Johnston & Ward v. McCartney, [1934] SCR 494

Supreme Court of Ganada

Johnston & Ward v. McCartney, [1934] S.C.R. 494

Date: 1934-03-06.

Johnston & Ward (Plaintiffs) Appellants;

and

T. P. McCartney (Defendant) Respondent.

Present: Duff C.J. and Rinfret, Cannon, Crocket and Hughes JJ.

1934: February 19; 1934: March 6.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA EN BANC

Guarantee—Action against guarantor of account—Alleged extension of time by creditor to debtor—Alleged misdirection in charge to jury---Alleged insufficiency in direction, and in submission of questions, to-jury—Failure to object at trial, as precluding objecting on appeal.

Appellants sued respondent as guarantor of an account of R. At trial, after answers by the jury to certain questions submitted, judgment was given dismissing the action (the ground being that appellants

 [Page 495]

had agreed with R. without respondent’s consent to extend the time for payment), which was affirmed by the Supreme Court of Nova Scotia en banc, 7 M.P.R. 89. On appeal to this Court:

Held: The appeal should be dismissed.

On the evidence it could not be said that there was no reasonable basis for the jury’s findings attacked by appellante.

Certain objections by appellants, claiming misdirection, insufficient presentation of their case, and failure to direct in certain respects, in the trial judge’s charge to the jury, were held to be not justified.

Held, further, that, had there been any non-direction or insufficient direction, or if there should have been, as contended, a further question submitted to the jury, the appellants, having failed on the trial to make objection or to request the submission of any further question to the jury, were precluded in the circumstances of this case from raising objection on appeal. Nevili v. Fine Art & General Ins. Co., [1897] A.C. 68, at 76, Seaton v. Burnand, [1900] A.C. 135, at 143, cited.

APPEAL by the plaintiffs from the judgment of the Supreme Court of Nova Scotia en banc[1] dismissing their appeal from the judgment of Mellish J. (dismissing their action, following the trial of the action with a special jury), and dismissing their alternative application for a new trial. In the action the plaintiffs claimed from the defendant the sum of $37,269.25 and interest, upon a guarantee by the defendant of an account of one Dr. Rankine with the plaintiffs. The material facts of the case and the questions in issue are sufficiently stated in the judgment now reported. The appeal was dismissed with costs.

L. A. Forsyth K.C. and G. F. Osler for the appellants.

C. B. Smith K.C. for the respondent

The judgment of the court was delivered by

Crocket J.—The appellants brought this action to recover the sum of $37,269.25 alleged to be due them on a stock trading account which they were carrying in their Halifax stock brokerage office for one Dr. John Rankine, and which the respondent agreed in writing dated November 20, 1929, to guarantee.

The action was tried before Mr. Justice Mellish and a jury and dismissed on the ground that the appellants had agreed with the debtor without the consent of the respondent to extend the time for payment of the guaranteed account. This was the principal defence on which

[Page 496]

the respondent relied at the trial and in relation to which the learned judge left two questions to the jury, Nos. 3 and 4, as follows:—

3. Did plaintiffs through their manager agree with Dr. Rankine to extend the time for the payment of Dr. Rankine’s account?

4. If so, was it part of the consideration for said agreement that the plaintiffs should obtain the insurance which they did obtain from Dr. Rankine for plaintiffs’ benefit?

To both these questions the jury answered “yes.”

On appeal to the Supreme Court of Nova Scotia en banc the appellants contended that these findings were not warranted by the evidence. They also challenged the trial judgment on the ground that the learned trial judge had misdirected the jury and that he did not sufficiently instruct the jury with respect to the subject-matter of these two questions and the evidence concerning them. This appeal was dismissed, Graham J. dissenting on the ground that the plaintiffs’ case was not sufficiently presented to the jury by the learned trial judge. He agreed, however, that the jury’s findings upon both questions could not be set aside as against evidence.

The same grounds are taken on this appeal.

We agree with the appeal judges that the findings on the two vital questions, 3 and 4, cannot well be set aside as not being reasonably warranted by the evidence. That an oral agreement was entered into between Dr. Rankine and Mr. White, manager of the appellants’ Halifax branch, sometime during the fall of 1930, whereby the former promised to make regular payments of $400 a month for the carrying on of his account, is not disputed. The only substantial conflict between the two witnesses was as to whether Dr. Rankine agreed during this conversation or in a later conversation to procure and assign to the appellants life insurance to the amount of $20,000 or $24,000, and as to whether Dr. Rankine asked Mr. White if he kept on making these payments would he sell him out as soon as the appellants were clear or would they give him a chance in the event of the market coming back to get some of his own money back and the latter answered that he didn’t think there would be the slightest question about that, that they would give him a chance or words to that effect Mr. White testified when first examined that He had no recollection of any such statement but that he

[Page 497]

wouldn’t deny it was made. Later, when recalled in rebuttal, he did deny it, as he did that there was any mention of insurance in connection with the $400 payments. That Dr. Rankine did obtain and assign to the appellants on January 13, 1931, a policy of $20,000 and a week later another policy of $4,000 is admitted, as is also the fact that he made his first monthly payment of $400 on December 1, 1930, and continued to make regular monthly payments of $400 as agreed down to the time of the trial. Dr. Rankine’s evidence, in so far at least as it concerned the granting of an extension of time until his indebtedness was discharged, was corroborated by the following statement contained in a letter addressed under date of November 18, 1930, by Mr. White to the respondent at Belmont, Mass.:—

We have made an arrangement to help you in the matter of Dr. Rankine’s account, by having obtained an agreement from him whereby he undertakes to pay us a minimum of $400 per month, these payments to be continued until his indebtedness is discharged.

It is not shewn that the respondent ever received this letter but in any event it was never acknowledged.

In the light of this evidence it can hardly be said that there was no reasonable basis for the jury’s findings that the appellants through their manager agreed to extend the time for payment of Dr. Rankine’s account and that it was part of the consideration for such agreement that Dr. Rankine should provide the insurance policies which he admittedly assigned to the appellants a few weeks later.

As to misdirection, objection is taken to the learned trial judge in his summing up of the evidence bearing on questions 3 and 4 attributing to Dr. Rankine more definite statements than he had in fact made. One observation of His Lordship was particularly stressed as being calculated to leave the impression on the jury that Dr. Rankine had absolutely sworn in terms that in consideration of his promise to pay $400 a month and to provide the life insurance Mr. White had agreed to give him an extension of time. An examination of that portion of the charge in which this observation was made shews that His Lordship was referring to the letter which Mr. White had written to the respondent on November 18, containing the reference above quoted to the agreement he was reporting that he and Dr. Rankine had made, but reporting it—contrary

[Page 498]

to the evidence of either himself or Dr. Rankine—as being subject to the depositing of further securities to the credit of the guaranteed account to properly margin it, and in this connection proposing that the respondent put up the required additional collateral and protect himself by means of insurance on Dr. Rankine’s life. His Lordship immediately added to the statement complained of: “Now that is what I understand to be roughly what Dr. Rankine says. Mr. White wrote Mr. McCartney something different from that.” The whole passage was clearly intended as an exposition of the effect of the two conflicting versions of the oral agreement which had been entered into,—first Dr. Rankine’s and then Mr. White’s as reported in the letter referred to. For my part I cannot see that it was in any way inappropriate or inaccurate. Moreover, His Lordship had very clearly stated to the jury that they had heard the evidence and that he might make some remarks about the evidence, as to what the evidence was, but that, unless what he stated conformed to their good judgment as to what the evidence was, they were to take their own view of it, and that if they had any doubt as to the evidence they could have any part of it they desired read by the stenographer. As a matter of fact he did on his own suggestion during the course of his charge have Dr. Rankine’s cross-examination read by the stenographer, and he told the jury more than once that it was their sole duty to determine these questions of fact and that they were under no obligation to follow any views he might himself express of the evidence. Practically his last words to the jury were:

If I have expressed any view as to the evidence that does not commend itself to your judgment, take your own view; don’t take mine.

Probably the strongest statement excepted to as misdirection was the following:—

Then the policies come on afterwards and they are made out, as I understand it, payable to assigns of Johnston & Ward. They hold the policies. So the agreement that did go through was an agreement that was made with Dr. Rankine, and the agreement did not go through of which McCartney was to be a partner. I want you to get a proper view of it,—Did the plaintiffs through their manager agree with Dr. Rankine to extend the time for the payment of Dr. Rankine’s account? All I can say is, that they were to take $400 a month until it was liquidated and they were taking insurance on his life, so that they could get their money if he didn’t live.’ long enough to liquidate. It is pretty strong; evidence that they agreed to extend the time. I leave that question with you.

[Page 499]

It is objected that this was a definite direction that the agreement that did go through was an agreement that was made with Dr. Rankine and that the agreement did not go through of which McCartney was to be a partner. This is probably so, but can it properly be said to mean anything more than what the admitted facts established, viz.: that the appellants received and accepted the $400 regular monthly payments which Dr. Rankine testified he had promised to make, and did make right down to the time of the trial, and accepted as well insurance policies on his life, which Dr. Rankine testified he agreed to take out in response to Mr. White’s proposal, and still held as valid subsisting policies at the time of the trial? It seems to me that it was an eminently proper consideration to put to a jury, who were called upon to decide whether the true version of the oral agreement was the one which Mr. White recorded in his letter to McCartney or the one to which Dr. Rankine had deposed on the trial, and that it amounted to no more than calling the jury’s attention to the admitted facts and suggesting that the jury should determine which of the two conflicting versions best accorded with these indisputable facts.

After a careful examination of the relevant evidence and the judge’s charge I can discover nothing which can justifiably be characterized as a misquotation of the evidence in any material particular or any misdirection either as to law or fact.

As to non-direction the substantial objection is that the learned trial judge insufficiently presented the appellants’ case and that he failed to direct the jury that an agreement to extend time for payment was not binding unless there was consideration therefor or to explain what consideration meant. The use of the word consideration in question 4, it was argued, made this necessary.

For my part I should not have thought that the learned judge in framing question 4 meant anything more than to get the jury’s finding as to whether Dr. Rankine had promised as part of the bargain to provide the life insurance as well as to make the monthly $400 payments. It was the duty of the learned judge himself to decide the question of the validity and binding character of the promise as a question of law; not the jury’s. Manifestly no direction which His Lordship could have given as to

[Page 500]

the legal meaning of consideration could have made any difference to the jury’s view of the evidence of what was said between the parties. And, the jury having accepted Dr. Rankine’s statement that he promised to provide the life insurance as well as to make the monthly payments, there could, in my opinion, be no doubt that such a promise constituted a valid and binding consideration for an agreement on the part of the appellants to extend the time until “his (Rankine’s) indebtedness was discharged,” to use White’s own words in recording his understanding of the agreement or “arrangement,” as he described it in his letter to McCartney.

It was further contended that the learned trial judge should have submitted a question to the jury to ascertain whether the conversation regarding insurance took place at the time the arrangements for the $400 monthly payments were made.

Yet, notwithstanding the Nova Scotia Judicature Act expressly provides that the trial judge shall direct the jury to answer any question which counsel may require him to submit, counsel for the appellants on the trial made no request that he submit any other questions than those stated. Not only so, but he made no request for any direction upon the question of consideration, nor that His Lordship should call the jury’s attention to any portion of Mr. White’s or any other evidence bearing on questions 3 and 4 than that to which His Lordship had referred. Neither did he make any suggestion that His Lordship had misquoted any part of the testimony. Had there been any non-direction or insufficient direction, we think the appellants, having failed to make any objection at the proper time, are precluded in the circumstances of this case from raising the question on appeal. To quote the words of Lord Halsbury in Nevili v. Fine Art & General Ins. Co.[2]:—

Where you are complaining of non-direction of the judge, or that he did not leave a question to the jury, if you had an opportunity of asking him to do it and you abstained from asking for it, no court would ever have granted you a new trial.

See also Seat on v. Burnand[3].

We think the appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitor for the appellants: L. A. Lovett.

Solicitor for the respondent: C. B. Smith.