Supreme Court of Canada
Belcher v. McDonald , (1903) 33 S.C.R. 321
Date: 1903-05-05
Frank J. Belcher and Others, Executors of Alexander Calder, Deceased, (Plaintiffs) Appellants;
and
Alexander Mcdonald (Defendant) Respondent.
1903: March 23, 24; 1903: May 05.
Present: Sir Elzear Taschereau C.J. and Sedgewick, Davies, Mills and Armour JJ.
ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA, SITTING IN APPEAL FROM THE TERRITORIAL COURT OF YUKON TERRITORY.
Appeal—Concurrent fundings of courts below—Reversal on questions of fact—Improper rulings—Reversal on a matter of procedure.
Where the findings of the trial courts were manifestly erroneous and the trial appeared to have been irregularly conducted, the Supreme Court of Canada reversed the concurrent findings of the courts below and also reversed the concurrent rulings of those courts refusing leave to amend the statement of claim by alleging an account stated.
APPEAL from the judgment of the Supreme Court of British Columbia affirming the judgment of the Territorial Court of Yukon Territory.
The material questions at issue on this appeal sufficiently appear from the judgment reported.
Sir Charles Hibbert Tupper K.C. for the appellants.
Davis K.C. for the respondent.
The judgment of the court was delivered by :
ARMOUR J.—This appeal should in my opinion be allowed. It is impossible in the evidence before us to uphold the judgment of the trial judge affirmed by the Supreme Court of British Columbia, being, as it is, manifestly against the evidence.
[Page 322]
The admissions made by the defendant to the plaintiffs of his indebtedness to Calder in the $50,000 balance of the $100,000 note and in one-half of the clean-up of 1899, amounting to $26,222, none of which admissions did he go into the witness-box and deny ; his assignment to the plaintiffs of Calder's one undivided half of the claim, 27 Eldorado ; his assignment of the dumps to the plaintiffs ; and his offering security to the plaintiffs for the amount of his indebtedness to Calder in respect of the $50,000 and the $26,222 ; were wholly inconsistent with the more than doubtful story which he afterwards set up that the $100,000 note was given by him to Calder "in lieu of property and whatever I owed him at the time."
The erroneous rulings of the trial judge suffice also to set aside his judgment among which were his refusing to amend allowing the plaintiffs to allege an account stated, his refusing to allow the referee to consider the $50,000 and refusing to allow evidence to be given of the deposits made by the defendant in 1898 in banks and elsewhere.
The appeal should therefore be allowed and a new trial had, and the defendant should pay the costs of this court and of the court appealed from and the costs of the last trial, with leave to the parties to amend their pleadings as they may be advised.
Appeal allowed with costs.
Solicitor for the appellants: C. M. Woodworth.
Solicitor for the respondent: Auguste Noel.
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