Supreme Court of Canada.
Standard Bank of Canada v. McCrossan, (1920) 60 S.C.R. 655
Date: 1920-11-02
Standard Bank of Canada v. Mccrossan.
1920: October 14; 1920: November 2.
Present: Sir Louis Davies C.J. and Idington, Duff, Anglin Brodeur and Mignault JJ.
ON APPEAL FROM THE COURT OF APPEAL, FOR BRITISH COLUMBIA.
Bills and notes—Guarantee—Condition—Precedent or subsequent—Parol evidence.
APPEAL from the judgment of the Court of Appeal for British Columbia affirming the judgment of the trial judge, Murphy J., which dismissed the appellant's, plaintiff's, action.
The trial court and the Court of Appeal held that the respondent was not liable on a guarantee signed by him to secure an account to the appellant bank, on the ground that when signing it he verbally stipulated to the local bank manager as a condition of its use against him that certain notes on which he was liable as guarantor should be paid out of the funds to be advanced, which was not done.
On the appeal by the plaintiff bank to the Supreme Court of Canada, the court, after hearing counsel for both parties reserved judgment, and, at a subsequent date, the appeal was dismissed without costs, the court being equally divided. Sir Louis Davies C.J. and Idington and Brodeur JJ. were of opinion that, according to the circumstances of the case, they must accept the evidence of the respondent as to the facts and conditions under which the guarantee sued upon was handed to the bank, maintained as
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it was by the trial judge and confirmed by the Court of Appeal; and therefore they were of opinion that the appeal should be dismissed. Anglin and Mignault JJ., while not reversing the finding of facts of the trial judge, held that, in view of all the circumstances in evidence, the oral condition, to which the respondent deposes, was not a condition precedent to the use of his guarantee, but was rather a term of the guarantee, at the highest of the nature of a condition subsequent, and consequently that it could not be proved by parol evidence. Duff J. concurred in the allowance of the appeal.
Appeal dismissed without costs.
S.S. Taylor K.C. and F.G.T. Lucas for the appellant.
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