App. Div. 1919

HESS

V.

GREENWAY.

Meredith,C.J.O.

On this branch of the case, Barker v. Ferguson (1908), 16 O.L.R. 252, Rogers v. Sorell, 14 Man. R. 450, and Betcher v. Hagell (1906), 38 N.S.R. 517, may be referred to.

In Barker v. Ferguson it was held that "a tenant taking part of a building, in other parts of which are defects likely to result in damage to him, should examine the premises and contract for the removal of such defects as are apparent, otherwise he will have no remedy afterwards against the landlord for damage. caused by such defects."

The case at bar is an â fortiori one for the application of the principle of this decision, because the defect existed in the demised premises.

I would, for these reasons, affirm the judgment dismissing the action as against the respondent Elliott, and dismiss the appeal from the judgment with costs. The same result must follow as to the other defendants. No case was made against the respondent Greenway, and the case against the respondent the Sinclair & Valentine Company also failed, for the reasons I have given in dealing with the case against the respondent Elliott, and for the additional reason that that company owed no duty to the appellant except the duty, in operating the heating plant, to do him no intentional injury.

Appeal dismissed.

APPENDIX.

Ontario cases decided on appeal to the Judicial Committee of the Privy Council and the Supreme Court of Canada and reported since the publication of vol. 44 of the Ontario Law Reports:

ELECTRICAL DEVELOPMENT Co. OF ONTARIO LIMITED V. ATTORNEY-GENERAL FOR ONTARIO AND HYDRO-ELECTRIC POWER COMMISSION OF ONTARIO, 38 O.L.R. 383, reversed by the Judicial Committee of the Privy Council: ELECTRICAL DEVELOPMENT CO. OF ONTARIO v. ATTORNEY-GENERAL FOR ONTARIO AND HYDROELECTRIC POWER COMMISSION OF ONTARIO, [1919] A.C. 687.

Ross v. SCOTTISH UNION AND NATIONAL INSURANCE Co., 41 O.L.R. 108, affirmed by the Supreme Court of Canada: Ross v. SCOTTISH UNION AND NATIONAL INSURANCE Co., 58 Can. S.C.R. 169.

43-45 O.L.R.

INDEX.

ABANDONMENT.

See LANDLORD AND TENANT, 1.

ACCIDENT.

See HIGHWAY, 5, 6-RAILWAY,
2-STREET RAILWAY.

ACCOUNT.

See EXECUTORS AND ADMINIS-
TRATORS, 1.

ACQUIESCENCE.

See INJUNCTION.

ADMINISTRATION.

To Appellate Division from
Order of Judge in Chambers
Reversing Order of Master in
Chambers Staying Reference pend
ing Appeal to Supreme Court o
Canada-Judicature Act, sec. 25
-Interlocutory Order-Leave to

See EXECUTORS AND ADMINIS- Appeal not Given Supreme

TRATORS, 2.

ADULTERY.
See HUSBAND AND WIFE, 2.

AGENT.

See CONTRACT, 3-INSURANCE,
3-PRINCIPAL AND AGENT.

AGREEMENT.

See CONTRACT.

ALIENATION OF

AFFECTIONS.

See HUSBAND AND WIFE, 1.

ALIMONY.

See HUSBAND AND WIFE, 2, 3.

AMALGAMATION.

See CONTRACT, 4.

AMENDMENT.

Court Act, sec. 76-Effect of.
RICHARDSON V. MCCAFFREY,

153.

See CONTRACT, 2, 3-COSTS-
CRIMINAL LAW, 5-EXECUTORS
AND ADMINISTRATORS, 1-HIGH-
WAY, 5-LANDLORD AND TENANT,
1-MORTGAGE PRINCIPAL AND
AGENT RAILWAY, 3-WORK-
MEN'S COMPENSATION ACT.

ARBITRATION AND
AWARD.

See HIGHWAY, 2.

ARCHITECT.

See MECHANICS' LIENS, 1.

ASSESSMENT AND TAXES.
1. Assessment of Land-Omis-
sion from Assessment Roll of
Value of Buildings on Land—

See CRIMINAL LAW, 3, 4- Clerical Error-Entry in Next

LAND TITLES ACT.

Collector's Roll-Correction of

ASST. & TAXES (Continued.) ASSTS. & PREFS.-(Continued.)
Error-Application of sec. 54 of Creditor plus Amount of his
Assessment Act, R.S.O. 1914, ch. Claim-Fraud upon Estate-Ac-
195 "Land Liable to Assess- count of Profits-Illegality of
ment"-Secs. 2 (h) and 22 (3) of Transaction-Public Policy

Act.

Promissory Note Made by Wives

REAMSBOTTOM V. TOWN OF of Insolvents-Answer to Action
HAILEYBURY, 345.
for Balance Due upon Notes.
WADE V. JAMES, 157.

2. Assessment of Manufactur-
ing Company for Income-Tem-
porary Investment in Dominion
Government Bonds - Ascertain-
ment of Amount of Assessable
Income Amount actually Re-
ceived as Interest-Deductions-
Assessment Act, R.S.O. 1914, ch.
195, secs. 2 (e), 11 (1) (b).
Re MASSEY-HARRIS CO. LIM-
ITED AND CITY OF TORONTO,
353.

In-

3. Income Assessment
come of Estate of Deceased Person
in Hands of Trustees not Presently
Payable to any one-Whether
Assessable at all-Where Assess-
able-Place of Residence of Trus-
tees-Place of Residence of De-

AWARD.

See HIGHWAY, 2-RAILWAY, 3.

BANKRUPTCY AND
INSOLVENCY.

See ASSIGNMENTS AND PRE-

FERENCES.

BANKS AND BANKING.
See COMPANY, 5-EXECUTORS
AND ADMINISTRATORS, 1.

BASTARD.

See INFANT, 2.

BEACH.

See LANDLORD AND TENANT, 2.

ACT.

ceased-Assessment Act, secs. 2 BED OF NAVIGABLE WATERS
(e), 5, 10, 11, 12, 13-"Person"-
Interpretation Act, secs. 10, 29
(x).

Re GIBSON AND CITY OF
HAMILTON, 458.

ASSIGNMENT OF INTEREST
IN INSURANCE POLICY
See INSURANCE, 4.

ASSIGNMENTS AND

PREFERENCES.
Assignment for Benefit of Credi-
tors-Purchase by Creditor and
Inspector of Assets of Estate-
Resale to Wives of Insolvents—
Consideration-Amount Paid by

See LANDLORD AND TENANT, 2.

BENEFICIARIES.

See INSURANCE.

BENEFIT CERTIFICATE.
See INSURANCE, 1.

BETTING.

See CRIMINAL LAW, 1.

BILL OF LADING.
See RAILWAY, 1.

BILLS AND NOTES.
See PROMISSORY NOTES.