Advance Rumely Thresher Co. v. Yorga, [1926] SCR 397

Supreme Court of Canada

Advance Rumely Thresher Co. v. Yorga, [1926] S.C.R. 397

Date: 1926-05-04

Advance Rumely Thresher Co., Inc. (Plaintiff) Appellant;

and

Petrea Yorga (Defendant) Respondent.

1926: February 8, 9; 1926: May 4.

Present: Anglin C.J.C. and Duff, Mignault, Newcombe and Rinfret JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Sale of goods—Steam engine—Purchaser unable to read English—Farm Implement Act, Sask., R.S.S. 1920, c. 128—Requirements of s. 18— Effect of non-compliance with s. 18—Effect of taking, retention, and use, of engine by purchaser.

Section 18 of The Farm Implement Act, Sask. (R.S.S. 1920, c. 128), implies a prohibition against taking a contract for the purchase of a “large implement” from any person who cannot read in English,

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without first having such contract read over and explained to him in a language which he understands. A contract of purchase taken by the vendor without compliance with the section is not enforceable. On the sale of an engine the purchaser, a Roumanian, could not read English. The contract was read to him in English and some explanation given to him in. Roumanian of certain clauses which he said he was unable to understand when read to him in English.

Held (Duff and Newcombe JJ. dissenting) that, upon the evidence in the case, English was not a language which the purchaser “understood” within the meaning of s. 18; that the vendor’s action on the contract could not be maintained; and that, in the circumstances, the vendor could not succeed on an implied contract to take and pay for the engine on a quantum meruit basis. The court did not interfere with the order below enjoining the purchaser, as incident to his obligation, to return the engine and to account for such benefits as had accrued to him from its possession.

Semble, as the purchaser could not understand portions of the contract when read to him in English, the vendor was bound to have the entire contract read and explained to him in some other language (not necessarily this native tongue) which he understood sufficiently to enable him to appreciate the purport and effect of the contract to the extent to which an English-speaking person in his walk of life would be likely to appreciate them upon the contract being read over and explained to him in English.

Per Duff and Newcombe JJ. (dissenting) : On the evidence and findings at trial it must be taken that the contract, previous to its being signed, was read over and explained to the purchaser in a language which he understood sufficiently to become aware thereby of the meaning of the contract, which is all the statute requires.

Per Newcombe J. (dissenting) : If there were any defect in the explanation which the statute contemplates, the contract became thereby no worse than voidable at the purchaser’s option, and, by his length of possession and extent of use of the engine, the purchaser had lost the right of avoidance.

APPEAL from the decision of the Court of Appeal for Saskatchewan[1] which reversed the judgment of Embury J. in favour of the appellant in an action to recover the first instalment of the purchase price of a steam engine sold by the appellant to the respondent under an agreement in writing in the form prescribed by s. 12 of The Farm Implement Act of Saskatchewan (R.S.S. 1920, c. 128). The main questions for the consideration of the court on this appeal were whether, on the facts, there had been compliance with the provisions of s. 18 of The Farm Implement Act (which section provides for what must be

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done in the event of the purchaser not being able to read in the English language, and is set out in full in the judgments) and what are the consequences of non-compliance with such provisions.

Bastedo for the appellant.

Gregory K.C. for the respondent.

The judgment of the majority of the court (Anglin C.J.C. and Mignault and Rinfret JJ. was delivered by

Anglin C.J.C.—The plaintiff company carrying on business at Regina by an agreement in writing in the form prescribed by s. 12 of The Farm Implement Act (R.S.S., 1920, c. 128) purported to sell a Rumeley steam engine to the defendant for the sum of $3,000, payable in three instalments of $1,000 each with interest on the first of October, 1923, the first of October, 1924, and the first of October, 1925, the payments to be secured by lien notes. This action is brought to recover the first of such instalments and interest amounting to $1,028.25. Various defences were pleaded. At the trial, by amendment, the defendant was allowed to set up non-compliance with s. 18 of The Farm Implement Act as a further answer to the plaintiff’s claim.

The learned trial judge found that the requirements of s. 18 had been sufficiently observed and gave judgment for the sum of $1,000 and costs. The Court of Appeal, holding the contrary, dismised the action with costs and ordered repayment of $66 advanced by the defendant for sales tax and delivery up to him of the lien notes, but directed that the defendant should account to the plaintiff for any benefit he may have received from the use of the engine, the amount thereof to be ascertained by the trial judge if the parties should be unable to agree. Special leave to appeal to this court was subsequently granted by the Court of Appeal.

The questions for determination here are the construction of s. 18; whether there has been compliance with its requirements; if not, the effect of non-compliance on the plaintiff’s rights; and, if the contract should be held unenforceable, what rights the plaintiff has arising out of the taking, retention and use of the engine by the defendant.

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Section 18 reads as follows:

18. (1) In the event of the purchaser not being able to read in the _t English language the contract shall, before it is signed by him, be read over and explained to him in a language which he understands, and in such case the burden of proving that the said contract was so read over and explained to him, shall be on the vendor.

(2) An affidavit to the effect that the deponent has, within eight days preceding the taking of the affidavit, read over and explained the contract to the purchaser prior to his signature thereto, in a language which the purchaser understood, shall, upon proof of the signature of the officer before whom such affidavit purports to be sworn and that he was an officer authorized to take such affidavit, be received in evidence in all courts as conclusive proof of all facts sworn to therein.

It is noteworthy that while the consequences of noncompliance with the directions of s. 18 are not stated, such provisions are found in ss. 12 and 28, the former of which declares invalid and ineffective any contract which is not in the form by it prescribed, while the latter declares void at the option of the purchaser any contract, order or security containing certain stipulations which it prohibits.

Nevertheless, when the object of s. 18 is considered and due attention is paid to its provision that the burden of proving compliance with it shall be upon the vendor, the implication of a prohibition against taking a contract for the purchase of “a large implement” from any person who cannot read in English, without first having such contract read over and explained to him in a language which he understands is, we think, indubitable. In the case of such a statutory enactment we doubt whether there is any sound distinction to be drawn between the implied negative requirement that there shall not be a contravention of a positive direction and a direct prohibition, Bensley v. Bignold[2]. The affirmative direction of the enactment now in question is so clearly mandatory and the attainment of its object—the protection of buyers unable to read English —makes the implication of negative words of prohibition so manifestly necessary that

the duty of the courts to try and get at the real intent of the legislature

requires that implication to be made. Liverpool Borough Bank v. Turner[3]; Stevens v. Gourley[4]. Assuming

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for the moment that the contract sued upon was not read over and explained to the defendant (who admittedly could not read English) as the statute prescribed, we have here a contract to the enforcement of which by the vendor no court of justice should lend its aid. Cope v. Rowlands[5]; Forster v. Taylor[6]; Melliss v. Shirley Local Board[7]. In his esteemed work on the Principles of Contract, Sir Frederick Pollock says, 9th edition, at p. 361:

When conditions are prescribed by statute for the conduct of any particular business or profession, and such conditions are not observed, agreements made in the course of such business or profession—

(e) are void if it appears by the context that the object of the legislature in imposing the condition was the maintenance of public order or safety or the protection of the persons dealing with those on whom the condition is imposed.

Moreover, although the contract should not be avoided, it would almost seem to be an inevitable implication of the provision that

the burden of proving that the said contract was so read over and explained to him shall be on the vendor,

that in the event of his failing to discharge such burden any curial proceeding on his part based upon the contract must fail.

But was there non-compliance with s. 18? The contract was read to the defendant only in English. There is no suggestion that it was read in any other language. Some explanation was given to him in Roumanian (his native tongue) of certain clauses which he said he was unable to understand when read to him in English. The learned trial judge found that the defendant “understood English to a considerable extent”; that he “could understand it to some extent”; and again that of English “he had some knowledge”. In the Court of Appeal Mr. Justice Lamont’s view was that the defendant “understood (English) only to a slight extent”. Our appreciation of the evidence on this point accords with that of Lamont, J. A. We think that English was not a language which the defendant understood within the meaning of s. 18. Furthermore, we incline to the view that the defendant being unable to understand portions of the contract when read to him in

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English, the vendor was bound to have the entire contract read to him and explained to him in some other language (not necessarily, however, his native tongue) which he understood at least sufficiently to enable him to appreciate the purport and effect of the contract to the extent to which an English-speaking person in his walk of life would be likely to appreciate them upon the contract being read over and explained to him in English. We find ourselves in accord with the views expressed by Mr. Justice Lamont on this aspect of the case, and we are of the opinion that the plaintiff’s action on the contract cannot be maintained.

Under the circumstances of this case we think that the plaintiff cannot succeed on an implied contract to take and pay for the engine on a quantum meruit basis. The taking, retention of possession and use of the engine were attributable to the unenforceable contract sued upon. The defendant would appear not to have had any idea of his right to set up the invalidity of that contract for non-compliance with s. 18 of The Farm Implement Act until at or about the time of the trial of this action. Britain v. Rossiter[8], We are not disposed to interfere with the order enjoining, the defendant, as incident to his obligation to return the, engine, to account for such benefits as may have accrued to him from its possession. On this aspect of the case we accept the judgment of Mr. Justice Martin.

The appeal fails and should be dismissed with costs.

Duff J, (dissenting).—I concur with the view of my brother Newcombe that the contract was adequately explained to the respondent and understood by him, and that there was substantial compliance with the requirements of the statute. As to the effect of non-compliance, I prefer, to express no decided opinion.

Newcombe J. (dissenting).—The appellant (plaintiff) sues to recover the amount of a lien note, $1,000, and $28.85 for interest, made by the respondent (defendant) to secure an installment of the price payable by him upon the purchase of a Rumely steam engine, evidenced by statutory agreement in writing, dated 21st July, 1923. The statement of claim was delivered on 30th November, 1923, and the action came to trial on 6th December, 1924.

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The question in controversy depends upon the facts and the effect of s. 18 of the Farm Implement Act, 1917, of Saskatchewan, consolidated as c. 128 of the Revised Statutes, 1920. This Act, as its title denotes, regulates the sale of farm implements in the province; the engine which was the subject of the sale is a machine of the class which is described as “large implements”. The Act requires that, all vendors selling, or offering for sale, large implements in Saskatchewan shall file with the Minister of Agriculture in each year a description of the implements offered for sale, with the statutory particulars, including prices; also a list of all repairs required for the implements sold by them, stating the prices and places in Saskatchewan where they may be purchased, and a penalty is provided for neglect to file the list; also, by s. 11, it is enacted that no repairs shall, be sold at a higher price for cash than the price stated in the list, and that any person charging a higher price shall be guilty of an offence, and liable upon summary conviction to a fine of $25.

Section 12 provides that no contract for the sale of any large implement shall be valid, and no action shall be taken in any court for the recovery of the whole or part of the purchase price of any such implement, unless the contract be in writing in form A in the schedule, and signed by the parties thereto. The contract was in the statutory form, There is another form, C, in the schedule which applies to the sale of second-hand implements; by s. 16, it is provided that the latter form shall not be used for the sale of new implements, and that,

in case such form is so used, the contract shall be void at the option of the purchaser.

In form A, the vendor warrants that the machinery is well, made and of good materials; that it will work well; be durable; that all necessary repairs will be available for ten, years, etc. In form C, no warranties are set out, and it is expressly stipulated that the vendor gives no warranties other than those, if any, which are specially agreed for. By s. 17, it is provided that form A, shall not be used for second-hand or rebuilt implements,

but, in case such form is so used, then the same shall be conclusive evidence that the implement so sold is, or is warranted to be, a new one.

Section 18 follows, and it is embraced in two subsections, the one for the benefit of the purchaser, and the other for

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the benefit of the seller. The section may conveniently be reproduced:

18. (1) In the event of the purchaser not being able to read in the English language the contract ehall, before it is signed by him, be read over and explained to him in a language which he understands, and in such case the burden of proving that the said contract was so read over and explained to him shall be upon the vendor.

(2) An affidavit to the effect that the deponent has, within eight days preceding the taking of the affidavit, read over and explained the contract to the purchaser prior to his signature thereto, in a language which the purchaser understood, shall, upon proof of the signature of the officer before whom such affidavit purports to be sworn and that he was an officer authorized to take such affidavit, be received in evidence in all courts as conclusive proof of all the facts sworn to therein.

Section 19 provides that

the signing of such contract by the purchaser shall not bind him to purchase the implement * * *

until the contract shall have been signed by the vendor or, his agent

and a copy thereof is delivered to or deposited in a post office addressed to the purchaser, postage prepaid and registered.

This evidently refers to the contract mentioned in subs. 1 of s. 18 which the purchaser cannot read in English, and it will be observed that it applies to all such contracts; there is no express exception of those which have not been read over and explained.

Section 28 is not without some relevancy; it provides that no contract made in connection with the sale of agricultural implements shall contain any statement to the effect that the vendor is not responsible for the representations of his agents, or any other language in anywise limiting or modifying the legal liability of the vendor as provided in the Act or the forms, and it is said that

the insertion of any such statement, or the use of any such language, shall be of no effect.

Then follows subs. 2, whereby it is provided that

any breach of the provisions of this section shall render the contract, order or security, void at the option of the purchaser.

The respondent by his defence denied the making of the agreement and the delivery of the engine, and he alleged that the engine delivered was not a new machine, and that, immediately upon discovering this, he advised the appellant, and asked for a return of the notes which he had given to accompany the contract. He alleged further that the respondent, at the time of making the contract,

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falsely and fraudulently represented to him that the engine was a new engine of the latest model, and that he executed the contract so believing, whereas the engine was not new, nor of the latest model; and he submitted to return the engine, and claimed the return of his notes. These issues were rightly determined against the respondent at the trial, and are not controverted at bar upon this appeal. The learned trial judge found that there were no misrepresentations; that the engine, although six years in stock had not been used; was not second-hand; that it was a good engine, and that

the results of its work showed that it performed the work it was called upon to do in a satisfactory manner, such as would be expected of a new engine.

The only other question is one raised by amendment at the trial, on 6th December, 1924, that the defendant,

not being able to read in the English language, the contract was not read over to him as required by s. 18 of the Farm Implement Act.

It becomes necessary to decide whether, having regard to the true interpretation of this section and the evidence and findings, the right of recovery is defeated by reason of the facts with relation to the reading and explanation of the contract before its signature.

As to this defence, the learned trial judge found that:

The evidence established that he (the respondent) carried on the ordinary small transactions in which he might be engaged, without the aid of an interpreter. He told the interpreter, who was present to explain the contract before it was signed, “he could understand but he could not talk back.” As a fact in this case the defendant appears to have understood the meaning of the contract. True, he cannot read English, but he can understand it to some extent, and he received in another language of which he had a more complete understanding all the explanation that was necessary to give him a knowledge of the contents of the document; and he could have had an explanation in this last-mentioned language of every phrase in the contract, but as he said to the interpreter, he “understood but could not talk back.” In all the circumstances, the defendant apparently having in fact understood, and not having been deceived, and having received all the explanations he was desirous of having, and in the ‘additional circumstances of his having had a considerable knowledge of the English language, it seems to me that there was a sufficient compliance with the provisions of section 18, subsection 1, of the Farm Implements Act above referred to—certainly there was compliance with the spirit of the law.

Learned counsel for the defence urged with some force that section 18, subsection 1, was enacted for the protection of men such as the defendant, and that it was designed to compel the interpreting and reading of this document to such persons in their own foreign native tongue; but in this case the document was read in English, of which he had some knowledge, and those parts of it which he understood after

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hearing them in English were not interpreted, but the other parts which he did not understand were explained to him in his own language, which in my opinion constitutes sufficient interpretation.

The Court of Appeal was however of the opinion that, the respondent being unable to read English, there had been in fact no compliance with the legislative requirement that the contract should be read over and explained in a language which the purchaser understood before it was signed by him, and that this

prevented any contract from coming into existence or any property passing under the agreement signed.

Now while the question of statutory intention is not free from difficulty, it appears to me that s. 18 of the Farm Implement Act is not designed to make utterly void a contract executed in the manner in which this one was executed. There is no penalty imposed for neglect to comply, neither is there any enactment as to what shall be the consequence of non-compliance. In order to ascertain the meaning, the other provisions of the Act may be considered, and, in ascertaining what is left to implications, s. 18 must be interpreted in the light of the inferences which may be legitimately drawn. We have seen that in other sections there are express declarations as to what the effect of noncompliance shall be. There is a pecuniary penalty, recoverable upon summary conviction, for neglect to file a list of implements, and another for overcharging for repairs. It is declared that no contract for the sale of a large implement shall be valid or enforcible unless the contract be in writing in the prescribed form and signed by the parties; that a contract for the sale of a new implement in the form prescribed for the sale of second-hand implements shall be void at the option of the purchaser; that if the form for sale of large implements be used for second-hand or rebuilt implements it shall be conclusive evidence that the implement so sold is, or is warranted to be, new; that, if any contract contain a statement to the effect that the vendor is not responsible for the representations of his agents, that shall have no effect, or render the contract void, at the option of the purchaser, and moreover, by s. 30, it is provided that certain explanatory words in the forms are merely directory.

Thus we have, in this short statute of thirty-one sections, a number of provisions, mandatory in form,

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affecting the substance or contents of the contract, and visited by a variety of consequences, expressly declared, which include a pecuniary penalty; some that may be fatal to the validity of the contract; others which may be insisted upon only at the purchaser’s election, and others which do not affect the operation of the instrument; but, as to the particular enactment in question, which prescribes a requirement to be observed in the making of the contract in special cases, while there is no express penalty for neglect, it is declared that the burden to prove compliance is placed upon the vendor, and that the purchaser is not to be bound until the contract shall have been signed by the vendor, and a copy delivered or posted to the purchaser. The consequence of non-compliance should, in the absence of expression, be ascertained reasonably, having regard to the apparent object of the clause in this particular statute. Section 18, subs. 1, is obviously intended to furnish a direction as to the manner of making the contract when the purchaser is unable to read English, and the effect of it, so far as declared, is, in such a case, if the issue be raised, to impose a burden of proof upon the vendor to show that the contract was read over and explained to the purchaser in a language which he understood, and, together with s. 19, to postpone the obligation of the purchaser until the signing of the contract and delivery or posting of a copy by the vendor. The transaction itself is perfectly legal. It is not like a case of a contract declared to be illegal, as under the Gaming Acts or the Marine Insurance Act, where the court is bound to take notice and pronounce the illegality. The plaintiff may fail in his action if he do not, when the reading and explanation is denied, satisfy the burden of proof with which he is charged by the statute, but not because of any vice of the contract itself. Wetherell v. Jones[9]. Indeed, so far from evincing an intention that the contract shall be void for lack of reading and explanation, it is expressly provided, by subs. 2, that an affidavit to the effect that the deponent, within eight days previously, read over and explained the contract to the purchaser, prior to his signature, in a language which the latter understood, shall, upon

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proof of the signature and authority of the attesting officer, be received in evidence as conclusive proof of all the facts sworn to therein. The provisions of this section, taken as a whole, are thus in effect apt to operate for the benefit of the vendor at least as much as for that of the purchaser, since they include a very convenient and effectual means whereby the vendor may conclusively silence any controversy as to the reading of the instrument and the understanding of the purchaser of the language in which it was read and explained. The provision of subs. 2 seems inapt to accompany a clause making void for motives of public policy a contract which a purchaser is willing to accept.

Moreover the provision which requires reading and explanation must be applied having regard to the facts of the particular case; the extent or character of the explanation must necessarily be affected by the needs or circumstances of the case. No public duty or claim of society is prejudiced by withholding explanation of what is already understood, and if, as is found, the purchaser, appearing to understand, received all the explanation which he desired, and which was necessary to enable him to understand the contract, it would seem to be unjust that he should, after taking the benefit of the contract, be permitted to avoid it for lack of explanation, and this I think is true apart from the application of the rule which is sanctioned by the maxim cuilibet licet renuntiare juri pro se introducto.

Now, although no affidavit was introduced, facts are proved and found by the trial judge which satisfy the burden of proof as to the reading and explanation. I accept the findings upon the evidence; they are reasonably supported by the proof, and therefore ought not to be disturbed. I cannot agree that it is necessary, in order to satisfy the statute, that the contract should be read in the purchaser’s native tongue, or in a language other than English, provided he have an adequate understanding of the latter. The purchasers who share in the benefit of the section are not of a class from which the legislature would expect anything better than an imperfect, though practical, knowledge of language; it applies as well to the illiterate Canadian or Englishman as to the foreigner, and

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it is utterly indifferent in what language the contract is read and explained if that language be sufficiently familiar in its reading to give the purchaser an understanding of the stipulations. The reading undoubtedly took place. There, was no attempt to defraud or to over-reach. The respondent, although he could not read English, was in the habit of transacting his business orally in that language, and it was the speech of the community in which he had lived for fifteen years. He had been for one year a pound-keeper. He had a large family of children, including some boys who had been at school and could read and speak English. One of these was a grown up son, who, I suppose, might -conveniently have accompanied his father, when he went to buy a steam engine, if the latter had considered himself in any difficulty about the language. At his examination for discovery, his son was his interpreter. At the trial the respondent pretended that he did not understand the meaning of simple questions in English, but the judge evidently considered that this was pretence; and, at the conclusion of the trial, he said he thought the respondent spoke English about as well as Bodgan, the Roumanian who was called in to interpret at the making of the contract, which, as he observed, was not very well. Bodgan, was a young Roumanian who had been brought up in Canada and lived here for twenty years. He was called in on the occasion of the making of the contract to assist in the negotiations. He was not a skilled interpreter, his knowledge of English was indeed somewhat meagre, but he appears to have had a practical working knowledge of both languages, and, when the contract was read, he did explain or interpret some of the passages, and would have given further explanations, but that the respondent appeared to understand and gave his assurance that he did so.

It is a fact moreover, not immaterial to the respondent’s understanding of the contract, that he had previously signed similar contracts under the Farm Implement Act. He was a Roumanian immigrant who came to the country in 1908. He had previously purchased farm machinery, an American-Abell engine in 1912, a separator in 1916, and a gas tractor in 1920, and he was not unaccustomed to contracts and lien notes. Although he received copy of the contract for the engine in question early in August, 1923, and it has ever since been in his possession, he testified that he had

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never discussed the terms of it with anybody. Maloney, the appellant’s agent, who negotiated the sale to the respondent, had conversed with the latter in English as long ago as 1913, and the preliminary conversation was, on the occasion of the present sale, carried on between the respondent and Maloney in English. It must be remembered also that the respondent’s defence is not that he did not understand the contract, or the reading of it in English, but that the contract was not read to him in any language; there is however the evidence of three witnesses for the appellant that the contract was read; the trial judge finds that it was read; and he expressly rejects the testimony of, the respondent as to the condition of the engine, where it is contradicted by the witnesses for the appellant. There was considerable evidence adduced for the appellant, uncontradicted by the respondent, of the latter’s understanding of English in reference to various transactions in which he had been concerned, and the learned judge, whose findings upon this branch of the case are I think of special weight, refers to his statement to Bogdan, which is not explicitly denied, that “he could understand but could not talk back”.

Therefore I think it must be taken that, previously to the signing of the contract, it was read over and explained to the respondent in a language which he understood sufficiently to become aware thereby of the meaning of the contract; and that I think is the object of the legislature, and all that the statute requires.

It was on 21st July that the contract was signed. It calls for delivery of one 16 H.P. D. C. Rumely steam engine, rear mounted, with standard equipment, and the purchase of an engine of that description is admitted by the respondent. There is no dispute about the terms of the contract, no charge that the respondent did not perfectly understand the transaction. His complaint is that the engine which was delivered was one which had been previously in use or second-hand, an objection which has nothing to do with, the terms of the contract, and that objection was communicated by the respondent to the appellant by telegram of 12th October, 1923, when the respondent, after having used the engine for his own harvest and for that of some of his neighbours, the season’s work being then nearly completed,

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sent to the appellant company the following message:

Engine sold this fall as new one send a man at once to settle up matter for this engine having been sold as new one and we found that she had been in use already look over before threshing done we can prove that it is a second-hand one.

The engine had been shipped in due course from Regina to the respondent at Limerick, where it arrived about 5th August. The respondent examined it for two hours on the flat car before unloading it. Then he paid the freight took it home and began his threshing on 6th September. The appellant company had sent him, by registered post on 8th August, a copy of the contract as required by s. 19 of the Farm Implement Act. Thus, not only is it found that the respondent understood, but he took possession of the machine, and, although he was furnished with copy of the contract as the statute requires, and is presumed to know, the law, he used the engine for the season, threshing 24,-500 bushels of grain, and gave no notice of intention to assert the alleged statutory invalidity of the contract until the trial of the action.

I think there was a contract, and that the appellant satisfied the burden of proof. Moreover I think that, if, there were any defect in the explanation which the statute contemplates, the contract became thereby no worse than voidable at the purchaser’s option, and that, after having possession of the engine for a year and more, and having used it to the extent to which he did use it, it is too late for the purchaser to exercise the right of avoidance.

Appeal dismissed with costs.

Solicitors for the appellant: Mackenzie, Thom, Bastedo and Jackson.

Solicitor for the respondent: C. E. Gregory.