Gagnon v. Prince, (1882) 7 SCR 386

Supreme Court of Canada

Gagnon v. Prince, (1882) 7 SCR 386

Date: 1882-06-22

ANTOINE GAGNON

Appellant,

And

DAME HERMINE PRINCE

Respondent.

1882: May 2; 1882: May 3; 1882: June 22

PRESENT:—Sir W.J. Ritchie, C.J., and Strong, Fournier, Henry, Taschereau and Gwynne, JJ.

ON APPFAL FROM THE COURT OF QUEENS‘S BENCH FOR THE PROVINCE OF QUEBEC (APPEAL SIDE.)

“Débats de comptes”—Sale of stock in trade by a father to his son— Onus probandi—Affidavit of a person since deceased not evidence.

In a d débats de comptes" between A. G. (appellant) in his quality of tutor to M. L. H. C. R, a minor, and Dame H. P. respondent), universal legatee of her late husband L. R., who had had possession of the minor's property (his grandchild) as tutor, the following items, viz.: $5,466.63 (for stock of goods sold by L. R. to his son) and $451.07, and $00.76, for "cash received at the counter," charged by the respondent in her account, were contested.

n 1871, L. L. R. the minor's father, married one M. C G., and by contract of marriage obtained from his father, L. R., two immoveable properties em avancement d'hoirie. At the same time L. R., the father retired from business and left to L. L. R., his son the whole of his stock in trade which was valued at $5,466.63. making an inventory thereof. L. L. R. died in 1872 leaving one child, said M: L. H. C. R., and L. R., her grandfather, was appointed her tutor. There was no evidence that the stock in trade had been sold by the father and purchased by the son, or that the father gave it to his son. However, when L. R. in his capacity of tutor to his grandchild, made an inventory of his son's succession, he charged his son with this amount of $5,466.63.

Held, (reversing the judgment of the court below) that it was for the respondent to prove that there had been a sale of the stock in trade by L. R., to his son L. L. R, the minor's father and that there being no evidence of such a sale the respondent could not legally charge the minor with that amount.

As to the other two items these were granted to the respondent by the Court of Queen's Bench on the ground that, although they

[Page 387]

had been entered as cash received at the counter there was evidence that they had been already entered in the ledger. The only evidence to support this fact was the affidavit of one Hébert the bookkeeper of L. R. filed with the reddition de comptes before notary, prior to the institution of this action.

Held, reversing the judgment of the Court below, that the affidavit of Hébert was inadmissible evidence and therefore these two items could not be charged against the minor.

Appeal from a judgment of the Court of Queen's Bench for the Province of Quebec (appeal side) ([1]),'reversing judgment of the Superior Court in favor of the appellant. The facts of the case are as follows :

Louis Ludger Richard, of Stanfold, in the district of Arthabaska, died on the 15th of July, 1872, leaving one child Marie Louise Hermine Célanre Richard issue of his marriage with Dame Gélanire Gagnon. On the 23rd October of the same year the Honorable Losis Richard father of Louis Ludger Richard, was appointed tutor to the minor child of his son. Thereupon Louis Richard took "possession of the estate and succession of his son and administered it up to the time of his death which occurred on the 13th November, 1876. By his last will Mr. Louis Richard constituted his widow Dame Hermine Prince, the present respondent, his universal legatee, and she took possession of all the property of her deceased son, Louis Ludger Richard, which then belonged to her minor grand-child. On the 8th January, 1877, Dame Célanire Gagnon, widow of Louis .Ludger Richard, was appointed tutrix to her child, and in June, 1879, she instituted an action against the present respondent to recover an account of the administration of the minor's property by Louis Richard, as tutor, and by his widow, since his death. On 21st February, 1880, the Superior Court at Arthabaska rendered judgment condemning the present respondent to account in the manner asked for by the action. In conformity with this judgment

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the respondent rendered an account. Pending these proceedings, Madame Célanire Gagnon (widow Louis Ludger Richard) having married a second time, her father, V. Antoine Gagnon, was appointed tutor to the minor, and took up the proceedings in that quality.

The account rendered by the respondent showed a total expenditure by the tutor M. Louis Richard of	$15,362 07½
and a total receipt of	15,270 51½
leaving a balance of	$91 56

in favor of the respondent.

The appellant contested several items charged as expenditure, and the court of the first instance, in its judgment, struck off the following items from the expenditure :—

1st. A stock of merchandise	$5466 63
2nd. Upon the expenses of the rendering of the account.	25 95
3rd. A promissory note by Louis Ludger Richard to his father	600.00
4th A certain sum entered in the books as "cash received at the counter"	451.07
5th. Another similar sum	190.16
	$6,734 41

The judgment also added to the receipts, a few small sums amounting in all to $105.30.

The result now was this:—

1st. The receipts by this addition of $105.30 were increased to the total sum of	$15,375 81½
2nd. The expenses being cut off of the sum of $6734411 were reduced to	8,627 66¼
	$ 6,748 15

This left a balance of $6748.15 against the respondent, for which amount judgment was rendered against her.

[Page 389]

On appeal to the Court of Queen's Bench, that court agreed with the court below upon several items, but declared that the item of $5,466.63 (for the stock of goods) and the items of $451077 and $190.76 for c cash received at the counter "had been improperly struck off from the expenditure and should be reinstated therein.

These sums being reinstated in the expenditure, the total expenditure then amounted to $1,736.12; this left a balance of $639.69 against the respondent.

On appeal to the Supreme Court of Canada the three items struck off by the Court of Queen's Bench were under consideration, viz: 1st $5466633 (for the stock of goods); 2nd, item $451.07; and 3rd, item $190766 for c cash received at the counter."Item of $5466.63 (stock of goods).

This item was entered in the account, under the head of expenditure, and is in the following language:

"The accounting party charges in expenditure, the sum of $5,466.63, being part of the sum of $5,676944 entered in the inventory under the head of debts due to the said Louis Richard for goods sold and delivered to the said L. L. Richard, as per statement now fyled as exhibit H."

The contestation of this item is as follows:

"And the party accounted to declares that she contests the following items of the account:"

"1. The sum of $5466633 for goods sold and delivered to the said L. L Richard as per statement"

"Because the goods in question never were sold by the said honorable Louis Richard to the said L. L. Richard, but on the contrary had been given to him and were charged against the said L. L. Richard in the books of the said honorable Louis Richard several months only after the death of the said L. L, Richard to wit, in November, 1872. That moreover, that sum of $5,466.63 is charged for a stock of goods, the inventory

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of which had been made more than six months r before the said L. L. Richard had obtained delivery of the goods in question, the said honorable Louis Richard, having continued his trade during the said six months, and having sold a large portion of the goods, thus entered in the inventory."

There was no writing to establish whether it was as a gift or as a sale that these goods had been left by the father to his son nor was there any witness who could relate what was the agreement which may have taken place between the father and the son with regard to those goods.

It was proved, however, that in October, 1871, Louis Ludger Richard, who up to that time had been a clerk in his father's establishment, was married to the plaintiff Marie Célanire Gagnon; and that Mr. Richard on that occasion withdrew from business, and left him the whole of his stock-in-trade, valued, according to the inventory which was then taken of it, at the sum of $5,466.33. That inventory was closed on the same day that the marriage contract was passed, or on the previous day.

By this marriage contract, Mr. Richard, the father, gave to his son en avancement d'hoirie, a house to make a dwelling-house, and the store or building wherein he had carried on his trade at Stanfold for a great many years.

As the other two items $451.07 and $190.76 a Mr. Hébert, the bookkeeper of Mrs. L. Richard, in his affidavit, which is appended to the first account rendered before a notary by the respondent, declares as follows:

" To my personal knowledge, all the different amounts above mentioned and forming the sum of $693455 are entered in the cash book by the said Louis Richard and are entered under the heading of "cash received at the counter."

[Page 391]

This Mr. Hébert was not examined as a witness having died previous to the institution of the action.

As to items $451.07 and $190.76, making together the sum of $641.83. They were allowed on the ground that they are twice credited to the minor in Mr. Richard's books, once in the account of moneys received for cash sales over the counter, and again in the general account book. The Superior Court rejected this charge, as being entirely unsupported by evidence. The Court of Queen's Bench restored it.

The appellant, thereupon, appealed to the Supreme Court of Canada.

Mr. Irvine, Q. C, and Mr. Felton, with him, for appellant:

The first point to be considered is, the item number I in the débats de comptes, amounting to $5,466.33, charged in the account, for goods sold and delivered by the Honorable Louis Richard to his son Louis Ludger Richard. The pretension of the appellant is, that this merchandise which formed the stock in trade of Mr. Louis Richard, was not sold but given by him to his son. There is conflicting evidence upon this head, but the onus of proof is upon the respondent to show that these things were sold, and that the amount charged was due by Louis Ludger Richard for the price of them. At the time of the death of Louis Ludger Richard this stock of goods was in his possession and had been in his possession for several months. Louis Richard, the father was a merchant who kept accurate books of account, and yet no entry was made in any of them showing that his son was indebted to him in any sum of money, as the price of this stock, until several months after the death of Ludger Richard, when an entry to that effect was made by Louis Richard although from time to time various small items were charged against

[Page 392]

Ludger Richard during his lifetime and at the dates when the payments were made. Under these circumstances, if the respondent desires to claim against the succession of her son for the price of these goods it was upon her to establish by proof that they had been sold to him and that this sum of money was due. No satisfactory evidence to this effect has been given.

As to items $451.07 and $l90.76. The only evidence is that of Hébert, who died before the case came on for trial, and who had under other circumstances, made an exparte affidavit in which he stated that these amounts taken from the account book known as the "livre de recettes" were also included in the cash receipts, argent au comptoir." It is plain that in order to recover this amount in contradiction to her own account books it was incumbent on the respondent to establish its correctness by legal evidence. No proof has been attempted beyond the production of the affidavit of Hébert it is difficult to find any precedent for such a case The court below has charged the minor, who is interested in this account, with a large sum of money on the evidence of a witness never examined in court whom the appellant has had no opportunity of cross-examining, and who has in fact given no legal evidence whatever. The books of account of the late Mr. Richard and of his succession were carefully kept, and it is difficult to suppose that they would have contained so serious an error as Hébert's affidavit suggests and one which must have been continued and repeated over a considerable length of time. Moreover an examination of the books will shew that the statement of Mr. Hébert is impossible On many of the days on which the amounts are shewn by the "livre de recettes" to have been paid the amount received as argent an comptoir" was not sufficiently larffe to include them

[Page 393]

Mr. Laurier, Q. C, for respondent:

As to the first item $5466 the Superior Court came to the conclusion that L. L. Richard had received the stock in trade from his father as a pure gift at the time he went into business. The Court of appeals held that it was not a gift, and that it was properly charged as a debt due by L. L. Richard to his father. The question therefore is whether the stock of goods put in the hands of his son by Mr. Richard the father at the time of the former's marriage was an absolute gift or not? The evidence in this case does not support the appellant's "pretension Casual conversations are not sufficient to prove an absolute gift or a don manuel. See Richard Voycr ([2])

I submit also that a donation cannot be proved by parole evidence but must be proved according to the ordinary rules of law.

The principle which decides that a donation of move-able property exceeding $50 must be proved by written evidence, though the donation can be made by verbal agreement, is the principle which applies to all contracts in the French law The contract of sale for instance, can be made by verbal agreement but if it exceeds $50, it has to be proved by written evidence Nothing is more certain. The don manuel is no exception to this rule, and though the point was at onetime controverted, it can no longer admit of a doubt, since the latest commentaries upon the code Napoléon.

Moreover, notwithstanding what has been said by the learned counsel for the appellant I submit there is proof of record establishing that there was a sale. .

In the first place Mr. Richard himself treated it as a sale and so entered it in his books But it is said that Mr. Richard made that entry in his books only after his son's death.

[Page 394]

If this contention, on the part of the appellant, means anything, it means that Mr. Richard would have been guilty of a most dishonest act, that after having made a gift to his son he would have, after the latter's death taken the means of depriving his child of it. But the facts as proved vindicate his memory.

In the first place it is true that Mr. Richard made that entry in his day book and in his ledger only after his son's death but there was an entry made in another book and the whole circumstances are fully explained by the testimony of Octave Ouellet. In October, 1871 previous to Ludger Richard's marriage and to Mr. Richard's withdrawing from business. Octave Ouellet was employed by the latter to make the inventory of the stock.

That inventory is entered in a book marked "H" in this cause; the goods footed up to the sum of $5909.42. Ouellet says that Mr. Richard let his son have these goods at the price of 16s. 9d. in the £. Then there are added, a certain quantity of goods from the Somerset store, for which Ludger Richard was paying the full price. The total amount of the goods from the stores of Stanfold and Somerset amounted to $6574 61

The following entry is then found in the book, viz.:

Cr. by deduction of 3s. 9d. upon the account of the inventory of 1871, to wit:

$5,909422

1,107 98

$5,466 63

Ouellet says in his deposition that that entry was made by himself and that to the best of his recollection it was so made at the time that the inventory was taken. The following year after Ludger Richard's death he was again called to take part in the inventory of the estate, and then be advised Mr.

[Page 395]

Richard to report that entry from that book, to his daybook and his ledger.

All this not only explains how, and when, the entries were made in the books of Mr. Richard but it also shows that the transaction was a sale that there was a price agreed upon and delivery.

As to the two other items, one of $450.07 and the other of $190.76, which have been struck off the expenditure, the appellant has made the best possible proof under the circumstances, that these two sums had been entered in the receipts, as c cash at the counter," and again in the collection. This double accounting is due to the fact that the appellant viz: the present respondent has entered in the receipts the cash received at the counter and also the cash received for collections according to the ledger when such collections were also included in the c cash received at the counter."

Hébert who could have established that fact in a precise manner, is dead and could not be heard as a witness. His affidavit alone cannot make a complete evidence But we believe that this is one of the cases where in a case for an account, the appellant, the accounting party, has a right to he believe don her oath after having proved the practice followed by Mr. Richard and the death of her principal witness

TASOHEREAU, J., delivered the judgment of the court:

In this case, I am opinion to allow the appeal. Three items of the débats de comptes are in controversy. As to the first one, amounting to $5,466.63, the only question is, were goods to that amount sold by the honorable Louis Richard to his son Ludger Richard? Upon the respondent, who alleges such a sale, was the onus of proving it. Now, where is the evidence of it in this record? I cannot find any and the Court of Appeal, although it reversed the judgment of the Superior

[Page 396]

Court as to this could not find any. If there was a sale what were the conditions and terms of payment? None that I can find out in the evidence adduced On the cross-examination of the witness 'Jean Baptiste Allard, the respondent attempted to prove terms of payment, but not only failed to do so, but established clearly that Louis Richard never sold these goods to his son—but gave them under certain charges and conditions

The appellant has, in my opinion, clearly proved that these goods were a donation by his father to him; but I base my judgment on the ground that the respondent had to prove a sale and failed to prove one.

As to the other two items submitted to our consideration, I am also of opinion that the judgment of the Superior Court was right, and that the Court of Appeals erred in reversing it. They are small items one of $451.07 and the other of $190.76 They have been allowed by the Court of Appeal on the ground that, in Richard's books The minor child is twice credited for them once in the account of monies received for cash sales over the counter, and once in the general account book. Now, in order to recover this amount, in contradiction to her own account books the respondent had to establish it by legal and clear evidence. What evidence has she produced? None whatever but an affidavit of a deceased person given, voluntarily and extra judicially, before a commissioner of the Superior Court. it may well be asked what authority has this Commissioner to receive this affidavit. If he had none there is no affidavit, no oath whatever. But leaving this question aside, and taking this affidavit as duly given, how could it be admitted as evidence in this case is a question which the respondent's counsel failed to answer at the hearing before us. The oath of the respondent cannot be construed in her favor. She swears that these items are

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correct, hut swears it, not of her own knowledge, but only because Hébert, the deceased person, said it in his affidavit. It is unfortunate that Hébert died before he could be examined in this case, but, according to the Court of Appeal, it is not the respondent's misfortune whose witness he would have been that such should be the case, but the appellant's misfortune.

This appeal should, in my opinion, be allowed with costs in all the courts against the respondent.

Appeal allowed with costs.

Solicitors for appellant: Felton & Blanchard.

Solicitors for respondent: Laurier & Lavergne.

Application was made on behalf of respondent to the Privy Council for leave to appeal but leave was refused.