



COURT OF APPEAL FOR ONTARIO

CITATION: Teixeira v. Markgraf Estate, 2017 ONCA 819

DATE: 20171026

DOCKET: C63370

Strathy C.J.O., van Rensburg and Trotter JJ.A.

BETWEEN

Arlindo Teixeira

Applicant (Appellant)

and

Estate of Maria Markgraf, also known as
Mary Markgraf, also known as Maria Mendonca Alves,
and Harry Claus Markgraf

Respondents (Respondents)

Don Morris, for the appellant

Andrew L. Keesmaat, for the respondents

Heard: September 7, 2017

On appeal from the judgment of Justice Alan C.R. Whitten
    of the Superior Court of Justice, dated January 20, 2017, with reasons reported
    at 2017 ONSC 427, 136 O.R. (3d) 143.



Strathy C.J.O.:

A.

OVERVIEW

[1]

The
    appellant, Arlindo Teixeira (Arlindo), was a good neighbour to Mary Markgraf
    (Mary) for nearly 15 years. He helped her with household maintenance, drove her
    about, and assisted with chores like groceries and banking.

[2]

Shortly
    before her death, Mary made a will. She made a bequest to Arlindo of $100,000.
    She also wrote out a cheque to him for $100,000. She asked her stepson to give
    it to Arlindo with instructions that he should take it to her bank the next
    day.

[3]

Cheque
    in hand, Arlindo went to Marys bank the next day. After inspecting the cheque
    and making some inquiries, the bank employee told him that they would have to
    investigate and returned the cheque to him.

[4]

What
    the bank employee did not tell Arlindo was that Mary had insufficient funds in
    her account to cover the cheque. The balance in her account was only $81,732.75.
    But Mary had over $200,000 in other funds on deposit at the branch. Without her
    specific instructions, however, the bank could not transfer money to her
    chequing account to make up the shortfall.

[5]

Mary
    died six days later. The bank was notified of her death the following day and
    froze her accounts. Arlindo then attempted to deposit the cheque at his own
    bank, but it was returned, marked funds frozen.

[6]

Marys
    stepson, her estate trustee, told Arlindo that he would be receiving $100,000
    from the estate and another $100,000 to cover the cheque. However, after
    obtaining legal advice, the estate trustee ultimately took the position that
    the cheque was an imperfect gift that was not legally enforceable. Arlindo
    received Marys $100,000 bequest under the will.

[7]

Arlindo
    sued Marys estate for the value of the cheque. The application judge dismissed
    his claim, finding that the gift failed for lack of delivery.

[8]

These
    reasons explain why I agree with the application judge and would dismiss the
    appeal.

B.

THE DECISION IN THE COURT BELOW

[9]

The
    application judge made the following central findings of fact. First, Arlindo
    had acted as he did towards Mary without thought of compensation. Second, there
    was no evidence of a contract between Arlindo and Mary. Third, Arlindo had not
    acted to his detriment in anticipation of receiving Marys cheque.

[10]

The application judge correctly
    identified the essential elements of a gift as being: (a) the donors
intention
to make a gift; (b)
acceptance
of the gift by the donee; and (c)
delivery
of the
    gift to the donee.

[11]

He found the first two
    requirements had been met. Mary intended to make a gift of $100,000. She had
    the necessary mental capacity to make the gift and she believed she had the
    money in her account. Arlindo had accepted the gift, which he attempted to
    realize by taking the cheque first to Marys bank, then to his own.

[12]

But the application
    judge held that the third requirement  delivery  had not been established.
    The gift had not been perfected by delivery because Mary did not have
    sufficient funds in her account. She could not give what she did not have. While
    she did have sufficient funds in other accounts, the bank could not have
    transferred those funds without direction from her.

[13]

The application judge
    also rejected Arlindos argument that the cheque was payment for services
    rendered. His good acts could not be characterized as consideration and there
    was no evidence of a contract.

[14]

The application judge
    also held that the doctrine of estoppel by convention did not apply on the
    facts of the case. The test in the leading case of
Ryan v. Moore
, 2005
    SCC 38, [2005] 2 S.C.R. 53, was not made out because Arlindo had not changed
    his legal position in reliance on a shared assumption.

[15]

Consequently, the
    application judge held that the gift of $100,000 by cheque was not enforceable.
    He dismissed Arlindos application, with costs of $14,000.

C.

THE APPELLANTS SUBMISSIONS

[16]

The appellant advances
    a number of alternative submissions, in an attempt to avoid what he submits is
    an unfair result.

[17]

First, he advances a
    claim in contract, arguing that his good deeds provided some consideration.

[18]

Second, he submits that
    the cheque was enforceable by virtue of the
Bills of Exchange Act
,
    R.S.C. 1985, c. B-4 (
BEA
). As part of this argument, he submits that
    the cheque was dishonoured when it was taken to Marys bank, giving him an
    immediate right of recourse.

[19]

Third, the appellant
    renews his argument that the gift by cheque was perfected by delivery.

[20]

Fourth, he relies on
    equity. He invokes estoppel by convention and the principle that equity will
    not strive officiously to defeat a gift.

[21]

Finally, the appellant
    seeks leave to appeal the costs award in the court below.

D.

ANALYSIS

[22]

I will deal with the
    appellants submissions in the order set out above.

(1)

The claim in contract

[23]

The claim based on
    contract fails because of the application judges findings that there was no
    contract between the parties and that Arlindos acts were done gratuitously. These
    findings of fact are unassailable. The appellant has demonstrated no palpable
    and overriding error in the application judges assessment of the evidence.

[24]

Arlindos good deeds
    were performed with no expectation of compensation. They could not provide
    consideration for a non-existent contract.

(2)

The claim under the
Bills of Exchange Act

Absence of consideration

[25]

The application
    judges findings of fact that there was no consideration or contract are also
    determinative of the appellants arguments under the
BEA
.

[26]

It is settled law
    that, as between the immediate parties, the failure or absence of consideration
    is a complete defence to an action on a bill of exchange.

[27]

In
The Law of
    Banking and Payment in Canada
, loose-leaf (2016-Rel. 1, Vol. 3) (Toronto:
    Thomson Reuters, 2015), Bradley Crawford describes the effect of this defence
    as follows, at p. 26-35:

Both total failure of consideration and complete absence of
    consideration (
as, for example, where a gift
    is made by cheque of the donor but not completed by payment upon presentment
)
    are defences to actions upon the engagements of immediate parties to a bill,
    cheque or note. A gratuitous promise of payment does not become binding at the
    suit of the immediate promisee merely because it is expressed formally in a
    negotiable instrument. [Emphasis added.][Footnotes omitted.]

See also: Benjamin Geva, Absence of consideration in
    the law of bills and notes (1980) 39 Cambridge L.J. 360;

Bradley Crawford,
Crawford and
    Falconbridge on Banking and Bills of Exchange
, 8th ed. (Toronto, Canada
    Law Book, 1986), at pp. 1429-30.

[28]

The appellant
    acknowledges that a total absence of consideration would be a defence to an
    action on the cheque, but argues that in this case his good deeds provide
    partial consideration. There is nothing in the application judges reasons to
    support the appellants claim that there was some, but inadequate,
    consideration for the cheque. This is a case of complete absence of
    consideration. That would have been a defence to an action against Mary and it
    is a defence to an action against her estate.

[29]

This case is very
    similar to
Peden v. Gear
(1921), 50 O.L.R. 384 (H.C.). The daughter of
    the deceased sued on a promissory note given to her by her father before his
    death. It was admitted that there was no consideration for the note, which was
    given solely for natural love and affection. Logie J. dismissed the claim,
    stating at p. 385:

There cannot possibly be any claim by way of action on a
    promissory note by the original payee to whom the promissory note was given, if
    she never gave any consideration for it; she is not a creditor of the deceased;
    and the enforcement of such promises by law, however plausibly reconciled by
    the desire to effect all conscientious engagements, might be attended with
    mischievous consequences to society, one of which would be the frequent
    preference of voluntary undertakings to claims for just debts, to the prejudice
    of real creditors.

The temptations of executors would be much increased by the
    prevalence of such a doctrine, and the faithful discharge of their duty be
    rendered more difficult.

Accordingly neither the fact that the deceased was apparently
    distributing a large portion of his estate among his children by gifts
inter
    vivos
, nor the plaintiff's plea that her father is dead and the claim is
    resisted only by his executors, should receive any consideration. The executors
    are entitled and in duty bound to set up the want of consideration. The
    authorities are clear that a cheque not paid either actually or constructively
    during the lifetime of the drawer is not capable of being the subject of a
donatio
    mortis causa
: Chalmers, 8th ed., p. 289;
Re Bernard

(1911), 2 O.W.N. 716
.

The donor's own promissory note given voluntarily is in no
    better position. A cheque is no more than an order to obtain a certain sum of
    money. A promissory note is no more than a promise to pay a certain sum of money.
    I find no case to sustain the contention that the delivery of the maker's own
    voluntary note is a valid gift either as a
donatio mortis causa
or as
    a gift
inter vivos
. See
Rupert v. Johnston
(1876), 40 U.C.R. 11
.

[30]

In order to rely on
    the provisions of the
BEA
, the appellant had to establish that the
    cheque constituted something other than a gift. As stated in
Crawford and
    Falconbridge on Banking and Bills of Exchange
, at p. 1419:

Where the donor is the drawer or maker and the donee is the
    payee, the gift will fail if the donee requires the assistance of the court to
    enforce it, as, for example, after a change of heart and countermand or receipt
    by the drawee of notice of the drawers death. However, where the gift is
    completed by delivery and the cheque is collected before the drawee learns of
    the drawers death, it may be an effective means of transferring the value
    intended to be given.

The case is quite different where a cheque or note is made
    payable to a person for valuable consideration. [Footnotes omitted.]

[31]

The
BEA
did not
    impose an independent legal obligation on Mary merely because she wrote a
    cheque. If she had changed her mind and refused to transfer sufficient funds
    into the account, or had she revoked the cheque by issuing a stop payment
    order, she would not have been bound to pay Arlindo. Her death did not change
    the underlying nature of the cheque. Possession of the cheque, without more,
    does not allow Arlindo to successfully sue for its value.

Dishonoured cheque

[32]

I turn to the
    appellants alternative submission that the cheque was dishonoured when he
    presented it to Marys bank, before her death, giving rise to a cause of
    action.

[33]

This argument was not
    made in the court below. This explains why there are no pertinent findings of
    fact made by the application judge. There is insufficient evidence in the
    record to permit us to make that determination.

[34]

Assuming for the
    purposes of argument that the cheque was dishonoured, the reason was evidently
    that there were insufficient funds in the account. Despite her good intentions,
    Mary could not give what she did not have and the appellant had no cause of
    action on the cheque. Unlike
Re Swinburne
,
[1926] 1 Ch. 38 (C.A.)
, there was no evidence that the bank here would
    honour the cheque if a customer had sufficient funds to do so in their other
    accounts. The evidence in this case was to the contrary. The bank could not
    transfer funds to cover the cheque without the customers authority.

[35]

If the appellant had
    brought an action on the cheque, either after he first went to the bank or
    after the cheque was returned funds frozen, he would have been met with a
    defence of lack of consideration.

(3)

Gift

[36]

The application judge
    was correct in holding that that the cheque was a gift
inter vivos
and
    that the law of gifts applied to the facts of this case.

[37]

The absence of
    consideration is one of the central indicia of a gift at law. By its very
    nature, a gift is a voluntary transfer of property to another without
    consideration:
McNamee v. McNamee
, 2011 ONCA 533, 106 O.R. (3d) 401,
    at para. 23. In
Peter v. Beblow
, [1993] 1 S.C.R. 980, McLachlin J. (as
    she was then) described the central element of a gift at law as the intentional
    giving to another without expectation of remuneration: at pp. 991-2.

[38]

The three elements of
    a legally valid gift identified by the application judge and referred to at
    para. 10, above, are well established: (1) an intention to make a gift on the
    part of the donor, without consideration or expectation of remuneration; (2) an
    acceptance of the gift by the donee; and (3) a sufficient act of delivery or
    transfer of the property to complete the transaction:
McNamee v. McNamee
,
    at para. 24. All three requirements are essential: Mary Jane Mossman & William
    F. Flanagan,
Property Law: Cases and Commentary
, 2nd ed. (Toronto:
    Emond Montgomery Publications Limited, 2004), at p. 441.

[39]

The first two elements
    are not at issue on this appeal. The central issue here is whether the delivery
    of the cheque for $100,000 into the hands of the appellant could be a
    sufficient act of delivery of the gift. The wrinkle in this case is that there
    were insufficient funds in Marys account.

Delivery

[40]

The delivery
    requirement has been a part of the modern law of gifts since the seminal case
    of
Irons v. Smallpiece
(1819), 2 B. & A. 551. The delivery
    requirement is an important distinguishing feature of gifts as compared to
    other methods of transferring property, such as by contract. As Mossman and
    Flanagan note in
Property Law: Cases and Commentary
, at p. 442:

The delivery requirement marks an important difference between
    contract law and the law of gifts. A contract involves an exchange of promises.
    A gift, a unilateral promise, does not. Contract law will enforce an exchange
    of promises (a bargain promise) with expectation damages. On the other hand,
    the law of gifts attaches no significance to a unilateral promise to pay in the
    absence of delivery.

[41]

The delivery
    requirement in the law of gifts continues to serve several important functions.
    It forces a would-be donor to consider the consequences of their expressed
    intention to make a gift and it furnishes tangible proof that a gift has in
    fact been made: see Bruce Ziff,
Principles of Property Law
, 6th ed. (Toronto, Thomson Reuters, 2014),
at
    pp. 161-2. See also: Philip Mechem, The Requirement of Delivery in Gifts of
    Chattels and of Choses in Action Evidenced by Commercial Instruments (1926) 21
    Ill. L. Rev. 341, at pp. 348-352.

Indicia of delivery

[42]

The most obvious form
    of delivery is the actual physical transfer of the subject matter of the gift
    from the donor to the donee such that the gift is literally given away: see
    Ziff, at p. 161.

[43]

However, in certain
    circumstances, such as where the item is unwieldy, courts have acknowledged
    that constructive delivery will suffice. In these cases,
the critical questions have been whether or not the
    donor retained the means of control and whether all that could be done had been
    done to divest title in favour of the donee: see Ziff,
at p. 165.

[44]

Ultimately, in order for
    a gift to be valid and enforceable, the donor must have done everything
    necessary and in his or her power to effect the transfer of the property:
Kavanagh
    v. Lajoie
, 2014 ONCA 187, 317 O.A.C. 274, at para. 13.

Gifts by cheque

[45]

A gift of cash can be readily
    effected by delivery to the donee. But a gift of money by cheque can be
    problematic, due to the nature of a cheque. A cheque is not money. Nor is it a
    transfer of property. It is a direction by the drawer (the banks customer) to
    the drawers bank to pay a sum of money to the payee:
Re Bernard
(1911),
    2 O.W.N. 716 (Div. Ct.), at p. 717. The direction can be revoked by the drawer
    at any time  for example, by a stop payment order, referred to in s. 167 of
    the
BEA
as countermand. Under s. 167, the banks authority to pay
    the cheque is terminated by countermand or when the bank receives notice of its
    customers death:
McLellan v. McLellan
(1911), 25 O.L.R. 214 (Div.
    Ct.), at p. 216;
Re Beaumont
, [1902] 1 Ch. 889, at p. 894.
[1]

[46]

For these reasons, a gift
    by cheque is not complete when the cheque is given to the donee. It is only
    complete when the cheque has been cashed or has cleared: see
Ziff,
at p. 166. Thus, in
Campbell v.
    Fenwick
, [1934] O.R. 692 (C.A.), a cheque given to the donee three days
    before the donors death and cashed a day before her death was found to be a
    valid
inter vivos
gift of the amount of the cheque.

[47]

In
Re Swinburne
, above, a case strikingly similar to this one, the Court of Appeal for
    England and Wales held that the death of the donor ruins a gift
inter
    vivos
by way of cheque if the cheque is not
    deposited before the donor dies. There, the donor had given the defendant a cheque
    shortly before her death. The bank refused to honour the cheque because of concerns
    about the validity of the signature. Before anything else could be done, the
    donor died. On the date the cheque was presented, the donor had insufficient
    funds in her current account, on which the cheque was drawn, but sufficient
    money to cover the cheque in her deposit account. In light of evidence given by
    the bank that it might honour a cheque in such circumstances, the court
    considered the case as though the whole amount was in the current account.

[48]

Nonetheless, the court held that a gift
inter
    vivos
was not made out. In reaching this conclusion, Warrington L.J.
    wrote, at p. 44:

[I]n order to make an effectual gift
inter vivos
there
    must be an actual transfer of the subject of the gift or of the indicia of
    title thereto. A cheque is not money. It is not the indicia of title to money. A
    cheque is nothing more than an order directed to the person who has the custody
    of the money of the [donor] requiring him to pay so much to the person in whose
    favour the cheque is drawn.

[49]

Similarly, in
Re
    Bernard
, above, the deceased had written a cheque for $1,000 payable to
    her sister and put it in her cash box with a note that her sister should
    present the cheque one month after her death. She gave the key to the box to
    her niece, with instructions to give it to her solicitor after her death. The
    box was duly opened after her death and the cheque was discovered. Chief
    Justice Mulock held that the donee could not enforce her claim, stating, at p.
    717:

A cheque is not a chose in action, but merely a direction to
    some one, who may or may not have in his possession funds of the drawer
    authorising him to pay to the payee a certain sum of money. Death of the drawer
    before presentation revokes such authority. Thus in this case the claimant is
    met with two difficulties, each fatal to her claim: one being that the cheque
    not having been acted upon by acceptance or payment, never lost its primary
    character of a mere cheque, which is not a chose in action, and is not the
    subject of donatio mortis causa; and the other being that the testatrix's death
    revoked the banker's authority to pay the cheque.

[50]

The appellant argues
    that death only terminates the banks authority to pay on a cheque, not the
    drawers duty to pay, citing Crawfords
The Law of Banking and Payment in
    Canada
. While this statement of the law is correct with respect to the
    authority of the bank, there must still be some independent duty to pay in
    order for the payee to be able to enforce a claim against the estate. As
    Crawford goes on to state, in the same passage cited by the appellant, at p.
    34-54.1:

However, since the bank has no duty to anyone but its customer
    to pay, unless it has certified the cheque, the only recourse available to the
    holder is action against the estate, assuming that the liability continues
    under the applicable provincial law dealing with successions. If the holder is
    not a holder for value, as where a gift or
donatio mortis causa
has
    been attempted, he may retain proceeds collected before the bank learned of its
    customers death, but will be unable to compel completion by payment
    thereafter, at least in any common law province. [Footnotes omitted.]

[51]

The appellant also cites
Campbell v. Fenwick
, above, in support of the contention that death
    terminates any power of revocation of a cheque by the estate of the donor and
    leaves the original gift in full vigour and effect. However, in
Campbell v.
    Fenwick
, the donee had successfully deposited the cheque the day before
    the death of the donor and the estate was trying to recover the funds. The gift
inter vivos
was therefore complete and death did not intervene.
    Indeed, the donee in that case had learned that a cheque would be revoked by
    death and knew the importance of having the cheque cashed during the donors
    lifetime. She deposited the cheque the day after she received it for this
    reason.

[52]

I conclude that the application
    judge was correct. The purported gift of $100,000 by way of cheque failed
    because it was not delivered before the bank received notice of Marys death.

(4)

Equitable principles

Estoppel by convention

[53]

Estoppel by convention
    is an equitable doctrine that holds parties to the facts or law or other
    assumption they have agreed to as the basis for a transaction to which they are
    parties:
Halsburys Laws of Canada
, Estoppel, 1st ed. (Toronto:
    LexisNexis Canada, 2016 Reissue), at HES-55. The nature of estoppel by
    convention was discussed by the Supreme Court in
Ryan v. Moore.
Bastarache
    J., at para. 4, said that:

Estoppel by convention operates where the parties have agreed
    that certain facts are deemed to be true and to form the basis of the
    transaction into which they are about to enter. If they have acted upon the
    agreed assumption, then, as regards that transaction, each is estopped against
    the other from questioning the truth of the statement of facts so assumed if it
    would be unjust to allow one to go back on it. [Citations omitted.]

[54]

Bastarache J. set out
    the following criteria for the application of the doctrine, at para. 59: (1) the
    parties' dealings must have been based on a shared assumption of fact or law:
    estoppel requires manifest representation by statement or conduct creating a
    mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly);
    (2) a party must have conducted itself, i.e. acted in reliance on such shared
    assumption, its actions resulting in a change of its legal position; (3) it
    must also be unjust or unfair to allow one of the parties to resile or depart
    from the common assumption. The party seeking to establish estoppel therefore
    has to prove that detriment will be suffered if the other party is allowed to
    resile from the assumption since there has been a change from the presumed
    position.

[55]

The application judge
    referred to this test. He found that the appellant did not meet the test
    because he did not act in reliance on an assumption that Marys cheque would be
    honoured. There was nothing unfair in the outcome because Mary could not give
    him what she did not have.

[56]

The appellant argues
    that the parties shared a common assumption that Mary had the necessary funds
    in her account and that her cheque to Arlindo would be honoured.

[57]

That may be true, but
    the assumption was made after Marys cheque was delivered to Arlindo. Everyone
    assumed that the cheque was good. Arlindo did not change his legal position as
    a result of that assumption. He simply hoped that he would receive Marys gift.

[58]

In my view, the
    doctrine of estoppel by convention does not assist the appellant.

Equity will not strive officiously to
    defeat a gift

[59]

The appellant relies on
    the principle that equity will not strive officiously to defeat a gift: see
Pennington
    v. Waine
, [2002] EWCA Civ. 227, at paras. 54-59, 60-67, 115-117. This is
    in contradistinction to the somewhat more familiar maxim, equity will not
    assist a volunteer.

[60]

In support of this submission,
    the appellant cites Ziff at p. 163. Referring to
T. Choithram International
    S.A. v. Pagarani
, [2001] 1 W.L.R. 1 (P.C.), the author suggests that an
    imperfect gift, which is not perfected by a transfer of possession to the donee,
    may nevertheless be effective where the donor retains possession of the gift
    but makes a declaration evidencing an intention to hold the property in trust
    for the donee. That is clearly not the case here.

[61]

The other authorities
    cited by the appellant, the decision of this court in
Bank Leu A.G. v.
    Gaming Lottery Corp.
(2003), 231 D.L.R. (4th) 251 (Ont. C.A.), and the
    decision of the British Columbia Supreme Court in
Mordo v. Nitting
,
    2006 BCSC 1761, at paras. 271-2, do not refer to the equitable principle
    invoked by the appellant. The former endorses the principle that a transfer of
    shares may be effective as between donor and donee notwithstanding that further
    acts might be required to make the transfer effective in law. The latter case
    was one in which everything necessary had been done to create a valid trust.
Pennington
    v. Waine
was also a case involving shares.
T. Choithram International
    S.A. v. Pagarani
was a trust case in which property was given to an
    already constituted trust.

[62]

In
Pennington v. Waine
,
    Lady Justice Arden observed, at para. 62, that [t]here must also be, in the
    interests of legal certainty, a clearly ascertainable point in time at which it
    can be said that the gift was completed, and this point in time must be arrived
    at on a principled basis. I respectfully agree with that observation in the
    context of this case, which involves the well-settled law concerning the
    delivery of a gift by way of cheque. The temptation to temper the wind to the
    shorn lamb, the allegory used in that case, should be resisted when it
    conflicts with settled law. I see no basis for its application in this case.

(5)

Costs

[63]

The application
    judges costs order was discretionary. He considered the relevant principles
    with respect to costs, including those set out in r. 57.01. He also considered
    the principles set out in the leading case of
Boucher v. Public Accountants
    Council for the Province of Ontario
(2004), 71 O.R. (3d) 291 (C.A.), and
    the modern approach to costs in estate litigation expressed in
McDougald Estate
(2005), 255 D.L.R. (4th) 435 (Ont. C.A.)
.
He noted as well the
    appellants refusal of what he described as a generous offer of settlement.
    The appellant has demonstrated no basis on which this court could find an error
    in the exercise of the application judges discretion with respect to costs. I
    would not grant leave to appeal costs.

E.

DISPOSITION

[64]

For these reasons, I
    would dismiss the appeal, with costs to the respondents in the amount of
    $15,000, inclusive of disbursements and all applicable taxes.

Released: G.R.S.  OCT 26 2017

George R. Strathy
    C.J.O.

I agree. K. van
    Rensburg J.A.

I agree. G.T.
    Trotter J.A.





[1]

Under the
BEA
it is not the death of the
    customer, but notice of the death to the bank, that operates to revoke the
    banks authority to pay. Where a cheque is cashed after the death of the donor,
    but before the bank received notice thereof, it has been held that the gift is
    valid and complete:
Kendrick v. Dominion Bank
(1920), 47 O.L.R. 372.


