Charlebois v. Surveyer, (1897) 27 SCR 556

Supreme Court of Canada

Charlebois v Surveyer, (1897) 27 SCR 556

Date: 1897-06-07

ARSÈNE CHARLEBOIS (PLAINTIFF)

Appellant;

And

LOUIS JOSEPH ARTHUR SUR VEYER (DEFENDANT)

Respondent.

1897: May 12; 1897: May 13; 1897: June 7

PRESENT:—Taschereau, Gwynne, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

Malicious prosecution—Probable cause.

S., being a holder of a promissory note indorsed to him by the payees, sued to recover the amount, but his action was dismissed upon evidence that it had never been signed by the person whose name appeared as maker, nor with his knowledge or consent, but had been signed by his son without his authority. The son's evidence on the trial of the suit was to the effect that he never int ended to sign the note, and if he had actually signed it with his father's name, it was because he believed that it was merely a receipt for goods delivered by express. Immediately after the dismissal of the suit, S. wrote to the payees asking them if they would give him any information which would help him in laying a criminal charge in order to force payment of the note and costs. He also applied to the express company's agent, by whom the goods were delivered and the note procured and was informed that there was a receipt for the goods in the delivery-book but that the signature was denied and could not be proved. However, without further inquiry, and notwithstanding the warning of a mutual friend against taking criminal proceedings, S. laid an infor mation against the son for forgery. The Police Magistrate at Montreal, upon the investigation of the charge, declared it to be unfounded and discharged the prisoner.

Held, reversing the judgments of both courts below, that, under the circumstances, the prosecution was without reasonable or probable cause, and the plaintiff was entitled to substantial damages.

APPEAL from the judgment of the Court of Queen's Bench for Lower Canada (appeal side), affirming the

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judgment of the Superior Court, District of Montreal, which dismissed the plaintiff's action with costs.

A statement of the case and matters at issue will be found in the judgment of the court pronounced by His Lordship Mr. Justice Gwynne.

Saint-Pierre Q.C. for the appellant.

Geoffrion Q.C. and Beaudin Q.C. for the respondent.

The judgment of the court was delivered by:

GWYNNE J.^__This is an action for malicious prosecution on a criminal charge.

The plaintiff in his declaration alleges that on the 22nd of October, 1892, the defendant without any reasonable or probable cause but from mere malice and after having been previously warned of the illegality of his procedure and of the risk he would run, laid a complaint upon oath before a Justice of the Peace for the Province of Quebec in which he accused the plaintiff of having feloniously and with intent to defraud, forged the name of his father Leon Charlebois upon a certain promissory note. The complaint made by the defendant before the justice was then set forth whereby it appeared that the defendant had deposed on oath that he had become the bearer of a promissory note for the sum of sixty dollars, dated Newmarket, 25th March, 1892, payable at sixty days from date, to the order of the Newmarket Washing Machine Company, at the Bank of Ontario, at Newmarket, signed " Léon Charlebois "—that he had since ascertained that the said note had been feloniously forged—that the signature " Léon Charlebois " should be that of Mr Leon Charlebois, merchant of Pointe Clair in the District of Montreal, but that the said Leon Charle-bois had denied upon oath in a civil court that he had ever signed the said note—that Arsène Charlebois, his

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son, had admitted in the same cause indirectly having set the signature at the foot of the note and that the father Leon Charlebois, had also sworn in court that he had never authorized any person to sign the said note, " in consequence of which" the complaint pro ceeded the defendant accused the said Arsène Charle bois with having feloniously forged the said note with intent to defraud. This complaint had been dismissed by the Police Magistrate, Judge Desnoyers, as un founded To this declaration the defendant pleaded among other things that he was the hearer for value of a promissory note bearing the signature of Leon Charle bois, the plaintiff's father; that having sued the said Leon Charlebois in the Circuit Court upon the note he pleaded to the said action, and made oath that the signature placed at the foot of the note was not his and that he had never authorized any one to sign it for him; that upon trial of the cause the defendant's action was dismissed with costs because it was then and there proved that the signature at the foot of the note had never been set thereto by the said Leon Charlebois, but by his son the plaintiff in the present action, without the authority, consent or knowledge of the said Charlebois; that in these cir cumstances and considering the position of the plaintiff, his information and business experience the defendant was justified in believing and had good reason to believe that the plaintiff knew perfectly well what he was doing when he signed the name of his father.

The Superior Court and the Court of Appeal dis missed the plaintiff's action—and hence the present appeal.

It is noteworthy here that the defendant in his com plaint before the magistrate alleged that since the trial of the action in the Circuit Court he had ascertained that the note had been feloniously forged. The

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dismissal of the complaint shows that he failed in establishing that allegation. In the present action the defendant justifies his having made the charge upon much the same grounds. It becomes therefore important to consider whether the matter alleged by the defendant in his deposition upon the criminal charge and in his plea fairly states the whole of the matters brought to his notice before he made the criminal charge and whether in view of the circumstances which were so brought to his knowledge, it can be said that he had reasonable and probable cause for making the accusation against this young man who, according to the evidence, appears to bear the very best character and belongs to a family of the highest reputation of their class in the neighbourhood where they live.

Immediately after the trial of the action on the note and upon the 1st of October, 1892, the defendant wrote to Mr. Isaac Shupe, Newmarket, the agent of the company, and from whom the defendant had received the note as follows:

Dear Sir,—I have just got through with my lawsuit with Charle-bois, amount $60.00 which I lost. The father came and swore that he never authorized his son to sign notes or cheques and the son swore that he never intended and had no authority to sign notes, and that he signed this one just as a receipt to the express, believing that it was the express receipt. Can you give me any information that would lead me to make of this a criminal case for besides the loss of $60.00 I have a bill of costs of $40.00. I would like to get repaid if I can from father or son I hone to hear from you soon.

We have not the whole of the evidence which was given in the action in the Circuit Court How ever in the present action the defendant has called and examined on his own behalf the plaintiff in this action and on his examination the document purporting to constitute his father agent of the New market Washing Machine Co., was put into his hands

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the same as was spoken of in the civil action and he was required to read it, which he did. The document is headed:

NEWMARKET WASHING MACHINE CO.

NEWMARKET, ONT.,

POINTE-CLAIRE, 12th March, 1892.

This is to certify that we have this day appointed Léon Charlebois our agent to sell machines in the parish of La Pointe-Claire and sur rounding country.

We agree to furnish Leon Charlebois with all the machines he may require for thirty dollars a dozen, payable in sixty days, or twenty-four dollars cash on delivery the said Charlebois to have and to hold the agency as long as he will push the sales and continue to purchase. Said Leon Charlebois agrees to keep the retail prices up to four We further agree to take back at manufacturer's prices and will pay cash on delivery, at any time after the expiration of sixty days from date hereof any machines that said Leon Charlebois cannot sell.

Upon the back of the document were printed the words following:—

NEWMARKET WASHING MACHINE CO.

NEWMARKET, ONT.,March 12th, 1892.

Please have manufactured and sent me by express to Pointe Claire two dozen of your washing machines for which I agree to pay thirty dollars per dozen, in sixty days, by note, or twenty-four dollars per dozen, cash on delivery.

LEON CHARLEBOIS,

Per ARSENE CHARLEBOIS.

The witness having been asked whether he had signed his father's name to this document, answered that he had; that he had been requested to do so by Mr Shupe, but that he had never read what was on the back; that he had read what was on the face and Shupe had explained it to him to mean that at the expiration of 60 days such of the machines as were not sold, if not returned, should be paid for, and that such as should have been sold should also be paid for, and he stated that his uncle Duchesneau was present at the time but witness swore that he had not observed

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nor was his notice drawn to the words on the back of the document, nor was there any mention made of a note; that the only conditions of the bargain were those on the face of the document which Shupe explained as above, and that he relied wholly upon what Shupe explained to be the conditions which the document imposed. The witness also swore that when he went to the station on the 25th March for the machines, Parent, the agent, never said a word about there being $48 to be paid, or a promissory note at 60 days to be given. That it was about six o'clock in the evening when witness went to the station, that Parent said, "sign this," and that witness signed without reading what he signed; that then Parent said there was a dollar and something over to pay for freight, and witness said that he did not recollect whether he had paid it or not, but he repeated and swore positively that not a word was said either about a promissory note or $48, and the witness added that he had been examined as a witness in the action in the Circuit Court, and had given this same testimony in the presence of the defendant.

The defendant in his examination before the Police Magistrete Mr. Desnoyers, on the criminal charge against the plaintiff, said that the plaintiff in his examination in the action in the Circuit Court ad mitted that he had signed his father's name on the note produced in the action and that he had done so under the belief that he was signing a receipt for the express, and that he had signed no other receipt for the machines. He admitted also that Leon Chailebois had said in his evidence in the same action that he had returned 22 of the machines and that he was ready to pay for the other two, but the defendant never informed Mr. Shupe of this fact. He further said that he knew that Shupe's forms of contract permitted

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the agent to return machines at the manufacturer's price and that he had reason to believe that 22 of the machines had been returned but that he had not been reimbursed by the Newmarket Washing Machine Company the manufacturer's price of the returned machines. He admitted also that Mr. St. Pierre, the advocate before the commencement of the criminal proceedings, had requested him to suspend his proceedings until Mr. St. Pierre should have an opportunity to see Leon Charlebois to obtain the necessary information in the matter and that Mr. St. Pierre told the defendant that if after obtaining such information he should be of opinion that either the plaintiff or his father were in any manner responsible to the defend. ant that he would advise them to pay the note, and further that on two different occasions Mr. St. Pierre had called at defendant's place of business and had told the defendant's agents that he had seen the Charlebois, both the father and the son, and after hearing their explanations he advised defendant as his friend not to take the criminal proceeding. He admitted also that he did not believe that the plaintiff had been benefited in any manner by writing the name of his father on the note in question, but he added that if the machines had been sold it might have been different, and he said that he did not act upon Mr. St. Pierre's advice because he considered it impossible for a man of business to sign a receipt for a promissory note.

On his examination in the present action he admit ted that it was at his instance that Mr. Bryce the superintendent wrote a letter which was produced to Mr. Parent, and that Mr. Bryce submitted to defendant Parents reply immediately upon receipt of which he made the criminal charge against the plaintiff.

These letters are as follows:—

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CANADIAN EXPRESS COMPANY,

SUPERINTENDENT'S OFFICE

MONTREAL, October 7th, 1892.

AGENT—POINTE CLAIRE, QUE.

Dear Sir,—Re shipment as per all way-bill. It is claimed by the party receiving the consignment that he signed the note for $60.00 instead of paying the C. O. D. and in signing the note he did so merely as receiving the goods and has no other receipt for the goods. Do you hold receipt in your book for the consignment, whom by, and on what date delivered? Your prompt reply will oblige,

Yours Truly,

J. BRYCE, Supt.

Pointe Claire, October 11th, 1892.

MR. BRYCE—DEAR SIR,—The party receiving the goods, I have his signature in delivery book but he denies having signed. I cannot swear it is his own signature but he signed the note all right and I gave him to understand what it was for

Yours truly,

R. PARENT.

Now, at the time of the defendant writing to Mr. Shupe the letter of the 1st October, 1892, he had the plaintiff's statement upon oath of the circumstances under which Shupe procured him to sign the docu ment appointing his father agent of the Washing Machine Manufacturing Company which, upon its face has not a word about a promissory note being to be given and further that the plaintiff's attention had not been drawn to the nature and purport of the in dorsement in which the words " by note" are intro duced thus changing the purport and effect of what appears on the face of the document which had been explained to him by Shupe in the manner described by the plaintiff No evidence whatever had been given to shake this sworn testimony of the plaintiff and uncontradicted it seems to point very strongly to the fact of a deception of no uncommon character having been practised upon this youth by Mr. Shupe and calculated to deceive and which has succeeded in deceiving and defrauding more experienced persons

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than this youth of 20 years of age as the experience of courss of justice has abundantly shown. No promis sory note having been mentioned in the transaction, and the plaintiff's attention not having been drawn as he swore it had not to the contents of the indorsement which Shupe procured him to sign, it was but natural that he should not have expected a promissory note to be presented to him for his signature when he went for the machines at six o'clock on the evening of the 25th March, and only one paper having been pre sented to him for his signature when he received the machines, it is by no means incredible that the plain tiff should have signed it without reading it in the belief that it was a receipt for the goods that were being delivered to him that he was asked to sign Yet it is upon the suggested incredibility of this state ment of the plaintiff on his oath that the defendant mainly rests his charge against the plaintiff of his having feloniously forged his father's name to the note although no possible benefit that he could obtain or fraud that he could thereby have committed has been or apparently can be suggested. The defendant also in the civil action heard Leon Charlebois swear that he had returned twenty-two of the machines as unsaleable and in accordance with the terms of the document appointing him agent of the company, and the defendant has admitted that he knew Shupe's forms of contracts, and that they allow agents to return unsold machines at the manufacturer's prices and that he had reason to believe that twentv two of the machines received by Oharlebois had been returned It is apparent then from the defendant's knowledge of the above facts that he had not and from his letter of the 1st of October, 1892 that he knew he had not any reasonable grounds whereon to make a charge of forgery against the plaintiff, and that his object in

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writing the letter was to try to obtain any evidence whereon to found such a charge in the hope and expectation of thereby compelling Leon Charlebois, the father, to pay what the defendant had lost by his civil action having failed instead of suing the company who were liable to him as the indorsers. Now the only further evidence upon which the defendant rested his charge of felonious forgery against the plaintiff was Parent's answer to the latter written to him by Mr. Bryce at the defend ant's suggestion, immediately after seeing which the defendant admits that he laid the charge in which he swore that since the action he had ascertained that the promissory note upon which the action was founded had been feloniously forged. From the above facts it plainly appears, I think, that the defendant was willing to catch at any straw to satisfy his conscience and to enable him to force the plaintiff or his father rather to reimburse to him his loss, when he accepted this letter of Parent as sufficient to displace all the sworn testimony and to support such a grave charge as felonious forgery which the contents of Parent's letter, even if uncontradicted were wholly insufficient to support. I must say that the making of such a charge under the circumstances appearing in evidence as above detailed and in the face of the warning given by Mr. St. Pierre, an intimate acquaintance of the defendant and the plaintiff's father, was a wrongful, wanton, reckless and utterly unfounded proceeding originating in what is plainly shown to be actual malice.

Upon the charge before the magistrate the defendant appears to have called Parent to substantiate the statement in his letter. Comparing his evidence so given in chief with what is in his letter no one could suppose, although established by himself in cross-

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examination that the receipt for the machines in the book of the express company which is in the name of " L. Charlebois " and over the " L " the letter "A" is inserted erasing the " L"is in the handwriting of Parent himself and whom it would be as reasonable to accuse of forgery as to charge the plaintiff with forgery, even if he had knowingly set his father's name to the note. The witness stated that it was in the evening, about 6 o'clock, when he, Parent, was very much engaged that plaintiff signed the paper, the entry having been presented to him upon receipt of which the machines were delivered to him; had the defendant been in possession of Parent's affidavit instead of his letter only there was nothing in it which in the face of all the other matters in the defendant's knowledge could have justified him in making the charge.

I think that the judgment of the court below cannot be sustained, and that the plaintiff is entitled to substantial damages for a very grave charge maliciously preferred against him without any reasonable or probable cause whatever. The appeal must therefore be allowed with costs and judgment be Ordered to be entered for the plaintiff in the action in the court below for five hundred dollars damages and costs in all the courts of the class of action as brought.

Appeal allowed with costs.

Solicitors for the appellant: Saint-Pierre Pellissier & Wilson.

Solicitors for the respondent: Beaudin, Cardinal Loranger & St. Germain.