Supreme Court of Canada
Ashwell v. Canadian Financiers Trust Co., (1918) 59 S.C.R. 657
Date: 1918-05-13
Ashwell v. Canadian Financiers Trust Co.
1918: May 09; 1918: May 10; 1918: May 13.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA.
Practice and procedure—Jury trial—Charge—Misdirection.
APPEAL from the judgment of the Court of Appeal for British Columbia, maintaining the verdict at the trial in favour of the plaintiff (respondent).
To an action brought to recover money payable on allotments of shares and for calls, the respondent, executors of a deceased shareholder, pleaded the invalidity of his subscriptions because of his mental incompetence when they were procured and because of alleged misrepresentations then made to him. On the trial both issues were submitted to a jury. In charging the jury the trial judge said: "One or both of these defences may be true, but they cannot both be true. If he were mentally incompetent, then the question of misrepresentation would not arise at all." The jury returned a general verdict for the plaintiff. The defendant moved to set aside the verdict and for judgment dismissing the action, and alternatively for a new trial on grounds of misdirection. The trial judge gave judgment in accordance with the verdict and the Court of Appeal affirmed this judgment.
On appeal to the Supreme Court of Canada, the judgment of the Court of Appeal was reversed and a new trial was ordered, with costs of this court and of the Court of Appeal, the costs of the trial to abide by the result.
Appeal allowed with costs.
C. W. Craig for the appellant.
G. H. Dorrell and J. A. Ritchie for the respondent.
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