value of the property to be paid sixty days after the loss shall have been ascertained in accordance with the terms and conditions of this policy, which are a part of the consideration for this insurance, and satisfactory proof of the same shall have been made by the assured and received at the office of the company in Hamilton.

At the trial before the learned Chancellor, he directed the plaintiffs to dispose of this question as to the action. being too late before going into the general merits, and expressed his opinion that the lapse of time was a bar, unless explained, waived, or accounted for.

The plaintiffs offered no evidence on that point, and the result was the dismissal of the action, with costs.

I cannot see any objection to this mode of dealing with the case. If the objection be fatal it would be a useless task to hear and decide on the mass of written or oral testimony on the other issues raised.

The point has been several times before our courts.

In Lampkin v. Western Assurance Co., 13U.C.R. 361, the limitation clause was "twelve months next after the cause of action should accrue," with the usual clause for payment in sixty days after proof. Plea that fire took place and property destroyed more than twelve months before. action brought. Held bad on demurrer. Sir J. Robinson says, it was assumed to be necessary to sue in twelve months after loss happening, while the policy spoke of twelve months after cause of action accrued.

In Provincial Insurance Co. v. Etna Insurance Co., 16 U.C.R. 135, the limitation was within twelve months after any loss or damage shall accrue. Defendants insisted that these words can only be taken to refer to the casualty insured against, and the court held that the defendants were right in that. It was a re-insurance case and plaintiffs argued that the loss meant the time they were put to loss by paying the amount.

In Hickey v. Anchor Assurance Co., 18 U. C. R. 433, the limitation was six months next after any loss or damage should occur. The defence was pleaded and was met by

certain equitable answers, which were held insufficient. The court said there was no doubt the plea was a good legal bar. Mr. Justice Burns considered this six monthslimitation a very reasonable provision, "for the company will then know that they need not keep witnesses or look after proof and other things connected with a loss beyond the six months."

The American cases are very strong in favor of the construction claimed by plaintiffs. In Mayor of New York v. Hamilton Insurance Co. (1868), 39 N. Y. 45, the Court held that a clause like this "six months after loss or damage shall accrue" is to be construed in connection with the other clauses, and thus construed means that the action shall be commenced within six months after the right to sue the company has accrued. Mix v. Andes Insurance Co., (1876) 9 Hun (N. Y.) 397, is to the same effect, citing the preceding case. In both cases there were clauses deferring payment until sixty days after loss, in one case "adjusted," in the other "ascertained and proved."

Hay v. Star, 77 N. Y. 235, (1879,) is to the same effect. It was considered doubtful whether in strictness the limitation applied except in a case where an award was made. The Court said: "The limitation should be construed to commence when the loss was due and payable, and not from the time of the physical burning of the property. The error of the position is in supposing that courts are bound to apply the words (after the loss shall occur) to the time the property was actually destroyed. It is far more reasonable to refer it to the time when the loss has become a fixed demand against the company, and the assured has a right to bring an action for it. The loss should be deemed to occur when the company pays it, or is lawfully called upon to pay it."

In Steen v. Niagara Fire Ins. Co., (1882) 89 N. Y. 323. the facts are hardly distinguishable from our case except twelve months being the time instead of six. There it was declared that no claim should arise from the mere happening of the loss, nor until sixty days after proof received and loss satisfactorily ascertained and proved. The court

says that these conditions cannot be disregarded in getting at the true understanding of the parties as to the meaning of the clauses in question. That the company's contention narrows the twelve months down to ten and (p. 323) that having by postponement of time of payment secured itself from suit, it did not intend to embrace that period within the time, after the expiration of which it could not be sued.

In Spare v. Home Mutual Co., U. S. Circuit Court, Oregon (1883) 9 Sawyer 142, the learned judge followed the New York cases, of which he approves. The conditions were substantially as here.

The subject is discussed in May on Insurance, 2nd ed., secs. 478-9; Wood on Limitation of Actions, (1883) p. 87, sec. 50, states the decisions in insurance cases, but refers to the Illinois case which takes the opposite view, Johnson v. Humboldt Insurance Co., 91 Illinois Supreme Court 92 (1878.)

This was the clause as to the action twelve months next after the loss shall occur, and as to amount being payable sixty days after notice and proof, &c. The judgment of the court points out the words used here, "a plain, well understood and accepted meaning," and that according to the well known rules of construction "we are wholly unable to perceive how the meaning of this language can be misunderstood, or that different persons could arrive at other than one conclusion by simply reading the clause." When did the loss occur? Manifestly at the time the fire destroyed the property. In what consisted the loss? Obviously in the destruction of the building by fire. We are wholly unable to conceive that language could have been used that could have rendered the meaning plainer, "We have examined the authorities referred to although by respectable courts we should not feel bound by them as authority, and should hesitate long in reaching and adopting such a conclusion,"

*

We were also referred to Cornell v. Liverpool and London Ins. Co., 14 Lower Can. Jurist 257, decided in 1869,

where the court adopted the literal view of twelve months nextafter loss has occurred. The effect of clauses as to payment after proof was not considered-apparently the case did not require it.

I cannot understand how words so very plain and distinct as those before us can be held to mean something wholly different, and I share the opinion so emphatically announced by the Supreme Court of Illinois that language could not have been used to have rendered the meaning any plainer.

We are asked to read the words "six months after the loss or damage shall have occurred" to mean six months after the plaintiffs' cause of action has accrued. I think the distinction is perfectly clear. The New York decisions give us most admirable reasons for holding that such ought to have been the meaning of the contracting parties. I think we must hold that such is not the expressed meaning. We ought not to venture on such a wide departure from the very plain and evident meaning of the words used.

If I had the right to decide the case on my opinion of the reasonableness of a six months' limitation in the same instrument that allows two months for payment after completion of proofs of loss, I would not hesitate to pronounce against the fairness of such an arrangement.

I think the judgment was right and that the appeal should be dismissed.

BURTON, and PATTERSON, JJ. A., concurred; OSLER, J. A., by consent of parties took no part in the judgment.

Appeal dismissed, with costs.

CLARK V. ECKROYD.

Money paid under mistake of fact-Negligence of payer-Demand or notice before action.

The plaintiffs ordered goods from the defendant in Montreal to be shipped to them in Toronto, and three several consignments were made, one of which having been addressed to "J. H. C. & Co.," instead of "H. E. C. & Co.," never reached the plaintiffs, but was, after remaining eighteen months in possession of the carriers, in due course sold for payment of the charges thereon. The plaintiffs in ignorance of the nonreceipt of the third consignment accepted and paid the defendant's draft for the amount of the invoices of the three consignments. Subsequently they discovered their error and demanded a return of the amount paid, which the defendant refused.

Held, that although the plaintiffs had had the means within reach during all this time of ascertaining the true position of matters, there was no duty cast on them in relation to the defendant which made their delay in discovering the mistake laches on their part, and that they were entitled to recover back the amount paid as money paid under a mistake of fact.

Semble. A demand of repayment or notice to payee of the mistake was necessary before action.

THIS was an appeal by the defendant from the judgment of the Common Pleas 'Division, reversing the judgment of Wilson, C. J., at the trial, and directing judgment to be entered for the plaintiffs.

The action was brought to recover back money which the plaintiffs had paid underța mistake of fact under the following circumstances: The plaintiffs, tradesmen in Toronto, carrying on business under the name of H. E. Clark & Co., had been in the habit of dealing with the defendant, who carried on business in Montreal, ordering goods from him, to be forwarded by the Grand Trunk Railway, and paying for them by accepting his draft on them after the goods had been received. Goods thus forwarded were delivered by the railway company in the usual course of business at the plaintiffs' factory in Toronto. Two invoices of goods thus sent, bearing date the 13th and 27th October, 1882, were forwarded, and the goods mentioned therein were duly received by the plaintiffs.

A third invoice, bearing date the 3rd October, but which should have been dated the 3rd November, 1882, for goods 54-VOL. XII A.R.