter case turning upon another point, his construction of the contract upon the matter now under consideration does not seem to have been questioned. Neither of these cases was brought to the attention of the learned trial Judge, and if they are rightly decided then time was not by the contract in question made of the essence of the sale. It was, however, contended that owing to the subject matter of the contract the Court should hold that the parties contracted upon the basis of time being of the essence. I do not think so. It is the ordinary contract for the sale of land, and no reason whatever exists for supposing that it made the smallest difference to the parties whether there was some delay or not. The delay that ensued was caused entirely by the attitude taken upon behalf of the defendant. Her solicitor neglected to answer the letters and reasonable requests made by the solicitor for the plaintiff; he did not advise the plaintiff's solicitor that he had sent forward to the defendant the deed for execution, or that it had been executed and returned to him. Indeed, the course taken seems to have been a plain attempt to put the plaintiff in default, and now it is said that the plaintiff should be visited with the consequences. I do not think so. It was faintly argued that the contract did not comply with the Statute of Frauds in that the wrong lot was mentioned, but this was amply supplied at the trial. It was said the defendant had been misled by the statement in Hill's letter that he had consulted the defendant's solicitor about forwarding the Foster offer. I do not read the letter complained of as being in any way misleading, and it is clear this was a mere afterthought raised for the purpose of trying to avoid carrying out a bonâ fide contract. The defence is entirely without merit, and the plaintiff should have specific performance of the contract and costs of action. G. F. H. [DIVISIONAL COURT.] CLISDELL V. LOVELL. Jury Notice-Striking Out in Chambers-Equitable Issue-Judicature Act, sec. 103-Con. Rule 551. Since the rules providing for the holding of separate jury and non-jury sittings it is desirable, at any rate where the venue is laid in Toronto, to have it settled at as early a stage of the action as possible, whether the case is to be tried with a jury or without a jury. Montgomery v. Ryan (1906), 13 O.L.R. 297, approved of. In this action the plaintiff sought to set aside a certain agreement as fraudu- Held, that this was an action which it was proper to try without a jury. THIS was an appeal by the plaintiffs from the judgment of BRITTON, J., in Chambers, upon a motion to strike out the jury notice in this action, the nature of which is sufficiently stated in the judgments. The motion before BRITTON, J., was argued on October 15th, 1907. W. H. Blake, K.C., for the defendant Mackenzie and the Dominion Brewery Co., the applicants. H. Cassels, K.C., for the defendants Case and the Case Co., Limited. W. N. Ferguson, for the defendant Millar. W. N. Tilley, for the plaintiffs. October 18. BRITTON, J.-The plaintiffs claim, inter alia, that an agreement between the defendant Lovell and the Dominion Brewery Co., dated February 13th, 1907, for the sale and transfer of the brewery property therein described, should be set aside as fraudulent and void as against the plaintiffs, and that the plaintiffs be declared to be entitled to one-eighth share each in said property, Looking at the pleadings, and reading the judgment of Riddell, J.,* upon a motion to compel answers by some of the defendants * See 9 O.W.R. 687. D. C. 1907 Oct. 18. Nov. 27. D. C. 1907 CLISDELL v LOVELL. Britton, J. upon examination for discovery, and considering all that was urged by counsel upon the argument, I am unhesitatingly of the opinion that the issue herein should be tried without a jury. In any view of the case, I cannot think that a Judge, in dealing with any of the alternative claims of the plaintiffs, would be assisted by attempting to get the findings of a jury upon the issues of fact. It is plainly a case in which a Judge at the trial, unless for some special reason to the contrary, not now appearing, would strike out the jury notice. That being so, and as the venue is laid in Toronto, I must follow Montgomery v. Ryan (1906), 13 O.L.R. 297. This case is expressly in point. Order to go striking out jury notice. Costs in the cause. The appeal was argued on October 30th, 1907, before MULOCK, C.J. Ex.D., and ANGLIN and CLUTE, JJ. W. N. Tilley, for the plaintiffs, contended that the real claim of the plaintiff was for damages, and the real issue one of fact; that where there are both legal and equitable issues, the action has to be set down at the jury sittings, unless otherwise ordered : Con. Rule 551; Conmee v. Canadian Pacific R.W. Co. (1886), 12 A.R. 744, and cases there cited; Sawyer v. Robinson (1900), 19 P.R. 172; Regina v. Grant (1896), 17 P.R. 165; that the case turned on whether Case was Mackenzie's authorised agent or not; that if the order appealed from stood, the trial Judge ceased to have any discretion, and could not, if he wished, have certain issues tried by a jury: Regina v. Grant, 17 P.R. 165; that as to Montgomery v. Ryan, 13 O.L.R. 297, that decides that a different system should prevail where a case is to be tried in Toronto, but this is not warranted by anything in the Rules, and such a practice should not be sanctioned: Lauder v. Didmon (1894), 16 P.R. 74; that the plaintiff had elected to have a jury, and the question was whether there was any ground for depriving him of one In re Martin (1882), 20 Ch.D. 365. W. H. Blake, K.C., for the defendants Mackenzie and the Dominion Brewery Co., contended that the pleadings must be taken to represent the claim, and could not be pared down as sought here; and referred to the judgment of Riddell, J., in this case 9 O.W.R. 687; that an equitable issue is inevitable in this action Holmested and Langton's Judicature Act, p. 15; that the real issue was whether Mackenzie was a trustee or not, and the question of agency only one point which arose in the case; that Montgomery v. Ryan affirmed a convenient practice; that a Judge in Chambers has the same discretion to deal with a jury notice as he would have if sitting at nisi prius, and no error of principle on his part in exercising such discretion has been shewn here. H. Cassels, K.C., for the defendant Case and Case Company, Ltd., referred to Brown v. Wood (1887), 12 P.R. 198, as to the discretion of the trial Judge to strike out a jury notice under sec. 103 of the Judicature Act, R.S.O. 1897, ch. 51; that the plaintiff is bound by the form of action which he chooses to launch: Pawson v. The Merchants Bank (1885), 11 P.R. 72; that the action here was for a declaration of trust, and purely equitable. He also referred to Farran v. Hunter (1887), 12 P.R. 324. W. N. Ferguson, for the defendant Millar. Tilley, in reply, contended that Brown v. Wood shewed that the discretion of the trial Judge was much larger than that of the Judge in Chambers: Judicature Act, sec. 110; and as to the contention that the pleadings must govern, referred to per Burton, J.A., in Conmee v. Canadian Pacific R.W. Co., 12 A.R. 744, at pp. 758-9. November 27. MULOCK, C.J. :-This is an appeal from the order of Britton, J., striking out the jury notice. The statement of claim sets forth a series of intricate and complicated negotiations, dealings and agreements between the various parties to the action, which the plaintiffs contend entitle them to a declaration that a certain agreement for the sale and transfer of property is fraudulent and void, that the plaintiffs are entitled to a one-eighth share each in the property in question, they bearing a share of the obligations existing in respect of the property, or, in the alternative, that they are entitled to a one-eighth share in certain capital stock in respect of the property, or, in the alternative, that the plaintiffs are entitled to damages against the defendants Case Company and McKenzie, and to a one-quarter interest in any benefits received by the defendant Millar out of the property. If the substantial relief sought in this action is to set aside the 27-VOL. XV. O.L.B. D. C. 1907 CLISDELL v. LOVELL. |