Слике страница
PDF
ePub

of the purchase of a particular article for a particular purpose.

1890

MAY & CO.

v.

Patterson J.

The negotiations between these parties was, as pointed McDOUGALL. out by Mr. Henry in his argument at no time at an end. The offer made by the plaintiffs, asking $180 cash, was distinctly refused and that, at the time, would seem to have put an end to the negotiations. But it does not exclude the correspondence up to that time, for when the matter was revived, the correspondence was revived with it.

The negotiations were re-opened by the plaintiffs who wrote to say that they had an opportunity to dispose of an English table having had inquiries about one from the North-West, probably from an Englishman who had settled there and wished to procure a table such as he had been accustomed to play on.

In answer to that the plaintiffs got the description of the table, which has been spoken of so much, offering merely $50, where $180 was asked before, and saying something to which I think more force has been given than it is entitled to. The writer says: "We have never seen the table at all, etc." If that is true it scarcely puts the parties on the same footing as in dealing with something of which neither of them knew anything, for so far as Mr. McDougall is concerned the table was purchased by his agent at auction and he had seen it by his agent. How accurately the agent examined it we cannot tell, but he acted for the defendants and saw what was purchased. The reference in that letter where the writer says "We would refer you to Jerry E. Kenny, Esq., or F. D. Clarke, auctioneer, Halifax," I do not take to be an offer of examination so as to bring it within the principle of caveat emptor. The table was boxed up in Halifax ready to be shipped. The plaintiffs say, "We trust it is as represented," but the evidence shews it was not an English table at all. An English table may be a table for playing English billiards, but it is clear that that was not what these parties were talking about, for the original price of the table was mentioned in English currency. I have no

1890

doubt that the description given was of a table made in MAY & CO. England; the plaintiffs certainly understood it so.

v.

MCDOUGALL.

Patterson J.

I think the case is one in which the purchase of this table from the plaintiffs was to be paid for by the delivery of a certain thing which has not been delivered, and the plaintiffs are entitled to recover the price of the table sold. I think the judgment originally rendered by Mr. Justice James was correct.

Appeal allowed with costs.

Solicitors for the appellants: Henry, Ritchie, Weston &

Henry.

Solicitor for the respondents: Angus McGillivray.

[blocks in formation]

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Life insurance-Warranty-Misstatement and concealment in application-Pleading-Questions at issue-Findings of fact-Amendment-Practice-Successful party moving against findings.

The action was to recover indemnity payable under a bond issued by the defendants to W. The defence alleged that deceased warranted that he was confined to his house by sickness five years before the application, when in fact he had been confined to the house by a severe attack of apoplexy within four years of the application. All the issues were found by the trial judge in favour of the plaintiffs except that as to the date of the attack of apoplexy, and, on the ground that there was misrepresentation as to this fact, he gave judgment for the defendants. On appeal to the full court this judgment was set aside and judgment directed to be entered for the plaintiffs. On appeal to the Supreme Court of Canada,

Held, Gwynne and Patterson JJ., dissenting, affirming the judgment appealed from, (20 N.S. Rep, 347), that there was no statement made by the deceased, although so found at the trial, that the attack of apoplexy occurred five years before the application, nor was that issue raised by the pleadings.

Per Strong, J., that upon the evidence, the merits of the case were not such as to warrant the Supreme Court in allowing a new defence by way of amendment to be set up at this stage.

*XVI. Can. S.C.R. 718.

**PRESENT:-Sir W. J. Ritchie C.J., and Strong, Taschereau, Gwynne and Patterson JJ.

1888

**Nov. 23,24.

1889 **March 18.

1888

MUTUAL

RELIEF

SOCIETY

OF

NOVA SCOTIA

v.

WEBSTER.

Held, per Patterson J., that the defendants' pleading must be treated as asserting that the deceased untruly represented that he had not been confined to his house within five years, and to hold otherwise would be opposed to the spirit of the Judicature Act and would be exceeding the strictness which obtained in the days of special demurrers.

Per Patterson J., the judgment at the trial being in their favour, the defendants could not have moved against it on the ground that the other issues ought to have been found in their favour.

APPEAL from a decision of the Supreme Court of Nova Scotia (a), which reversed the judgment at the trial in favour of the defendants, and directed judgment to be entered for the plaintiffs.

The plaintiff, Helen O. G. Webster, was the widow of John L. R. Webster, late of Yarmouth, physician, deceased, and the defendants were a mutual insurance society doing business in Canada. The application for insurance signed by the deceased contained the following questions and

answers:

"Q. Has the party had, or been afflicted since childhood with any of the following complaints: Apoplexy, bronchitis, coughs, disease of heart, disease of kidney, disease of liver, disease of lungs, fits or convulsions, insanity, palpitation, paralysis, piles, rupture, spinal disease, spitting or raising blood, or any serious disease. Give full particulars of any sickness you may have had since childhood? A. No disease except a slight attack of apoplexy.

"Q. When were you confined to the house by sickness? A. Five years ago.

"Q. Has the party ever been seriously ill? If so, when, with what? A. Apoplexy.

"Q. Is the said party now in good health? A. Yes.
"Q. State name and residence of medical attendant?

A. James Garish, M.D."

And contained the following special warranty:

(a) 20 N.S. Rep. 347.

"It is hereby declared and warranted that the above are in all respects fair and true answers to the foregoing questions; and it is acknowledged and agreed by the undersigned, that this application and warranty are a part of the consideration for, and shall form a part of the contract for indemnity; and that if there be, in any of the answers herein made, any untruth, evasion or concealment of facts, then any bond granted upon this application shall be null and void."

The only reference to the application contained in the policy of insurance, or bond of membership as it was called, was the following:

"This bond of membership witnesseth that the Mutual Relief Society of Nova Scotia, in consideration of statements made in the application herefor, and the payment, etc., etc., do agree to pay to Helen O. G. Webster, etc."

The material part of the statement of defence was the following:

"1. It was an express condition of the said Bond of Membership, and the bond was issued to the said John L. R. Webster upon the express warranty that the said bond should be null and void if any of the answers made in the application for the same should be untrue, evasive, or if the applicant should conceal any facts, and the defendant company says that the said John L. R. Webster in his aplication (which was declared to be part of the consideration for and a part of the contract of indemnity) did make untrue and evasive answers, and did conceal facts in his said application, to wit:

"a. The fact of the day of his birth.

"b. That he had not, nor been afflicted with no disease except a slight attack of apoplexy.

"c. That he was confined to house for sickness five years before said application: when in truth and fact

"a. He was not born on the day mentioned in the said application.

30-SUP. CT. CAS.

1888

MUTUAL
RELIEF
SOCIETY

OF

NOVA SCOTIA

v.

WEBSTER.

« ПретходнаНастави »