Bentley vs. Murphy - L.G. McCarthy, K.C., and A.M. Stewart for plaintiffs, appealed from the judgement of a divisional court (1 O.W.R. 726), allowing the cross appeal of the defendant Craig from the judgement of Britton, J. (1 O.W.R. 272), and dismissing plaintiff's appeal from that judgement. The action was for specific performance of an alleged agreement made by the defendants Murphy and Craig to sell and deliver to the plaintiff a steamer called the Island Queen, then at Kingston, free from all charges or incumbrances, for $5,000, payable $2,500 on delivery and $2,500 six months from the date of delivery. The offer was made by the defendants in writing under seal and was to be accepted within a certain time. This condition was complied with before there had been any revocation or withdrawal. The defendants refused to carry out the contract, and the plaintiffs now sue for damages and specific performance. The defendants pleaded that the agreement was made by the defendant Murphy only, and was made subject to Craig's ratification, they each having a half interest in the vessel, and that the offer under seal was obtained from Murphy by misrepresentation and fraud, he being ill in a hospital at the time. That the agreement was represented to him as providing for a cash payment of $2,500, and that the balance should be properly secured. The agreement as it read did not provide for security to be given for the balance unpaid, and Craig refused to ratify, and the defendants refuse to complete without this security, because, as they allege, the plaintiffs are men of no means. Britton, J. held that plaintiffs were not entitled to specific performance, and dissolved the injunction restraining a sale of the vessel. The divisional court, on appeal, varied the judgement of the trial judge by dismissing the action against the defendant Craig with costs, and by declaring that the defendant Murphy was bound by the contract made by him to the extent of one-half only of the vessel in question, and dismissed with costs the appeal of the appellants. C.H. Ritchie, K.C., for defendant Craig, and L.V. McBrady, K.C. for defendant Murphy, opposed appeal. Judgement reserved.
Craig's wharf: steamer Persia down.
Swift's wharf: steamers Spartan down; Rideau King from Ottawa.
Richardsons' elevator: schooners Echo, Laura D., Maggie L., Pilot, Ariadne and Granger from bay ports with grain.
M.T. company elevator: S.S. Rosemount and consort Minnedosa, from Duluth, with 130,000 bushels of wheat; schooner Katie Eccles, from Colborne with 8,500 bushels of oats; tug Thomson from Oswego with two coal laden barges; tug Bronson cleared for Montreal with two coal and two grain laden barges.