and, having express permission to take it out on the afternoon of the day in question, he was on his master's business, though he made a detour to give a ride to his friends, according to the doctrine of Joel v. Morison, 6 C. & P. 501, which stands approved in many cases: Whatman v. Pearson (1868), L.R. 3 C.P. 422; and Burns v. Poulsom (1873), L.R. 8 C.P. 563, 567. As in Venables v. Smith (1877), 2 Q.B.D. 279, 281, "he was on his way home, though he went in a somewhat roundabout way," in order to gratify his friends; and the motor was entrusted to his general care: Sleath v. Wilson (1839), 9 C. & P. 607. Besides this, I am inclined to hold that, having regard to the provisions of the Act, as to registration of the owner, the carrying of a number on the machine for the purpose of identification, and the permit granted on those conditions, as between the owner and the public, the chauffeur or driver is to be regarded as the alter ego of the proprietor, and that the owner is liable for the driver's negligence in all cases where the use of the vehicle is with the sanction or permission of the proprietor. In driving the motor he is within the ostensible scope of his employment, and the liability will remain by virtue of the statute, and this even though the driver may be out on an errand of his own. It was open for the jury to find that the Act had been violated as to the requirements of sec. 5 (which provides that the horn is to be sounded whenever it shall be reasonably necessary to notify pedestrians or others of the approach), and also as to the requirements of sec. 7, in that the motor was handled in a manner dangerous to the public, having regard to all the circumstances of the case, the crowds, etc. As to such and other violations, the owner of a motor for which a permit is issued "shall be held responsible": sec. 13. That would cover responsibility in regard to fines and penalties imposed by the Act, and may it not also civil responsibility for damages? Section 12, which precedes this section as to responsibility, incorporates the provisions of the Act relating to Travelling on Public Highways, one section of which, sec. 14, is important in this relation. That declares "that no such fine or imprisonment shall be a bar to the recovery of damages by the injured party before a Court of competent jurisdiction." The collocation of the sections suggests that a liberal reading is to be given to the "responsibility" clause--as is, indeed, the general D. C. 1908 ΜΑΤΤΕΙ V. GILLIES. Boyd, C. D. C. 1908 ΜΑΤΤΕΙ V. GILLIES. canon to be observed in the interpretation of the revised and other statutes: 7 Ed. VII. ch. 2, sec. 7, sub-sec. 41 (0.).* This clause as to general responsibility for the negligent conduct of this swift and noiseless source of danger on the streets is not unique or even singular. In several of the States of the American Union similar or analogous provisions are to be found. Thus, in North Dakota it is enacted in one section, sec. 5, that any person, whether driver or operator of the automobile, or the owner thereof, whose agent the driver or operator shall be, who shall violate any of the provisions of the Act, shall be punished by fine; and, in addition, the owner shall be liable for damages in a civil action to any person injured by reason of such violation: Huddy's Law of Automobiles, p. 263. In Tennessee it is provided by statute that wherever a suit for damages is brought for injuries caused by the running of a motor in violation of the Act, there shall be a lien on the machine for the satisfaction of the amount recovered, whether the automobile at time of injury was driven by the owner or by his chauffeur, agent, employee, servant, or any other person using the same by loan, hire, or otherwise (sec. 5): Huddy, p. 298. A similar lien is given on the automobile by the state of Virginia (sec. 12): Huddy, p. 310; and sec. 4, Act of 1902: Huddy, p. 313. By the statute of Kentucky a lien is made to attach on the vehicle which causes the injury or damage, in a suit for damages against any one who violates the provisions of the Act (sec. 7): Huddy, p. 167. Reference may be also made to the provisions of the English Hackney Carriage Acts, as expounded in the cases King v. London Improved Cab Co. (1889), 23 Q.B.D. 281, 283; and Venables v. Smith, already cited; Keen v. Henry, [1894] 1 Q.B. 292. Altogether there is no reason to disturb the verdict and the judgment under appeal, and it will stand affirmed, with costs. A. H. F. L. * 7 Edw. VII., ch. 2, sec. 7, sub-sec. 41 (0.):-"Every Act and every provision or enactment thereof shall be deemed remedial, whether its immediate purport be to direct the doing of anything which the Legislature deems to be for the public good, or to prevent or punish the doing of anything which it deems to be contrary to the public good; and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act, and of the provision or enactment, according to the true intent, meaning and spirit thereof." [IN THE COURT OF APPEAL.] FOSTER V. ANDERSON. Vendor and Purchaser-Contract for Sale of Land-Time of Essence-Time for the The contract for the sale and purchase of land set up by the plaintiff, Among the words of description of the parcel of land in question, the contract Held, that there being a description which identified the parcel without the aid of the street number, the words quoted might be rejected as surplusage, and there remained sufficient, with parol evidence, to satisfy the Statute of Frauds; OSLER, J.A., dubitante. Held, also, upon the evidence, that misrepresentation and mistake such as would afford ground for refusing specific performance were not shewn. Judgment of a Divisional Court, 15 O.L.R. 362, awarding specific performance, affirmed. AN appeal by the defendant from the judgment of a Divisional Court, 15 O.L.R. 362, reversing the judgment of Riddell, J., at the trial, and awarding the plaintiff (purchaser) specific performance of a contract for the sale and purchase of land. The appeal was heard by Moss, C.J.O., OSLER, GARROW, MACLAREN, JJ.A., and ANGLIN, J., on the 18th and 19th February, 1908. G. H. Watson, K.C., and F. J. Roche, for the defendant. Specific performance should not have been ordered. The defendant does not charge the agent with fraud, but with a material misrepresentation. It may have been an innocent one, and yet sufficient to prevent the enforcement of the contract: Drysdale v. Mace (1854), C. A. 1908 April 21. C. A. 1908 FOSTER V. ANDERSON. 5 De G. M. & G. 103; Tamplin v. James (1880), 15 Ch. D. 215; Wilde v. Gibson (1848), 1 H.L.C. 604, 632; Mullens v. Miller (1882), 22 Ch. D. 194; Adam v. Newbigging (1888), 13 App. Cas. 308. The trial Judge does not find fraud, but he makes no finding as to whether there was an innocent misrepresentation. The Court should now find that the misrepresentation was a material one, and that the defendant acted under a mistake in respect of it. Time was of the essence of the contract; the circumstances of the case require that the contract should be so interpreted: Hudson v. Temple (1860), 29 Beav. 536; Hipwell v. Knight (1835), 1 Y. & C. Ex. 401, 416; Venn v. Cattell (1872), 27 L.T.R. 469; Gray v. Smith (1889), 43 Ch. D. 208, 214; Lloyd v. Collett (1793), 4 Bro. C.C. 469; Pomeroy on Contracts, ed. of 1897, p. 472; Brooke v. Garrod (1857), 3 K. & J. 608, 2 De G. & J. 62; Parkin v. Thorold (1852), 16 Beav. 59; Oakden v. Pike (1865), 34 L.J. Ch. 620; Wallace v. Hesslein (1898), 29 S.C.R. 171; Robinson v. Harris (1892), 19 A.R. 134; Harris v. Robinson (1892), 21 S.C.R. 390; Crossfield v. Gould (1883), 9 A.R. 218; Nason v. Armstrong (1894), 21 A.R. 183; Armstrong v. Nason (1895), 25 S.C.R. 263. The performance of the contract has been waived: Dalrymple v. Scott (1892), 19 A.R. 477; Johnstone v. Milling (1886), 16 Q.B.D. 460. In the absence of agreement to the contrary, the purchaser must prepare and tender the deed: Mooney v. Prevost (1873), 20 Gr. 418; Boulton v. Hugel (1874), 35 U.C.R. 402, 407; Stevenson v. Davis (1893), 23 S.C.R. 629. In the Court below the Chancellor relies on Upperlon v. Nickolson (1871), L.R. 6 Ch. 436, 443, and Price v. Williams (1836), 1 M. & W. 6, 13; but the words used are different, and these cases are not binding on this Court. As to delay, see Bradley v. Elliott (1906), 11 O.L.R. 398, 402; Burns v. Boyd (1860), 19 U.C.R. 547; Denny v. Hancock (1870), L.R. 6 Ch. 1. The defendant is not in default. There is here no act or omission which leaves her subject to criticism as to good faith or proper conduct. There is not a sufficient description of the lands in the contract. See Knapp v. Carley (1904), 3 O.W.R. 940; McClung v. McCracken (1882-3), 2 O.R. 609, 3 O.R. 596; McCarthy v. Cooper (1885), 12 A.R. 284. There is a discretion in the Court. to refuse to award specific performance, and it should be exercised in this case: Harris v. Robinson, 21 S.C.R. 390; Coventry v. McLean (1892), 22 O.R. 1; Lamare v. Dixon (1873), L.R. 6 H.L. 414; Walker-Parker Co. v. Thompson (1906), 7 O.W.R. 125; Murray v. Jenkins (1898), 28 S.C.R. 565; Sweeney v. Coote, [1906] 1 I.R. 51, 101. The defendant was also under a mistake as to the circumstances, and so much so that the plaintiff will not order her to convey her property: on this we refer to the correspondence and evidence. As a matter of fact, the property was not vacant, though she thought it was. The A. H. Marsh, K.C., and W. J. Clark, for the plaintiff. defence of mistake is now heard of for the first time. If there was any mistake, it was not patent, it was unilateral, and was not induced by the plaintiff. Such a mistake will be a defence only when the conscience of the Court is shocked. See Tamplin v. James, 15 Ch. D. 215; Van Praagh v. Everidge, [1902] 2 Ch. 266. The alleged misrepresentation was immaterial, and had nothing to do with the defendant's attempt to get free from her contract. If there was any misrepresentation, it was made by the defendant's own agent, and the plaintiff had nothing to do with it. But there was in fact no misrepresentation at all, as was determined by the trial Judge. Time was not made of the essence of the contract in question. It is true that time was expressly made of the essence of the offer, but it was not made of the essence of the contract, which would come into existence upon the offer being accepted. At common law time is always of the essence of the contract, but in equity it is not so, unless the subject matter of the contract is such that the Court will read into the contract an implication that time is to be of the essence, or, unless, upon the face of the contract, it is most clearly, unequivocally, and unmistakably shewn by the stipulation that time is to be of the essence: Parkin v. Thorold, 16 Beav. at p. 65; Pomeroy on Contracts, 2nd ed., secs. 390, 392; Sugden on Vendor and Purchaser, 14th Eng. ed., ch. 6, sec. 111, paragraph 13; Webb v. Hughes (1870), L.R. 10 Eq. 281, 286; Crabbe v. Little and Moses v. Little (1907), 14 O.L.R. 631; Bowerman v. Fraser (1907), 10 O.W.R. 229, 232. The latter case was subsequently reversed by the Court of Appeal upon another point, but the question of time being of the essence was not touched upon: (1907), 10 O.W.R. 729. The delay was not caused by the plaintiff. The Statute of Frauds has been satisfied by the written contract and the oral evidence, which was admissible to identify the land: Plant v. C. A. 1908 FOSTER V. ANDERSON. |