METROPOLITAN ENGINEERING WORKS Vs. WALTER EUGENE DEBRUNNER

JUDGEMENT

(1.) The short point which arises for decision in this suit is the meaning of the words "up to Wednesday" contained in a letter, dated the 12th May 1917, and addressed by the defendant to the plaintiff Company and whereby the defendant offered to sell to the plaintiff Company his Motor Car in these words: "Nevertheless I am quite willing to hand over the Motor Car to you against a oheqneof Rs. 3,120,--Rs. 3,000 being the costs of the Car and Rs. 120 interest. As I intend advertising the Car unless you wish to have it, please understand that my offer only holds good up to Wednesday next, as the time I have is limited." It is not disputed that the plaintiff Company some time on Wednesday the 16th May tendered Rs. 3,120 in Government Currency Notes to the defendant and asked for delivery of the Car in accordance with the offer contained in the letter of the 12th May. The defendant, however, refused the tender contending that his offer expired at midnight on Tuesday, May 15th, and that the phrase up to Wednesday" was exclusive and not inclusive of Wednesday. The defendant claimed to give evidence of his meaning and intention when he wrote the letter and of the sense in which the plaintiff Company understood the offer, but I refused to admit this evidence having regard to Section 91 of the Evidence Act. I have not been able to find, nor have Counsel who appeared before me, any authority in which the meaning and effect of the word "up to" has been judicially considered; but Counsel have referred me to various authorities in which the meaning of the word until", which seems to me to be synonymous with "up to", has been considered and discussed. These authorities are collected in the late Mr. Stroud s Judicial Diationary, 2nd Edition, Volume III, 2142, under the heading "until", and it appears from Rex v. Stevens (1804) 5 East 244 : 102 B.R. 1063 that the word "until" may be construed either as exclusive or inclusive of the day to which it is applied, according to the context and subject- matter.

(2.) It appears from the cases cited in Mr. Stroud s book that in a memorandum enlarging the time within which an award may be made "until" will generally include the whole of the day named, that where a defendant is given "till" a certain day to plead, judgment signed for want of a plea on that day was bad as the defendant might have delivered a plea during such day.

(3.) In Bellhouse v. Mellor (1859) 411. and N. 116 : 28 L.J. Ex. 141 : 15 Jur. (N.S.) 175 : 118 R.R. 343 : 157 E.R. 780 a bankrupt was granted protection until the 29th July from all process, and it was held that the protection extended to the whole of the 29th July. In Isaacs v. Eoyal Insurance Go. (1870) 5 Ex. 296 : 39 L.J. Ex. 189 : 22 L.T. 681 : 18 W.R. 982 goods were insured from the 14tli February 1868 until the 14 August 1668, and it was held that under the terms of the policy the whole of the 14th August was protected.