Supreme Court of Canada
London and Lancashire Fire Insurance Co. v. Veltre, (1918) 56 S.C.R. 588
Date:1918-06-25
London and Lancashire Fire Insurance Company (Defendants) Appellants;
and
F. Veltre (Plaintiff) Respondent.
1918: June 17, 25.
Present: Sir Charles Fitzpatrick C.J., Idington, Anglin and Brodeur JJ. And Cassels J. ad hoc.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Insurance—Condition of policy—Notice of cancellation—Return of unearned premium—Notice and tender by mail—Receipt by insured.
In the statutory conditions indorsed on a policy of insurance against fire condition 11 provides that “the insurance may be terminated by the company by giving seven days’ notice to that effect and * * * by tendering therewith a ratable proportion of the premium paid for the unexpired term calculated from the termination of the notice.” By condition 15 “any written notice to the assured may be by registered letter addressed to him, etc.”
Held, that the notice of cancellation of the policy may be given by registered letter addressed to the assured as required by condition 15 and the terms of condition 11 as to rebate are complied with if the money for the unearned premium is enclosed with the notice in an envelope so properly addressed and registered.
Held, however, that the cancellation of the policy will not be effected unless the notice and money are actually received by the assured before a loss under the policy occurs.
Held, per Brodeur J., that the unearned premium must be personally tendered to the assured. Judgment of the Appellate Division, 40 Ont. L.R. 619; 39 D.L.R. 221, affirmed.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario, reversing the judgment on the trial in favour of the defendants.
The appellant by its policy dated 15th June, 1916, insured the respondent for one year from 17th June, 1916, to the amount of $1,500.00 against loss or damage by fire in respect of the stock of merchandise and store
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furniture and fixtures in the respondent’s premises on Claremont street in the town of Thorold. A cash payment of $22.50 was made.
The policy was by its express terms subject to the statutory conditions set forth in section 194 of the Ontario Insurance Act, R.S.O. 1914, ch. 183. Among these conditions are the following:—
“11. The insurance may be terminated by the company by giving seven days’ notice to that effect, and, if on the cash plan, by tendering therewith a ratable proportion of the premium paid, for the unexpired term, calculated from the termination of the notice, and the policy shall cease after such notice or notice and tender as the case may be, and the expiration of the seven days.
“15. Any written notice to the assured may be by letter delivered to the assured or by registered letter addressed to him at his last post office address notified to the company or where no address is notified and the address is not known, addressed to him at the post office of the agency, if any, from which the application was received.”
On the 15th day of December, 1916, the appellant sent by registered letter addressed to the respondent at her proper street address at Thorold a notice in the following terms:
Dear Sir,—I beg to hand you enclosed herewith in legal tender the sum of $11.34 being the unearned premium for balance of the current. term of Policy No. 10514765 of this company issued to you dated June 17th, 1916, expiring June 17th, 1917, covering $1,200 on groceries, meats, cigars and tobacco and $300 on store furniture and fixtures, including refrigerator, cheese-cutter, shelving, electric fans, clock, table and stove, all while contained in the 3 storey brick building, occupied as laundry, grocery store, hall and dwelling situate as above, which is hereby cancelled and this company will not be held liable should any loss occur after the 22nd December, 1916.
Yours truly,
ALFRED WRIGHT,
Manager.
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Enclosed with the notice was $11.34 in legal tender to cover the ratable proportion of the cash premium paid for the unexpired portion of the term.
On the 25th day of December, 1916, during the absence for some days of the respondent, a fire occurred by which the insured property was destroyed.
The respondent had not in fact received the notice of cancellation although it arrived at Thorold in due course of post. The respondent is an Italian married to one Sam Savino. According, it is said, to the custom of her people, she retained after marriage her maiden name of Veltre but among the English-speaking people of Thorold, including the postmaster and his clerks, she was known only as Mrs. Savino. Letters are not delivered at Thorold but must be called for at the post office. The respondent’s husband had taken a box at the post office in his own name, although he himself was not in business, but, as the name of Veltre was not identified with him or his wife in the minds of the people at the post office, no notice was placed in his box of the arrival of the registered letter. Under these circumstances, knowledge of the letter did not reach the respondent or her husband until after the. fire, when they were told by the insurance agent that such a letter had been sent.
The appellant claimed that the mailing of the notice with the money to be returned, operated as a cancellation of the policy according to its terms, relying upon the conditions hereinbefore set forth. Action was brought upon the policy and the trial judge gave effect to the appellant’s contention and dismissed the action. The Appellate Division (Meredith C.J.O. dissenting), has reversed the judgment holding that the mailing of the notice and the enclosing of the money therewith did not effectually cancel the policy.
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R. S. Robertson for the appellants. The notice and tender complied with the requirements of condition 11 and were effective from the date of mailing. Mercantile Investment Co. v. International Co. of Mexico; Union Fire Insurance Co. v. Fitzsimmons; In re Simmons and Dalton; Bruner v. Moore. See also Maldover v. Norwich Union Fire Ins. Co.
A. C. Kingstone for the respondent referred to Bank of Commerce v. British America Assur. Co.; May on Insurance (4th ed.) par. 67k.
THE CHIEF JUSTICE.—I concur in the opinion stated by Mr. Justice Anglin.
IDINGTON J.—This appeal ought to turn upon the construction of two conditions indorsed upon the policy of insurance in question and the application of the relevant facts.
The respondent, an Italian woman, whose maiden name was Franzesco Veltre, entirely ignorant of English, married one Savino, carried on with his assistance a shop in Thorold and obtained from appellant an insurance against fire upon the contents thereof for a year from the 17th June, 1916, which were consumed by fire on the 25th December following.
The policy was issued to F. Veltre, Esq., and had indorsed amongst other conditions the following:—
11. The insurance may be terminated by the company by giving seven days’ notice to that effect, and, if on the cash plan, by tendering therewith a ratable proportion of the premium paid for the unexpired term, calculated from the termination of the notice, and the policy shall cease after such notice or notice and tender as the case may be, and the expiration of the seven days.
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15. Any written notice to the assured may be by letter delivered to the assured or by registered letter addressed to him at his last post office address notified to the company or where no address is notified and the address is not known, addressed to him at the post office of the agency, if any, from which the application was received.
The appellant decided to avail itself of the said No. 11 condition and sent a registered letter enclosing the money mentioned and addressed as set forth therein, which letter reads as follows:—
London & Lancashire Fire Insurance Co. Limited of Liverpool,
England.
Canada Branch, Toronto, Ont.
Toronto, 15th December, 1916.
F. Veltre, Esq.
82-84-86 Claremont St.,
Thorold, Ont.
Dear Sir.—I beg to hand you enclosed herewith in legal tender the sum of $11.34 being the unearned premium for balance of the current term of Policy No. 10514765 of this company issued to you dated June 17th, 1916, expiring. June 17th, 1917, covering $1,200 on groceries, meats, cigars and tobacco and $300 on store furniture and fixtures, including refrigerator, cheese-cutter, shelving, electric fans, clock, table and stove, all while contained in the three storey brick building, occupied as laundry, grocery store, hall and dwelling situate as above, which is hereby cancelled and this company will not be held liable should any loss occur after the 22nd December, 1916.
Yours truly,
ALFRED WRIGHT,
Manager.
The letter never was received by respondent till some time after the fire.
The appellant contends it was by such a letter so addressed, being so sent, relieved from any possible claim under the policy.
There never was any address notified to the company within the language of condition No. 15 and I cannot think that it was entitled to assume that such an address as used could be effective for such a purpose.
If the sender had tried to have a letter miscarry he could hardly have done better.
Either the correct address was known or unknown.
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If known it should have been sent correctly addressed and not sent to a woman with the addition of “Esq.” If unknown it should, in order to comply with the condition, if available to it, have been sent to Merritton.
That might not have been any more successful in reaching the respondent.
I do not feel called on to express any opinion upon the question of what the result might have been if the letter had been properly addressed within the meaning of any alternative in condition No. 15.
I should be the more reluctant to do so seeing there are no less than four other conditions indorsed on the policy each involving the question of how written notice from the company may in certain cases respectively affect the legal relations of insurer and insured.
It may well be that condition No. 15 is intended to become operative only in regard to any one of three of these other conditions and yet ineffective in the case of tendering money.
In confining myself to the narrow issue I have dealt with I am only adhering to an observance of the issue joined by the pleadings.
And I am by no means troubled over the suggestion of appellant’s counsel that respondent is incorrectly described in the policy. She is the person insured, no matter how blunderingly described by appellant.
The appeal should be dismissed with costs.
ANGLIN J.—This action is brought to recover on a fire insurance policy. The issue on the appeal is as to the sufficiency of a notice of cancellation given under the 11th and 15th statutory conditions, prescribed by the Ontario Insurance Act, R.S.O., ch. 194, s. 183. It is stated in the principal judgment of the Appellate Division, delivered by Hodgins J.A., as follows:—
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The respondent company pleads that it validly cancelled the policy under statutory conditions Nos. 11 and 15. This was effected, as the company contends by mailing to the appellant in a registered letter addressed to her under the name, “F. Veltre, Esq., 82‑84-86 Claremont St., Thorold, Ont.,” a notice cancelling the policy, and by enclosing in this letter the respondent company’s cheque for $11.34 or legal tender to that amount “being the unearned premium for balance of the current term of Policy No. 10514765.”
The letter containing the notice and money was never delivered to, or recieved by, the appellant until after the fire.
The sole question raised is whether the method thus adopted was an effective compliance with the conditions which require a tender of the unearned premium to be made as well as the giving of notice.
It was held by the learned trial judge that if the notice putting an end to the policy, the distinct end aimed at, can be given in writing by registered letter, the tender of the unearned portion of the premium may be made in the same way.
The learned judge held the tender insufficient and that the notice would be effective only from the time of its receipt by the insured. Magee J.A. concurred as to the insufficiency of the notice and Maclaren and Ferguson JJ.A. agreed in the result. Meredith C.J.O. dissented, holding that a tender by letter was authorised and that the notice was effective from the time of posting, or, at all events, from the time when in the ordinary course the letter would reach the person to whom it was sent.
Mailed at Toronto on the 15th of December, 1915, the notice reached Thorold in the ordinary course of mail on the 16th, but was never actually received by the insured and only came to her knowledge after the loss, which occurred on the 25th. The $11.34 enclosed ($11.25 in legal tender and 9 cents in postage stamps) was admittedly more than sufficient to cover the unearned proportion of the premium.
The insured was the wife of one Sam Savino. It is customary with the peoples of countries where the civil law prevails, that a married woman should be designated by her maiden name in business transactions,
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legal documents, etc. The plaintiff was accordingly insured as “F. Veltre, Esq.”—the Esq. being added through some unexplained mistake. That is her designation in the policy, which she accepted and retained and on which she now sues.
There is no local mail delivery in Thorold. Probably owing to the notice of cancellation having been addressed to “F. Veltre, Esq.,” instead of to Mrs. Mde., or Signora Savino, it was not placed in Sam Savino’s box at the local post office, or otherwise delivered, although it seems probable that some inquiry was made for the Savino mail at the general delivery wicket. The Savinos left Thorold on the 24th December, apparently for the purpose of spending Christmas in Toronto. The fire occurred during their absence. The 11th and 15th statutory conditions indorsed on the policy read as follows:—
11. The insurance may be terminated by the company by giving seven days’ notice to that effect, and, if on the cash plan, by tendering therewith a ratable proportion of the premium paid, for the unexpired term, calculated from the termination of the notice, and the policy shall cease after such notice, or notice and tender as the case may be, and the expiration of the seven days.
15. Any written notice to the assured may be by letter delivered to the assured or by registered letter addressed to him at his last post office address notified to the company or where no address is notified and the address is not known, addressed to him at the post office of the agency, if any, from which the application was received.
For the assured it was contended that
(1) Condition 15 does not apply to a notice of cancellation:
(2) The notice of cancellation was not addressed as condition 15 prescribes;
(3) Tender of the proportion of the premium for the unexpired term cannot be made by post; it must be made personally;
(4) A notice given under condition 15 is effectual only from the date of its actual receipt;
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(5) If effectual from the time at which it would in the ordinary course of post have reached the insured, the notice given for cancellation on the 22nd would be insufficient: a date having been named it could not operate to effect cancellation at a later date on the expiry of seven days from the time at which it should have reached the insured in the ordinary course of post.
The company on the other hand asserts its right to give written notice of cancellation by registered post if the letter contains a sum of money at least equal to the proportion of the premium unearned, and that such a notice, if addressed as prescribed, should be deemed to have been given when deposited in the post office.
(1) I have no doubt that a written notice of cancellation under the 11th statutory condition is within the 15th condition and may be given by registered post. The literal terms of the 15th condition, taken in their ordinary acceptation, cover it. The collocation and history of the condition and a comparison with its counterpart, condition No. 7, seem to me to put the matter beyond doubt. The provision for sending written notice of cancellation by registered post, formerly itself part of the 19th statutory condition providing for cancellation by notice (R.S.C. 1897, ch. 203, sec. 168), was made the subject of a separate condition (No. 15) and extended to all written notices to be given by the company when the Ontario Insurance Act was re-enacted, preparatory to the revision of 1914, by 2 Geo. V., ch. 33. The obvious purpose was to have a general provision applicable to all notices in writing to be given by the company to the insured, precisely as condition No. 7—formerly condition No. 23, R.S.O. 1897, ch. 203, sec. 168—provides that all
[Page 597]
notices in writing to the company may be sent by registered post.
(2) In the policy the insured is designated as “F. Veltre, Esq.” It is proved that the Savinos resided over their grocery shop (which contained the property insured) described in the policy as “Nos. 82-84 on the north side of Claremont St., in the town of Thorold.” This was either the post office address notified to the company within the meaning of condition 15, or it was the known address of the insured. In either case the notice was rightly addressed to “82-84-86 Claremont St., Thorold, Ont.” The addition of the figures 86 to the 82-84 mentioned in the policy is immaterial. Suing as she does in the name of F. Veltre on the policy issued to F. Veltre, Esq., and accepted by her on that name, the plaintiff cannot, in my opinion, successfully maintain that the address of the notice was insufficient.
(3) For the reasons assigned by the learned Chief Justice of Ontario, I am satisfied that the tender provided for by the 11th condition is properly made if the amount of money to be tendered be enclosed with the notice of cancellation in a duly registered envelope, properly addressed to the insured. I cannot place any other reasonable construction on the word “there with” in the 11th condition, if that condition contemplates, as I think it clearly does, that the notice of cancellation may be in writing, and the 15th condition applies to it. It certainly was not the purpose of the 11th condition, in my opinion, to impose compliance with the formalities of a strict legal tender on the company. “Tendering” is used in the sense of “offering presently to refund.”
(4) In considering from what time the seven days which are to elapse between the notice of cancellation and the determination of the policy are to be com-
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puted, the nature of the condition and the purpose for which the seven days are allowed must be taken into account. Rights both of the insured and of the insurer are expressed in the eleventh condition. The latter is entitled to terminate its risk. The former is entitled to a reasonable period, fixed by the legislature at seven days, within which to protect himself, if he so desire, by procuring other insurance. The condition must, if at all possible, be so construed that these reciprocal rights shall be given fair and full effect. The insurer, solely for its own benefit, is allowed the option of giving the notice by making use of the post office as its agent to convey it in lieu of making a personal communication of it to the insurer. If it selects the latter, which may be regarded as the normal method, the policy is determined only on the expiry of seven full days from the moment of communication to the assured of the intention to cancel. Can it have been intended that the company by choosing to make use of the alternative method of giving notice through the mail should be entitled in practically every case to lessen the comparatively short period which the legislature meant the insured should have in which to reinsure, and, in some cases, to deprive him of it entirely? That would be the necessary effect of holding that the seven days should be computed from the moment of depositing the notice in the post office. I am satisfied that was not intended. Strong J., in Caldwell v. Stadacona Fire and Life Ins. Co., at p. 238, speaks of a condition as
grossly unfair in not providing that notice should be given a reasonable time before the cancellation should take effect, so that the assured might have the opportunity of covering himself by another insurance.
The cases cited by Mr. Robertson are all readily and clearly distinguishable. They were cases in which
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numerous persons, who might be scattered in many places, were to be notified of calls or meetings, etc. It would be impossible in such a case to fix any one definite date at which the term of the notice should expire unless that term should commence from the moment of deposit in the post office. No such difficulty arises in the case of a notice to a single insured.
On the other hand, it is said that if the notice was meant to be effective only from the moment of its actual receipt by the insured, it is difficult to appreciate the object of the legislature in imposing the registration of it on the company, and it is therefore argued that the notice must have been intended to be operative at least from the time at which it would have reached the insured in the ordinary course of post. It seems to me to be a more reasonable explanation that the legislature directed that notice, if given by mail, should be by registered post in order to facilitate proof of the fact whether a notice so sent had or had not reached the insured. It would be a strong thing to hold that the insurer could extinguish the contractual rights of the insured under his policy without any prior actual notice being given to him. In the absence of an explicit statement that notice of cancellation should be deemed effectual from the time at which it would in the ordinary course of post have reached the insured, nothing short of an irresistible inference from the terms in which the condition providing for notice by post is couched that that was the purpose and intention of the legislature would suffice to justify a court in holding that the contractual rights could be thus extinguished. Dealing with a substantially identical provision made by what was then the 23rd statutory condition (R.S.O. 1897, ch. 203, sec. 168)—now the 7th—the Ontario
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Court of Appeal in Skillings v. Royal Ins. Co., affirming a judgment of Lount J, unanimously held that a letter from the insured to the insurance company notifying it of his intention to cancel his insurance would take effect only from the time of its actual receipt. Maclennan J.A. says, at p. 403:—
An actual delivery of notice is evidently what the statutory condition intends.
Garrow J.A., citing with approval the unanimous decision of the New York Court of Appeal in Crown Point Iron. Co. v. The Ætna Ins. Co., says, at p. 405:—
The notice sent before, but not received until after, the fire was wholly ineffectual.
It was argued that the Skillings Case, is distinguishable because the notice there sent was wrongly addressed. But the decision turns on the fact that it was not received—not that it did not fulfil the requirement of the condition as to address.
Notwithstanding section 20 of the Ontario Interpretation Act (R.S.C., ch. 1) it may fairly be assumed that in making the 15th condition a counterpart of the 7th in the Act of 1912, ch. 33, the legislature was not unmindful of the construction which the Court of Appeal had, as recently as 1903, put upon the 7th clause.
There is no provision in the Ontario practice for the service of legal process or notice by registered post such as is found in the English O. XLVII., R. 2. It is noteworthy that in that rule, in order to make a notice so sent operative not from its actual receipt but from the time at which it would be delivered in the ordinary course of post, an explicit provision to that effect was apparently deemed necessary. A not unreasonable
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inference is that without it the service would be effectual only from the time of the actual receipt of the mailed document. A provision in the English Interpretation Act of 1889, ch. 63, sec. 26, creates the like presumption in regard to any document which a statute authorises or requires to be served, given or sent by post—“unless the contrary is proved.” Here the contrary has been proved.
It would, no doubt, have been much more satisfactory had the statute explicitly declared from what time the seven days should be computed in the case of notices by registered post but, in the absence of some such provision as is found in the English rule cited, the terms of condition 15, in my opinion, do not warrant a holding that by resorting to it an insurance company can deprive an insured of the benefit of the whole or any part of the seven days’ notice upon giving which condition 11 enables the company to terminate its risk. Notice, unless the contrary be clearly provided, must mean actual notice.
(5) Although in view of the conclusion that the 4th objection to the notice of cancellation must prevail it may be unnecessary to deal with the 5th, it is perhaps better that I should express the opinion I have formed upon it. Since a power of cancellation must, no doubt, be strictly exercised, I was at first much impressed with the view that because the company’s letter expressed its intention to terminate the risk on the 22nd of December its notice could not be good for any subsequent date. But on further consideration I incline to think otherwise. Emmott v. Slater Mutual Fire Ins. Co., was a very similar case. A notice of intention to cancel on the 20th of February, mailed on the 13th was received by the insured on the 14th. The
[Page 602]
property covered was destroyed on the 22nd. Ames C.J., delivering the judgment of the Superior Court of Rhode Island, upholding the cancellation as effectual, said, at p. 565:—
The notice received by the plaintiff on the 14th day of February, informed him, in substance, that from and after the 20th of that month, “no member of his class would be held insured,” as the policy would be cancelled at noon on that day, under the power reserved by the by-law, and in pursuance of the vote of the company. The purpose of the by-law, in requiring seven days’ notice of the intent to cancel his policy, to be given to a member before the cancellation would become effectual, was, to give him seasonable warning, if he would be protected by insurance, to get it elsewhere. This purpose seems to us to have been as fully answered by the notice given to the plaintiff, as if the 21st day of February, instead of the 20th, had been inserted in the notice as the day from and after which his policy would stand cancelled. By warning him to procure other insurance earlier than the by-law, considering the time he received the notice, permitted, it could not mislead him to his injury; and when the seven days had expired after his receipt of the notice, he had all the notice which the by-law either in its letter or spirit, required; that is, seven days’ notice of the intent of the company to cancel his policy on a day subsequent to the giving of the notice.
As the loss happened after the plaintiff had received the seven days’ notice of the intent to cancel his policy, we hold that his policy was then cancelled, and order judgment to be entered up for the defendants, with costs.
I find in Philadelphia Linen Co. v. Manhattan Fire Fire Ins. Co., cited in 19 Cyc. at p. 646, an authority to the same effect. I have unfortunately been unable to see the report itself. The notice of intention to cancel need not specify any date as that on which the risk is to come to an end. When it is given the statutory condition applies and effects the cancellation on the expiry of seven days. The statement of the date on which the notice is to become effective is therefore superfluous. The insured knows, or must be presumed to know, that he is entitled to seven days from the time at which he receives the notice. I therefore incline to the opinion that if the
[Page 603]
plaintiff had actually received the notice of cancellation seven days before the fire occurred she could not have recovered on the policy, which would have ceased to be in force, not upon the 22nd of December, but at the expiry of seven days after actual receipt of the notice.
In the result the appeal fails and should be dismissed.
BRODEUR J.—The question is whether the insurance was terminated when the fire took place on the 25th of December, 1916.
The insurance was for a year from June, 1916, to June, 1917. Section eleven of the statutory conditions gave power to the company to terminate it sooner
by giving seven days’ notice to that effect and if on the cash plan by tendering therewith a ratable proportion of the premium paid for the unexpired term.
The statutory condition No. 15 provided that any written notice could be given by a registered letter addressed to the assured
at his last post office address notified to the company or where no address is notified and the address is not known addressed to him at the post office of the agency, if any, from which the application was received.
In this case the notice cancelling the policy was sent on the 15th of December, 1916, by registered letter to F. Veltre, Esq., 82-84-86 Claremont St., Thorold, Ont., and there was enclosed therein the sum of $11.34, representing the unearned premium for the balance of the current term of the policy.
The letter was not delivered to the insured and remained in the post office at Thorold until after the fire which took place on the 25th of December.
The insured never had any intimation before the fire that the policy was cancelled or to be cancelled. Everything points to the good faith of the insured.
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The insurance had been taken through the agency of the company at Merritton, a suburb of the town of Thorold. The insured was an Italian lady married to a man named Savino. The application for the insurance was taken by the agent of the company on a stock of groceries and on fixtures situated in a store bearing Nos. 82-84-86 Claremont St., in Thorold. By the mistake of the company or of the agents, the policy was issued in the maiden name of Mrs. Savino, “F. Veltre.” It is customary amongst Italians that the married women preserve and are called by their maiden names.
The company added, however, on the policy to the name of F. Veltre, “Esq.”
Mr. Savino had a box in the post office at Thorold and he was well known there. But the name of F. Veltre Esq. was entirely unknown to the postmaster or the employees of the post office; and it does not appear by the evidence that the address of F. Veltre was known to be in Thorold. “F. Veltre, Esq.” was certainly unknown in Thorold. The address of the respondent was never notified to the company. So the company, not knowing the address of the respondent and not having been notified of her address, its duty was, according to the statutory condition 15, to send the notice to its agency in Merritton.
Besides, I am of opinion that the tender of money should have been made personally to the insured or at least at her domicile or place of residence and that on that ground the alleged tender made in this case is not valid.
The statutory condition never contemplated that an insurance company could be at liberty to deposit legal tender money in the post office and that from that moment the notice of cancellation would have its
[Page 605]
effect. Sir Edward Coke (Co. Litt., p. 210,) says that tender must formally be made only to the creditor himself.
It is contended by the appellant that the use of the word “therewith” in statutory condition eleven entitled the company to enclose the money with the notice and that a personal tender is not required.
I am unable to agree with that contention. The right which the company possesses to cancel a valid contract is contrary to the ordinary rules affecting contractual relations. If the legislature intended to avoid the necessity of a tender being made personally they would then have so provided in the clearest of language. I am unable to find such an intention in construing the conditions referred to. The company had no right to depart from the ordinary rule that the tender should be made to the creditor personally. (Harris, Law of Tender, p. 97.)
For those reasons the judgment a quo which maintained plaintiff’s action should be maintained and the appeal dismissed with costs.
CASSELS J.—As the majority of the court are in favour of dismissing this appeal, I concur.
Appeal dismissed with costs.
Solicitors for the appellants: Fasken, Robertson, Chadwick & Sedgewick.
Solicitors for the respondent: Ingersoll, Kingstone, & Hetherington.
40 Ont. L.R. 619; 39 D.L.R. 221.
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