SIR W. J.-I am of the opinion that the bond in this case was of a most unqualified, unilateral character.
There was no acceptance by the plaintiffs of the defendant's tender, nor was there any binding contract on the part of the plaintiffs to give the defendant the contract.
The company could give the contract to anyone they pleased until " all proper and necessary agreements for the construction and completion of the railway " had been entered into. And as the resolution of the board of directors says " a proper agree- RILment satisfactory to the board " had not been entered into, I cannot see how the defendant could furnish two acceptable sureties to secure the fulfilment of a RitchieC. J. contract which never had an existence, and which might never have an existence, and which the plaintiffs never prepared or tendered, as it seems to me they should have done. The terms of the contract were never settled and agreed on. It is true the commencement of the construction of the railway was to be on the 4th of February, and its completion by the 15th of September. To this day it does not appear that the terms of those proper and necessary agreements had been fixed, ascertained or agreed upon, and until the tender was accepted and these terms had been mutually aranged, surely the defendant was not to deposit 5 per cent. of the amount of his unaccepted tender, or to furnish two accepted sureties to secure the completion of the railway for the construction of which no contract had been agreed on.
For these reasons and for those given by the judges in the court below I think this appeal should be dismissed.
and concurred.
J.-I would disimiss this appeal.
with Mr Justice Osler's reasoning in the court below.
J.-I am of opinion that this appeal should be dismissed. The bond which the plaintiffs procured the defendant to sign appears to me to have been a clumsy mode adopted by the plaintiffs to extend the for the defendant putting his tender into such 4 Shape that it should be entertained by the plaintiffs. So.L Th.is the respondent, I have no doubt, understood, and I think he had good reason to understand, to have been the object and intent of the plaintiff in procuring him J. to execute the bond. The plaintiffs certainly had not entered into any obligation to give the defendant a contract to build their road; they not only reserved to themselves the right at their pleasure or caprice rejecting the sureties the defendant might offer upon the pretence that they were not acceptable to the plaintiffs, but the terms of the contract were to be matters of subsequent negotiation, which might lead to nothing as the plaintiffs had not bound themselves to anything, as has been ably pointed out in the judgments of the chief justice of the Appeal Court for Ontario and Mr. Justice Osler, to which I can add nothing and in which I entirely edcnur.
Appeal dismissed with costs.