Majority
n'a m~me pas comparu sur cette action.
11 y a 1A, je crois, plus qu'une justification pour disposer de la pr~sente cause DurAc sans plus amples frais ou dlais.
Pour ces motifs, qui sont, en substance, ceux du jugement Fauteux J. formel et unanime de la Cour d'Appel, je rejetterais l'appel avec d~pens.
Judgment of the Court
J.:-The respondents Louis Gronbach and his wife, Dinah Elizabeth Gronbach, signed the document of January 13, 1949, fully understanding -its nature and effect, and there is no doubt that, at the time, the agreement was entirely satisfactory to them. It was said in the Court of Appeal that the agreement was impossible of performance by Mrs. Gronbach because she was not the owner of the stock in trade. An inventory was to be taken of it on the evening of January 31, 1949, and Petty was to pay for it in cash at wholesale prices. Accepting the position that Mrs. Gronbach alone was the "vendor" under the agreement, there would have been nothing to prevent the Court ordering specific performance thereof against her to the extent to which that was possible. She had agreed to the sale of the lands and premises, which would include any fixtures owned by her, for $35,000 and the money to be paid for the stock in trade was in addition to that sum. In our view the evidence discloses that Louis Gronbach, the owner of the stock in trade, had agreed to its sale, but, in any event, even if that be not so, the situation as between Mrs. Gronbach and Petty would not be affected. The agreement could, therefore have been performed by Mrs. Gronbach in the manner indicated.
Leaving aside for the moment the question of The Dower Act, R.S.M. 1940, c. 55, there was therefore no reason why Mr. and Mrs. Gronbach and Petty could not agree to the cancellation of the agreement. The suggestion that this should be done came from the Gronbachs and, while the J. sum of $8,000 demanded by Petty for the release of January
21, 1949, is large, we cannot find that any relationship existed between Petty, on the one hand, and the Gronbachs, on the other, to make it the duty of the former to take care of the latter. As stated by Sir Raymond Evershed
M.R. in Tuf ton v. Sperni (1): "Extravagant liberality and immoderate folly do not of themselves provide a passport to equitable relief."
Therefore, the claim to set aside the release and recover the $8,000 from Petty fails.
The trial judge has dealt satisfactorily in most respects with the position of the appellant Brock and we are of opinion that he came to the right conclusion that the solicitor, neither by himself nor by connivance with Petty, imposed on the Gronbachs the bargain demanded by Petty.
We also agree that it has not been shown that the solicitor was negligent. For these reasons we must with respect express our disagreement with any of the strictures passed by the Court of Appeal upon the solicitor and, therefore, the decisions referred to in their reasons for judgment on that aspect of the matter are not applicable.
Under the circumstances as shown in the evidence, the release cannot be held to be an unconscionable bargain in the sense in which that term is used in the cases but, if we had been -able to arrive at the opposite conclusion, we would then agree with the trial judge that the Gronbachs cannot secure any relief when they persist in their attitude that they are entitled to set aside the original document of
January 13, 1949. The Court has no jurisdiction to reopen the cancellation agreement and decree what ought to be paid by the Gronbachs to Petty.
The Dower Act was never referred to in the pleadings or at the trial and it was only after the hearing before the
Court of Appeal that that Court requested argument upon the point. Mr. Fillmore pointed out that if it had been raised, evidence might have been led to show of what, if anything, the homestead consisted. The Manitoba Dower
Act is not the same as the Alberta Statute considered recently by this Court in McColl-Frontenac Oil Co. Ltd. v. Hamilton (1), but even if the proper conclusion would be that the agreement of January 13, 1949, so far as any Kewn homestead of Mrs. Gronbach is concerned, was absolutely null and void for all purposes, and assuming that the point is open on the pleadings and should be dealt with by an Appellate Court, the money paid under the release of January 21, 1949, was paid under a mistake in law. The option of January 21, 1949, (exhibit 7), was not binding on Mrs. Gronbach but no order need now be made as the two years from February 1, 1949, referred to in that document have already expired. We also agree that the agreement of January 13, 1949, was not binding upon the respondent Frederick Gronbach. The fact that no order as to costs was made by the trial judge sufficiently takes care of both these matters as the main dispute was as to the position of Louis and Dinah Elizabeth Gronbach under the agreement of January 13, 1949, and under the release. The appeals are allowed with costs here and in the Court of Appeal and the judgment at the trial restored. The cross-appeal is dismissed without costs.
Appeal allowed with costs.