Schwersenski v. Vineberg, (1891) 19 SCR 243

Supreme Court of Canada

Schwersenski v. Vineberg, (1891) 19 SCR 243

Date: 1891-06-22

DORON SCHWERSENSKI (PLAINTIFF)

Appellant;

And

MOSES VINEBERG (DEFENDANT)

Respondent.

1890: Nov 26; 1891: June 92

PRESENT: Sir W. J. Ritchie C.J. and Strong, Fournier, Taschereau and Patterson JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

Receipt—Error—Parol evidence—Arts. 14, 1234 C.C.

S. brought an action to compel V. to render an account of the sum of $2,500, which S. alleged had been paid on the 6th October, 1885, to be applied to S.'s first promissory notes  maturing and in acknowledgment of which V.'s book-keeper gave the following receipt: "Montreal, October 6th 1885. Received from Mr. D. S. the sum of two thousand five hundred dollars to be applied to his first notes maturing. M.V., per F.L." and which V. failed and neglected to apply. Y. pleaded that he never got the $2,500 and that the receipt was given in error and by mistake by his clerk. After documentary and parol evidence had been given the Superior Court, whose judgment was affirmed by the Court of Queen's Bench, dismissed S.'s action.

On appeal to the Supreme Court of Canada:

Held, 1. That the finding of the two courts on the question of fact as to whether the receipt had been given through error should not be interfered with.

2. That the prohibition of Art. 1234 C. C. against the admission of parol evidence to contradict or vary a written instrument, is not d'ordre public, and that if such evidence is admitted without objection at the trial it cannot subsequently be set aside in a court of appeal.

3. That parol evidence in commercial matters is admissible against a written document to prove error. Ǽtna Insurance Company v. Brodie, (5 Can. S.C.R. 1), followed.

APPEAL from a judgment of the Court of Queen's Bench, for Lower Canada (appeal side), ([1]), confirming

[Page 244]

the judgment of the Superior Court by which the action of the appellant was dismissed with costs.

The action was brought by the appellant to compel the respondent to render an account of the sum of two thousand five hundred dollars, which appellant alleged he paid to the respondent, and in default of rendering the said account that the respondent be condemned to pay this sum of money to appellant with interest.

The receipt upon which the action was based reads as follows:

"MONTREAL, October 6th, 1885.

" Received from Mr. D. Schwersenski the sum of two thousand five hundred dollars ($2,500), to be ap- plied to his first notes maturing.

"$2,500.00.

‘M. VINEBERG,

"Per F. L."

At the trial the appellant's books of account were produced as well as a judicial abandonment made by the plaintiff in January 1886, and by such abandonment it appeared that the respondent was entered as his creditor for the sum of $5,300, and after hearing the witnesses the Superior Court found as a matter of fact that the sum of $2,500 for which the receipt had been given had not been paid to respondent and dismissed the plaintiff's action. The Court of Queen's Bench confirmed the judgment of the Superior Court.

J. P. Cooke for appellant contended that the evidence did not support the finding of the courts below, and that the parol evidence admitted to contradict the receipt was illegal; art. 1234 C. C.; Bell v. Arnton ([2]); and also cited and relied on the fol-lowing authorities: Chamberlain v. Ball ([3]); West v. Fleck ([4]); Lemontais v. Amos ([5]); Dominion Oil Cloth

[Page 245]

Co. v. Martin ([6]); Ulster Spinning Co. v. Foster ([7]); Anderson v. Battis ([8]); Lynn v. Cochrane & Nivin ([9]); Leduc v. Prevost ([10]); Rousseau v. Erans ([11]); Decelles v. Samoisetle ([12]); Gilchrist v. Lachaud ([13]); Rowell v. Newton ([14]). Ordinance of 1667, table 20, art. 2; article 1341 C. N.; Taylor on Evidence ([15]).

Hutchinson for respondent contended that the parol evidence was admissible: Brodie v. Ǽtna Insurance Co. ([16]); Whitney v. Clark ([17]); Grenier v. Pothier ([18]). If so the courts below having found as a fact that the receipt had been given in error the appeal should be dismissed

SIR W. J. RITCHIE C.J.—For the reasons assigned in the considérants of the judge of the Superior Court I think this appeal should be dismissed, and the judgment of the Superior Court affirmed with costs in all the courts.

STRONG and FOURNIER JJ. concurred.

TASCHEREAU J.—The plaintiff, appellant, claims from the respondent a sum of $2,500 upon a receipt for that amount dated October 6 1885, which sum, as the appellant alleges, the respondent failed to apply as agreed upon. The respondent pleads that this receipt was given through error, and that he never received the $2,500 from the appellant. The judge of the Superior Court who heard the witnesses vivû voce held that the respondent had clearly proved his plea and dismissed the action. The Court of Appeal confirmed that judgment.

[Page 246]

Now, the appellant asks us to reverse on that question of fact. We intimated at the hearing that not only could we not see in this case anything to take it out of the well settled rule of this court on appeals on questions of fact, but that the evidence that this receipt had been given through error seemed to us overwhelming. The appellant then contended for the first time that parol evidence against this receipt had been illegally admitted. He never objected to the evi-deuce at the trial, and never even mentioned the point in the Court of Appeal. Now, in France, an objection of this nature cannot be taken for the first time in the Cour de Cassation ([19]). And why ? Because the objection is not based on a law of public order. The weight of authority seems to be now that the prohibition of article 1284 C. C. against the admission of parol evidence to contradict or vary a valid written instrument is not d'ordre public, and that, consequently if such evidence is admitted without objection the party to whom it is opposed cannot subsequently impeach its legality. Article 14 C. C. which enacts that prohibition laws import nullity does not alter the question, or rather is nothing but the same question, whether it is a nullilé d'ordre pub-lic, or a nullilé relative only, or one which can be waived or not ([20]). The authorities pro and con are collected in Sirey's Codes annotés, under art. 1341, Nos. 4 & 5, and an arrêt of the Cour de Cassation ([21]). However, independently of this consideration the appellant's contention is untenable. According to the case of Ǽtna Life v. Brodie ([22]), and in this court ([23]) it is settled law that the evidence now objected to here by the appellant was perfectly

[Page 247]

legal and rightly admitted, and that in commercial matters parol evidence can be adduced to prove error in a written instrument. How far this rule as to proof of error in writing can be extended to noncommercial matters as falling within the cases in which the party claiming could not procure proof in writing, we have not here to consider.

Patterson J. concurred.

Appeal dismissed with costs.

Solicitor for appellant: J. P. Cooke.

Solicitors for respondent: Hutchinson & Oughtred.