A contract dated October 30, 1926, for lease of premises for one year from November 1, 1926, gave to the lessee (appellant) an option to purchase the premises "for a period of one year from the date hereof at a price of $45,000 with a cash payment of $15,000 and balance to be arranged." Before the end of the year some discussions took place as to terms of payment of the balance but no further agreement was reached. On October 29, 1927 (a Saturday evening), the lessee, stating his intention to purchase (without reference to terms for the balance), tendered $15,000 (accompanied by a letter) as being the first payment under the option, which was not accepted, the lessor (respondent) requiring terms that the balance be " practically cash " or be placed in escrow in the bank pending delivery of title. On.October (Monday) the lessee had decided to pay the whole price in cash, but could not find the lessor who was out of town, and, on his return, notified him on November 3 that $45,000 was on deposit in a certain bank and would be paid out in accordance with the terms required.
The offer was refused, and the lessee claimed damages for breach of contract.
Held (affirming judgment of the Court of Appeal of British Columbia, 40 B.C. Rep. 403), Newcombe J. dissenting, that the lessee could not succeed. By the option terms the balance of the price was left to be determined by a further understanding between the parties, which did not take place; the lessor's terms not having been accepted on October 29, there was no enforceable agreement; acceptance on November 3 was too late.
Per Newcombe J., dissenting: The expression "balance to be arranged," having regard to the context, was unilateral, and intended only to evidence an obligation of the purchaser, the word " arrainged " having the sense of " provided."
To convert the option into a contract of sale it was not necessary for the lessee (purchaser) to do more than he did. It involved him in the obligation to provide $30,000 more, to be paid when the lessor (vendor) made out his title; and the passing of the conveyance and payment of said balance should, in ordinary course, take place simultaneously.
The lessee had fortified himself *PRESENT:-Duff, Mignault, Newcombe, Lamont and Smith JJ.