NOTE: early debenture case, municipal corporation as defendant

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OCUL - YORK UNIVERSITY
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COLLECTIONS SCOTT LIBRARY
Terms: (municipal corporation & debenture & default)
Source: All Canadian Court Cases
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Case Name:
The Montreal City and District Savings Band v.
The Corporation of the County of Perth
[1881] O.J. No. 254
32 U.C.C.P. 18
Ontario Court of Common Pleas
Wilson C.J. and Osler J.
June 24, 1881.
(62 paras.)
Debenture -- Condition precedent -- Presentation and surrender -- Damages -- Pleading.
Action on a debenture by which the defendants agreed to pay to the bearer 200 pounds stg. at the
office of a named bank and on a named day, upon presentation and surrender there of the
debenture. Averment of performance of all conditions precedent. Breach, non-payment of the
principal sum.
Held, by OSLER, J., and affirmed by the full Court, (1) that the presentation and surrender of the
debenture at such place and date were conditions precedent, and the performance of such
conditions having been averred in the declaration, a replication alleging presentation on a later day
was a departure; (2) that it was no objection to a replication that it shewed for the first time that
interest only was claimed, for that being merely an accessory to the principal, need not be claimed
as damages.
Held, also, that a plea which, after traversing the presentation of the debenture modo et form
alleged it was afterwards paid and was then duly surrendered to the defendants, was a good plea, as
the plaintiff's, by excepting to it, admitted payment of the principal sum, which would include the
nominal damages, if any, alone recoverable for its detention, while the surrender of the debenture
would show that the payment was in satisfaction and discharge of the debt, if not of the damages
also: that it was no answer to the plea to say that the surrender before the damages were paid was by
mere oversight and inadvertence so long as it appeared to be intentional; but that it would be a good
answer to say that such delivery was on the express agreement that the right to damages was
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reserved. [32 UCCP Page19]
Held, also, that after failure to make a due presentation, there could be no recovery until a demand
was made for payment, which must be made on the defendants.
Osborne v. Preston and Berlin R.W. Co., 9 C.P. 241, and Fellowes v. Ottawa Gas Co., 19 C.P. 174,
commented upon.
1 THE declaration stated that the defendants made their debenture, and delivered it to the
Treasurer of the Province of Ontario, who accepted and received it, and thereby, after
acknowledging themselves to be indebted to the said treasurer, or bearer, in the sum of 200 pounds
stg., agreed to pay it to the bearer of the debenture at the office of the Bank of Scotland in London,
England, on the 31st of December, 1875, upon the presentation and surrender of the debenture at
the said office: that the debenture is one of nine debentures for 200 pounds stg. each, payable on
the said 31st of December, 1875, mentioned in the schedule to 38 Vic., Ont., ch. 29, entituled, "An
Act to amend the Act respecting the Municipal Loan Fund Debt, and certain payments to
Municipalities," and is one of the debentures mentioned in the fourth section of that Statute: that
the debenture was afterwards, and before it became due, transferred to the plaintiffs, who became
the lawful holders and bearers thereof. The declaration then averred the performance of all
conditions precedent by the plaintiffs in the usual way. The breach alleged was the non-payment "of
the said 200 pounds sterling mentioned in the said declaration."
2 There were eight other like counts on eight other like debentures.
3 Fourth plea: that the plaintiffs were not, at the commencement of the suit, the lawful holders of
the debentures.
4 Fifth plea: that the debentures were not presented at the office of the Bank of Scotland when
the same matured, and afterwards were duly paid by the defendants to the bearer thereof, and were
then duly surrendered and delivered up to the defendants.
5 The second replication to these pleas alleged, that all the said debentures bore interest, payable
half yearly, and the last half year's interest payable thereunder became due and payable at the same
time as the principal money; and the [32 UCCP Page20] plaintiffs first became the holders and
bearers thereof in the Dominion of Canada, and from the time they first became such holders and
bearers continued to be such until they were delivered to the agents of the defendants, as
thereinafter mentioned; and the defendants were not ready and willing to pay them at the time they
became due, nor at the time they were presented for payment, as thereinafter mentioned, nor at any
other time until long after they were so presented for payment: that the defendants had not, nor were
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there at the said office of the bank of Scotland at the time said debentures became due, nor at the
time they were presented for payment, as thereinafter mentioned, nor at any other time until long
after they were so presented, the funds or money to pay them: that the plaintiffs, within ten days
after the time when said debentures became due, namely, on the 8th of January, 1876, duly
presented the said debentures at the office of the said bank for payment thereof, and were then
ready and willing to receive payment of and surrender them, according to the terms thereof; and all
conditions were performed; and all things happened necessary to entitle the plaintiffs to be paid the
amount of the said debentures, but payment was refused. And although the defendants paid all the
interest on the said debentures up to the time they became due, yet the principal money of 1,800
pounds stg., of the said debentures remained wholly unpaid and unsatisfied for a period of one year
and eighty-five days after they had become due, to wit, until the 26th of March, 1877, at the
expiration of which time the defendants, by their agents, paid to the said agents of the plaintiff's the
said sum of 1,800 pounds stg., as and being the principal money due upon the said debentures, and
said debentures were then delivered by the plaintiffs' agents to the defendants' agents, and have
been ever since in the defendants' possession. And the said payments of the interest as aforesaid,
and of the said 1,800 pounds stg., are the only payments ever made by the defendants on or in
respect of said debentures, and are the only satisfaction the defendants have ever made of any
claim thereunder; and the said payment [32 UCCP Page21] and the said delivery constitute the
alleged payment and surrender and delivery up of said debentures relied upon by the defendants in
their said fifth plea. And the plaintiffs say that they sustained damages by reason of nonpayment of
said debentures according to the terms thereof, and by reason of the said principal money
remaining unpaid for the said period of one year and eighty-five days after the said debentures
became due and payable, and that the said damages were not nor are merely nominal, but were and
are substantial, amounting to a large sum, to wit, &c.; and the plaintiffs have never been satisfied
the said damages, or any part thereof, and bring this action for the recovery thereof: that since the
plaintiffs first became the bearers of the said debentures no other person or corporation ever was
the holder of or entitled to the same, or to any right or claim under them: that the defendants, at all
times, had due notice and knowledge of the facts aforesaid [*]. And the plaintiffs further say, that
by mere inadvertence and oversight on the part of the plaintiffs' agents the debentures were
delivered up to the agent of the defendants before the said damages had been satisfied.
6 The third replication was the same as the second down to the [*], and then alleged that at the
dine the debentures were delivered tip as therein mentioned, the right of the plaintiffs to the said
damages was expressly reserved to the plaintiffs, and the debentures were delivered up, as in the
second replication mentioned, on the understanding and agreement between the plaintiffs and
defendants, by their said agents, that the said right was so reserved to the plaintiffs.
7 The rejoinder alleged, as to $933, parcel of the money claimed, that on the 22nd of January,
1876, and therefrom until the 26th of March, 1877, the bearer of the debentures was unknown to
the defendants; and the defendants, on the said 22nd of January, 1876, after the debentures had
been presented by the plaintiffs as alleged, had money and funds at the Bank of Scotland, in
London, for the payment [32 UCCP Page22] of and in order to pay the principal money thereof,
Page 3
which money was left with, and always thereafter remained with, the said bank, ready to be applied
in and for such payment, until the debentures were paid to the plaintiffs, as admitted; but the
plaintiffs, after the 22nd of January, did not present the debentures for payment at the said bank or
elsewhere to the defendants until the time they were paid, as in the replications admitted.
8 To this rejoinder the plaintiffs demurred, on the grounds: (1) That it did not allege that
defendants had money at the bank to pay the debentures at the time they became due, or when they
were presented for payment, or at any other time previous thereto, or that they were ready and
willing to pay said debentures at the time of presentation or previously; (2) That the having of
funds at the bank after presentation was no answer; (3) The rejoinder does not shew that it was by
any act or omission of the plaintiffs that the defendants were prevented in any way from paying the
debentures, and shews no excuse for not having funds at the bank for payment: that the rejoinder
does not shew that the plaintiffs ever had notice that the said moneys were at the bank, or were
notified again to present the debentures fox payment.
9 The plaintiffs also excepted to the fifth plea: (1) That it did not shew that the defendants were
ready and willing to pay, or had funds at the bank to pay the debentures when they became due;
and (2) did not shew that the plaintiffs were ever satisfied their damages for non-payment of the
debentures at maturity.
10 The defendants joined in demurrer, and gave notice of exceptions to the replications: (1.) That
they are a departure from the declaration in two respects, namely, by admitting payment of the
amount stipulated for by the debentures, and by admitting that the plaintiffs were not ready and
willing to receive payment and surrender the debentures at the bank on the day stipulated for
payment: (2) they admit that the plaintiffs were not the holders of the debentures at the
commencement of the suit: (3) that [32 UCCP Page23] admitting that the plaintiffs were not at the
place of payment at the time stipulated, and prepared to surrender the debentures, the replications
should have alleged a demand made on the defendants before action: (4) that the third replication is
a departure, in setting up a new contract for payment of damages on handing over the debentures to
the agents of the plaintiffs.
11 On January 21st, 1881, the demurrer and exceptions were argued.
12 S. Richards, Q.C., for the plaintiffs.
13 R. Smith (of Stratford), for the defendants.
14 The arguments and cases cited were the same as before the full Court, post p. 29.
15 March 11, 1881. OSLER J.:-- On these pleadings it is admitted:
1. That the plaintiffs did not present the debentures for payment, and were
not ready to surrender them at the Bank of Scotland, in London, England, on the
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31st of December, 1875, being the place and day appointed for payment.
2. That the defendants were not then ready and willing to pay them there.
3. That the plaintiff, on the 8th of January, 1876, did present the
debentures for payment there, but the defendants then had no funds there, and
were not ready and willing to pay them there.
4. That on the 22nd of January, 1876, the defendants had, at the place
named in the debentures, money and funds, in order to pay the principal money
due thereon which money always afterwards remained there ready to be paid to
the plaintiffs.
5. That the holders of the debentures were then, and always afterwards
until the 26th of March, 1877, unknown to the defendants.
6. That on the 26th of March, 1877, the principal money and interest to the
31st of December, 1875, the [32 UCCP Page24] day on which the debentures
were payable, were paid to the plaintiffs.
7. That the debentures were thereupon surrendered to the defendants.
8. That in this action the plaintiffs seek to recover only damages in the
nature of interest, for the non-payment of the principal money, between the 31st
of December, 1875, and the 26th of March, 1877.
16 In the second replication it is alleged that the debentures were surrendered, as above stated,
"by mere inadvertence and oversight on the part of the plaintiffs' agents before the damages had
been satisfied."
17 The third replication alleges, that at the time the debentures were surrendered the right of the
plaintiffs to the said damages, and to claim and recover the same, was expressly reserved to the
plaintiffs, and the debentures were delivered up on the understanding and agreement between the
plaintiff and defendants, by their agents, that said right was so reserved to the plaintiffs.
18 These complicated pleadings would have been a good deal simplified, and the plaintiffs' rights
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quite as easily determined, if the declaration had been framed more in accordance with that in
McDonald et al v. Great Western R.W. Co., 21 U.C.R. 223, which was not referred to on the
argument.
19 The plaintiffs in that case sued the defendants in debt on bond, admitting payment of the
principal several years after it was due, and of all interest up to the day when the former was
payable, stating that the bond was an interest-bearing bond, and claiming as damages interest from
the due date to the date of payment.
20 Interest being, however, merely an accessory to the principal the declaration need, in fact, say
nothing of damages; it is sufficient to aver non-payment of the principal, and the plaintiffs'
pleadings are, therefore, not in fault merely for shewing in the replication for the first time that
interest is all that is claimed.
21 The question is, whether upon the facts as pleaded the [32 UCCP Page25] plaintiffs shew that
they are entitled to the interest as damages.
22 I must treat the declaration as framed in covenant, and not in debt on bond. The plaintiffs do
not sue for an admitted debt or penalty for which the defendants are liable, leaving them to
discharge themselves from it by bringing themselves within the terms of the defeasance, but set out
an express contract, which shews that they had a concurrent duty to perform at the time the
debentures were to be paid; or rather that the defendants' obligation to pay the debentures was
conditional upon their surrender by the holders, the statement of the contract being, that "the
defendants agreed to pay upon the surrender and presentation of the said debentures at the office
aforesaid." The plaintiffs aver the performance of all conditions precedent necessary to entitle them
to the performance of the defendants' agreement; and the case of Osborne v. Preston and Berlin R.
W. Co., 9 C.P. 241, is an authority directly in point, that the surrender and presentation of the
debenture at the place mentioned was a condition precedent on the plaintiffs' part, performance of
which it was necessary for them to aver.
23 It was urged that this case is opposed to the subsequent case of Fellowes v. Ottawa Gas Co.,
19 C.P. 174, but it will be seen, that the plaintiff there declared strictly in debt, setting out merely
the obligatory part of the bond, leaving the defendants to discharge themselves by shewing
performance of the condition. So that there, apart from any question of a defence arising out of the
stipulation which the bond in that case also contained, it was cast upon the defendants to shew that
they had always been ready and willing to pay; and (whether they were or not), as they pleaded only
non est factum, they were unable to avail themselves of any defence arising upon the defeasance. I
think, therefore, that these cases are not inconsistent.
24 The defendants, by their fifth plea, traverse, as they have a right to do, the averment of
presentation of the [32 UCCP Page26] debentures, and say that they were afterwards duly paid to
the bearers thereof, and were then duly surrendered and delivered up.
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25 This plea is excepted to, on the ground that it does not shew that the defendants were ready
and willing, or had money or funds to pay the debentures when they became due, and does not
shew that the damages by nonpayment at maturity were satisfied.
26 I am of opinion that the plea is good as against these exceptions, because (1) they admit
payment of the principal debt; (2) it cannot be assumed against the plea, that more than nominal
damages, if any, under the circumstances could be recovered; (3) the cases of Beaumont v.
Greathead, 2 C.B. 494, and Tetley v. Wanless, L.R. 2 Ex. 21 and 275, are authority for holding that
payment in satisfaction of a debt is a payment in satisfaction and discharge of the nominal damages
due for its detention; and (4) the surrender of the security is enough to shew that the payment
alleged was in satisfaction and discharge of the debt, if not also, as I think it is where unexplained,
in satisfaction of the damages for its detention, whatever they may be: Wilkinson v. Candlish, 5 Ex.
91, at p. 97; Martyn v. Kingsly, Prec. in Chy. 209; Taylor v. Manners, L.R. 1 Ch. 48; Dixon v.
Parkes, 1 Esp. 110; Hobbs v. Palmer, 1 Bing. N.C. 713; Clerk v. Alexander, 8 Scott N.R. 147.
27 In the replications the plaintiffs admit that the bonds were not produced or surrendered, or
ready to be surrendered, by them at the time and place stipulated, and seek to excuse themselves by
alleging that the defendants were not then ready and willing to pay. A condition precedent, the
performance of which had been averred in the declaration, is thus shewn not to have been
performed. The defendants object that this is a departure, and I think it is. I have already said that in
my opinion the presentation and surrender of the bonds was a condition precedent. It is not simply
the case of a contract to pay at a named place, in an action upon which it may be sufficient [32
UCCP Page27] for the plaintiffs to make the general allegation that the defendant did not pay,
meaning thereby that he made default in fact in not paying according to the condition of the
contract, thus making it incumbent upon the defendant to raise, by way of plea any defence as to the
plaintiff not being at the place to receive the money, or that he was there ready to pay it. In such a
case the defendant is the first person to move towards payment of the debt; he must seek out his
creditor; and if he was not ready to pay the debt it matters not that his creditor was not there to
receive it: Becher v. Corporation of Amherstberg, 23 C.P. 602; Rowe v. Young, 2 B. & B. 193, 207,
215, 217. Here, by the terms of the contract, the position is reversed, and the creditor must make the
first move.
28 I think, therefore, the exception to the replications is well taken, and they are bad because they
depart from the ground on which the plaintiffs put their claim in the declaration.
29 This would be sufficient to dispose of the case, but from what I have said it follows that the
plaintiffs, having made default, were bound to make a demand on the defendants for payment; and
I am not aware of any authority for holding, nor do I find it in the terms of the contract, that the
demand might be effectually made at the place which had been appointed for payment when the
debentures became due. It appears to me that such a demand should have been made upon the
defendants themselves; and on principle that must be so, as it is admitted that the defendants did not
know by whom the debentures were held, and there was no reason why they should assume that
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they would be presented at the place named for payment on a former day. At all events, a default
having been made by the plaintiffs, I think it became incumbent upon them to shift it to the
defendants before damages for nonpayment of the debt could be recovered.
30 I think the second replication is also bad, as being no answer to the fourth plea. Prim facie,
the deliberate surrender of the debentures on payment of principal and [32 UCCP Page28] interest
due thereon would be an answer to any claim for damages in the shape of subsequent interest. The
principal, the debt, being gone, and the security abandoned or surrendered, on what can a claim for
the damages, the accessory, be founded? In the case of McDonald et al v. Great Western R.W. Co.,
21 U.C.R. 223, already referred to, the plaintiffs had evidently not abandoned their security, and
therefore; upon the authorities cited in that case, were entitled to sue upon it for damages similar to
those claimed in the present case. The replication excuses the surrender by saying it was done by
inadvertence or oversight; but was it not intentionally done? If it was, the foundation of the
plaintiffs' claim is gone, and the action cannot be maintained. See the cases already cited, and
Florence v. Drayson, 1 C.B.N.S. 584; Kent v. Reynolds, 15 N.Y.S.C.R. 559.
31 I think the second replication does answer the fourth plea, and so much of the fifth as alleges
the surrender of the debentures. I should, at all events, for the purposes of the demurrer, hold that it
did, so that the facts relating to the alleged surrender might be brought out. I do not read it as setting
up a new contract, but merely as shewing facts from which it may be implied that the surrender of
the debentures was not for the purpose of their cancellation, and evidenced no intention on the
plaintiffs' part to yield their right, if any existed, to damages.
32 On this point also, the case of McDonald et al v. Great Western R.W. Co., 21 U.C.R. 223, may
be again referred to. The debenture mentioned in the second count in that case had always, up to
the time it was destroyed, been in the defendants' possession, and the plaintiffs never were, in one
sense, the actual holders.
33 I do not understand why the rejoinder is limited "to $933 parcel of the money claimed," nor
why it is said that the bearer of the debentures was unknown to the defendants on the 22nd of
January, 1876, and thence until the principal money was paid. No objection is suggested to it on
these grounds, and for reasons I have given in discussing [32 UCCP Page29] the other pleadings I
think it is good as against the grounds taken by the demurrer.
34 The judgment will, therefore, be for the defendants on the demurrer to the rejoinder, and on
the exceptions to the replications and pleas.
35 Judgment for defendants.
36 In Easter Term, May 26, 1881, the case was reheard before the full Court.
37 Richards, Q.C., for the plaintiffs. The debentures in this case are very similar in form to those
instruments which were sued upon as bonds, in Fellowes v. Ottawa Gas Co., 19 C.P. 174; and it
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appeared in that case that the bonds were not presented at the place where they were made payable,
and that if they had been the defendants had not the funds there to meet them. The Court held there
was no variance between the bonds declared upon and those which were produced at the trial, those
declared upon being stated to be payable to the holder generally, and those produced being payable
on surrender and at a particular place; and that it was not necessary as a condition precedent to the
recovery, that the plaintiff should aver and prove presentment at the particular place and tender to
surrender the bonds, or a readiness to do so; and that the plaintiff was entitled to interest so long as
the debt remained unpaid, inasmuch as the defendants had not attended at the time and place named
to pay the debt. It was the defendants' duty to attend at the time and place to perform the
engagement they had entered into. If the plaintiffs were not there, the defendants would be excused
from paying subsequent interest, perhaps, until a demand was made upon them by the plaintiffs.
These instruments called debentures are in effect bonds or covenants; and as the defendants had
bound themselves [32 UCCP Page30] to do certain acts by such bonds or covenants, the duty or
obligation lay upon them to discharge themselves from the engagement by which they were bound
to attend at the time and place named, and to pay or tender payment, whether the plaintiff's were
there or not to receive it, or to present or surrender the debentures: Hurlstone on Bonds, 5; Shep.
Touch., 368; Chambers v. Manchester and Milford R.W. Co., 5 B. & S. 588; Rowe v. Young, 2 B.
& B: 193; Bury v. Blogg, 12 Q.B. 877; and that there was a difference between what are called
nominal and what are called substantial damages, for while payment of the principal debt will
acquit the nominal damages, it will not discharge substantial damages such as are claimed in this
action: Beaumont v. Greathead, 2 C.B. 494, 499; Goodwin v. Cremer, 18 Q.B. 757; Tetley v.
Wanless, L.R. 2 Ex. 275. There is no departure according to the case of Fellowes v. Ottawa Gas
Co., 19 C.P. 174.
38 R. Smith (of Stratford), contra. The defendants' agreement was for payment of the amount of
the debentures at the Bank of Scotland, in London, England, upon the day named, upon
presentation and surrender of the debentures there. The plaintiffs, in their declaration, expressly set
this up as a condition precedent and allege performance of it, and the fifth plea puts it in issue. The
case of Osborne v. Preston and Berlin R.W. Co., 9 C.P. 211, shews it is necessary to aver a
surrender and deliver up of the debenture or a readiness to do so, where by the terms of the bond
the money is made payable at a particular place. The second replication, which sets up the
subsequent payment and delivery up of the debentures, admits that presentation and offer to
surrender was not made on the day named, but on a subsequent day. This is clearly a departure. The
plaintiffs also, by the delivery up and surrender of the debentures to the defendants when they were
paid, extinguished all claim to interest,and the matters of excuse set up in the replications are not
sufficient. The plaintiff's having failed to make due presentation, should have demanded payment
from the defendants. The defendants [32 UCCP Page31] are a municipal corporation, and there
was no difficulty in finding their officers to make presentation. On the other hand, the debentures
were made under the Municipal Loan Fund Act, and delivered to the treasurer of the Province,
payable to bearer, and the defendants did not know who the holders were, and therefore where to go
or to whom to pay them. The judgment appealed from and the cases there cited are conclusive in the
defendants' favour.
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39 June 24, 1881. WILSON C.J.:-- I think there is no departure, because all that is claimed by the
replication could have been recovered under the declaration. The allegation at the end of each
replication, as to the inadvertence in giving up the debentures without getting the subsequent
interest, and the agreement to pay such subsequent interest, are only reasons why the accessorial
claim should not be deemed to be lost by the payment of the principal demand.
40 The principal question is, whether the plaintiffs were required by these debentures to demand
payment or to make presentation of the debentures at the time and place specially named for
payment; and my opinion is, that these acts on the part of the plaintiffs were concurrent acts which
they were to perform, or to be ready and willing to perform, at the same time and place the
defendants' paid or tendered, or were ready and willing to pay or to tender the money.
41 The terms of the instrument make these concurrent acts - payment was to be made upon
presentation.
42 The case of Paynter v. James, L.R. 2 C.P. 348, shews that to be so. Scott v. Parker, 1 Q.B.
809, is not altogether in favour of this view. There it was said payment must precede the delivery up
of the shares. The difference between that and this case is, that presentation here, should precede
payment. The meaning of "upon," is fully gone into in Regina v. Humphery, 10 A. & E. 335.
43 Then again these debentures are transferable: R.S.O. [32 UCCP Page32] ch. 174, secs. 390,
391, 392; 36 Vic. ch. 47, sec. 24, O., referred to by 38 Vic. ch. 29, O., which latter Act is referred to
in the declaration; and there is a special reason why they ought to be given up on being paid: Wain
v. Bailey, 10 A. & E. 616.
44 The case of Sanderson v. Bowes, 14 East 500, is very applicable to this case. And the general
rule as to declaring upon bonds with or without a penalty, covenants and other engagements, that it
is not necessary when the money is payable at a certain time and place to allege the creditor was
present or demanded payment at such time and place, does not apply here. It is held to be sufficient
in these cases for the creditor to allege that the debtor did not pay the money at the time and place
provided, but refused to do so; and it rests upon the debtor to plead by way of defence or excuse that
he was present at the time and place, and paid or tendered payment, and if the latter, that the
creditor was not there to receive it. While the precedents are all to that effect, it is singular there
should have been so great a difference of opinion among the Judges as to the correctness of the
precedents or the soundness of the decisions in that respect. An examination of these opinions will
shew how great that difference of opinion was.
45 I refer particularly to the statements in Sanderson v. Bowes, 14 East, at pp. 507, 509, and in
Rowe v. Young, 2 B. & B., in the House of Lords, pp. 176, 191, 195, 223, 230, 273.
46 The Lord Chancellor, in Rowe v. Young, and many of the Judges in that and in Sanderson v.
Bowes, held that it was only upon bonds with penalties and conditions that the burden of allegation
is cast upon the debtor to shew that he attended and tendered at the time and place required, and that
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in order to avoid the penalty.
47 While many of them held, and refer to numerous precedents in support of their opinions, that
on all instruments, single bills, covenants, and other engagements for [32 UCCP Page33] the
payment of money, as well as on bonds with conditions, it rests upon the debtor to excuse himself
from liability by averring an attendance by him at the day and place named, and the performance of
everything which is necessary to constitute a complete performance, or that he was ready and
willing, and offered to do all he was bound to do, but the creditor was not there to receive payment;
or the like.
48 It is quite certain the precedents in actions upon such instruments, do simply allege that the
defendant "did not pay at the time and place mentioned, but refused so to do," without stating the
plaintiff was present, or demanded payment.
49 Burrough, J., at p. 201 of 2 B. & B., thought that was because "the declaration of the creditor
was certain to a certain intent in general, and that it implied the creditor was there ready to receive."
50 Dallas, C.J., thought, at p. 273, that demand for payment by the creditor was confined to
mercantile instruments only. While Holroyd, J., at p. 217, said "a bill of exchange in an action
against the acceptor stands, I think, upon the same footing as a bill obligatory or any other
engagement for the payment of money so far as regards the necessity of allegation in the declaration
or of proving at the trial a presentment of the bill or a demand of the money."
51 In such uncertainty, why should not the instrument be construed just as it is worded, that the
defendants will pay the money at such a time and place, "upon the presentation and surrender of the
said debenture at the office aforesaid?" Because there is something more than payment to be made
- the debentures are to be presented and surrendered at the same time.
52 The case of Osborne v. Preston and Berlin R.W. Co., 9 C.P. 241, is a decision expressly in
point in favour of the defendants.
53 The later case of Fellowes v. Ottawa Gas Co. 19 C.P. 174, relied upon by Mr. Richards, is a
decision in favour of the [32 UCCP Page34] plaintiffs. The previous case in 9 C.P. 341, is not
referred to. I prefer adopting the earlier decision.
54 If this case were to go to a jury, I doubt whether the plaintiff would be allowed this claim for
interest. When on the 8th of January, 1876, they did not find the money at the place named, why did
they not apply to the defendants? They knew where to find the defendants, but the defendants did
not know where to find them. They did not know who the bearer of these debentures was; and the
result has been, that the money which the defendants deposited at the bank to pay the debentures
on the 22nd of the same month of January, lay idle there until the 26th of March, 1877, when the
plaintiffs again applied at the bank for payment, and were paid.
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55 Many of the common law decisions were founded upon a state of things prevailing at the time,
which is now wholly changed.
56 It is obvious it must be highly inconvenient for a debtor to be obliged to attend beyond the
Atlantic to make tender of his debt to save himself from damages, when he knows his creditor will
not be at the place named to make presentation of the debentures which are to be paid; and such are
the decisions - although these are not the facts of this case.
57 It is more in accordance with plain sense and the common dealings of mankind, that both
should be present - or if both absent, that the creditor should not recover damages when he is as
much in default as the other.
58 How they are to settle their respective rights afterwards as to the time and place of payment,
and which shall attend upon the other, the one to demand, or the other to pay or tender, is not now
in question.
59 As I agree with the decision of my brother Osler, the judgment will be affirmed. [32 UCCP
Page35]
60 OSLER J.:-- Upon the best consideration which I have been able to (rive to Mr. Richards's
able argument for the plaintiff's, I cannot take any other view of the pleadings than that which I
have already expressed.
61 GALT J. being engaged at the Assizes, took no part in the judgment.
62 Judgment for defendants.
qp/s/qlcbk/qldjv
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