[IN THE COURT OF APPEAL.]

BOHAN V. GALBRAITH.

Vendor and Purchaser—Contract for Sale of Land-Specific Performance-Correspondence Offer Quasi-acceptance-Agent.

The decision of a Divisional Court, 13 O.L.R. 301, dismissing an action for specific performance, on the ground that no contract was made out upon the documents and correspondence, was affirmed by the Court of Appeal.

AN appeal by the plaintiff from the decision of a Divisional Court, 13 O.L.R. 301, reversing the judgment of Teetzel, J., and dismissing an action by the purchaser to compel specific performance by the vendor of an alleged contract for the sale of land. The facts are stated in the judgments delivered in the court below.

The appeal was heard by Moss, C.J.O., OSLER, GARROW, MEREDITH, JJ.A., and RIDDELL, J., on the 15th May, 1907.

J. A. Paterson, K.C., for the plaintiff, appellant. Graham was the agent of the defendant to negotiate for the sale of the property, though not necessarily to bind him, and he was the agent of the plaintiff in writing the letter of the 20th December, 1905, accepting for the plaintiff the offer made by the defendant in the letter of the 15th December, 1905. That letter was an offer to sell at a named price, and was accepted by the letter of the 20th. The lands are identified. Thus was formed a complete contract, which satisfies the Statute of Frauds, containing the names of the parties, the purchase money, terms of payment, and description of property: Bundy v. Johnston (1857), 6 C.P. 221; Harty v. Gooderham (1871), 31 U.C.R. 18; Clergue v. McKay (1903), 6 O.L.R. 51. It was not necessary that the letter of the 15th December should have been written by the plaintiff himself: Welford v. Beazely (1747), 3 Atk. 503; Barkworth v. Young (1856), 4 Drew. 1, 13; Richard v. Stillwell (1885), 8 O.R. 511, 513. The previous negotiations strengthen the argument. If the letter of the 20th December be viewed as an offer by the plaintiff to purchase for $14,000 cash, it was accepted by the defendant by his letter written at the foot of the draft agreement and signed by his initials. See McMillan v. Bentley (1869), 16 Gr. 387, 388, 390; Rose v. Cunynghame (1805), 11 Ves. 550; Bradford v. Roulston (1858), 8 Ir. C.L.R. 468. Signature by initials is

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sufficient: Fry on Specific Performance, 4th ed., sec. 518; Keefer v. Roaf (1884), 8 O.R. 69, 72. In answer to the letter written by the defendant at the foot of the draft agreement, the letter of the 3rd January, 1906, is sent by Graham to the defendant enclosing an agreement signed by the plaintiff, and thus the contract is made: Schneider v. Norris (1814), 2 M. & S. 286; Evans v. Hoare, [1892] 1 Q.B. 593. The effort of the defendant to obtain a more formal contract cannot undo or affect the contract already made: Rossiter v. Miller (1878), 3 App. Cas. 1124; Filby v. Hounsell, [1896] 2 Ch. 737, 742. The contract made by the letters was an open one, and it is no argument against such a position that the defendant did not intend it as such. Hussey v. Horne-Payne (1879), 4 App. Cas. 311, is discounted by Bolton Partners v. Lambert (1889), 41 Ch. D. 295, 298. If there was a waiver, it must be clearly proved: Carolan v. Brabazon (1846), 3 Jo. & Lat. 200, 209; Robinson v. Page (1826), 3 Russ. 114.

W. E. Middleton, for the defendant. The appellant's contentions are answered by what is said by Lord Selborne in Hussey v. HornePayne, 4 App. Cas. 311, at p. 323. The correspondence shews that the parties never came to any agreement. The defendant relies on the offer of the 2nd January, not as a waiver of a contract theretofore made, but as a recognition by the plaintiff of the fact that there was not any contract. Neither the defendant nor the plaintiff had any intention of entering into an open contract. The offer of the plaintiff to waive the legal consequences of such a contract, and to act as though the offer of the 2nd January had been accepted, cannot help him, as all the terms of the agreement between the parties must appear in the writing: Green v. Stevenson (1905), 9 O.L.R. 671. The letter of the 15th December is a mere quotation of price, none of the terms usual and necessary in contracts of the class being mentioned, but being left to be the subject of negotiation when an agreement as to price should be reached: Harvey v. Facey, [1893] A.C. 552; Johnston v. Rogers (1899), 30 O.R. 150; Jones v. Daniel, [1894] 2 Ch. 332; Crossley v. Maycock (1874), L.R. 18 Eq. 180. The intention to arrange as to the terms of purchase is more readily inferred when the subject matter of the negotiations is land than when it is chattel property, as in the latter case the price is the only thing to be arranged. For this reason the naming of a price to an agent confers no authority on him to sell: Bradley v. Elliott (1906),

11 O.L.R. 398; Hamer v. Sharp (1874), L.R. 19 Eq. 108; Rosenbaum v. Belson, [1900] 2 Ch. 267; Prior v. Moore (1887), 3 Times L.R. 624. The plaintiff cannot make a contract out of the letter of the defendant sending the draft agreement to Graham, because it was plainly not written by the defendant with the idea of contracting, and because the document sent reserved to the defendant the right to reject the offer when returned.

Paterson, in reply.

June 5. OSLER, J.A.:-The facts are peculiar, and the decided cases do not afford us much assistance, but I think that the judgment must be affirmed, for the reason I will state.

If we had nothing but the defendant's letter of the 15th December, 1905, and the letter from the plaintiff's agents of the 20th December in reply, it might perhaps be said that a completed contract between the parties was thereby constituted, unlikely as it may seem that the defendant intended his letter as an offer to sell, and thereby to expose himself to the difficulties in which a vendor sometimes finds himself who enters into an open contract. But the defendant's subsequent conduct in requiring an offer to be made by the plaintiff, in the form and on the terms sent forward by the latter's agents, shews that he did not consider his letter of the 15th December as anything but the quotation of a price, and, though it is possible that this might have been of no avail to him if the plaintiff had refused to make the offer, and had rested upon his letter of the 20th December as an acceptance of an offer made by the plaintiff, yet, when the latter acceded to his opponent's position and signed and transmitted an offer in the terms required, he cannot, in my opinion, now be heard to say that this offer went for nothing and that a contract already existed, notwithstanding it. I think it is true to say that he thereby yielded to the defendant's view that the offer was to come from himself, and upon the terms the defendant required. This offer the plaintiff made, but, as it was not accepted by the defendant, there is no contract between the parties.

The appeal must be dismissed with costs.

MEREDITH, J.A.:-The question involved in this case is entirely one of fact-whether the transactions which took place between

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the parties constituted a completed contract for the sale of the lands in question.

The appellant's contention ignores a very important factor in the case. I do not refer to anything which took place after the 20th December, but do to the fact that at the inception of the negotiations a formal contract in writing to buy had been signed by the appellant and had been sent to the respondent, and that the subsequent correspondence and acts of the respondent shew that he was acting throughout in reference to a contract of that character; and that his letter of the 15th December was written, not as a separate and independent offer to sell, but in reference to such a contract so evidenced and containing the like provisions with the variations which that letter indicated. Consequently the original form of contract was altered and sent back by him to be signed by the appellant and again sent to him, so that the contract might be made, the parties eventually agreed, in the same manner as originally proposed by the appellant-by writing containing all the terms of the sale and purchase.

The result is that no concluded contract has been proved; that the letter of the 15th December did not and was not meant to create an unconditional offer which might be accepted by any sort of written communication the appellant might choose to employ. This conclusion is strengthened by the fact that the communication was made to the respondent's agents, who were not, so far as the evidence shews, agents for the sale of the property, and not to the appellant himself.

Those

The cases referred to give no great assistance. How can they? The question is one of fact; and facts differ in all cases. cases, so much relied upon by the appellant-Harvey v. Facey, [1893] A.C. 552, and Johnston v. Rogers, 30 O.R. 150-seem to me to have no practical bearing upon this case. They dealt with the sale of commodities the prices of which were open, speculative, and generally fluctuating constantly, in character.

I would dismiss the appeal.

RIDDELL, J.-Had the correspondence in this case stopped with the letter of the 20th December, 1905, from Graham to the defendant, I am inclined to think the plaintiff would have made out his case. The inference would then be irresistible that the de

fendant intended his letter of the 15th December as an offer, and the case would have been outside of Harvey v. Facey, [1893] A.C. 552. That case went off, of course, on the ground that there was no offer to sell on the part of the defendant. Johnston v. Rogers, 30 O.R. 150, which is a judgment of a Divisional Court, is not binding upon this Court; it seems to be opposed to Harty v. Gooderham, 31 U.C.R. 18; and, as at present advised, I am not prepared to give assent to it. But it is not necessary to decide as to how the case would have stood had there been no correspondence subsequent to the letter of the 20th December. The correspondence following that letter makes it clear to my mind that the defendant did not intend by his letter of the 15th December to do more than tell his agent, Graham, to procure an offer from the plaintiff. Perhaps this in itself would not have been sufficient to relieve him, had the letter been a clear and unequivocal offer to sell (Hobbs v. Esquimalt and Nanaimo R.W. Co. (1899), 29 S.C.R. 450), but it is not; and that the plaintiff understood that he must submit another offer to the defendant for acceptance is shewn by his conduct in sending forward the offer of the 2nd January, 1906.

In the view I take of the case, there never was in fact any agreement between the parties, and the question of waiver does not arise. I would dismiss the appeal with costs.

Moss, C.J.O., and GARROW, J.A., concurred in dismissing the appeal.

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BOHAN บ.

GALBRAITH.

Riddell, J.

E. B. B.