Supreme Court of Canada
Hunt v. Taplin, (1895) 24 SCR 36
Date: 1895-01-15
MANSON E. HUNT et at. es qualité, AND THE CANADA CONGREGATIONAL MISSIONARY SOCIETY (DEFENDANTS AND MIS ENCAUSE)
Appellants;
And
JOHNSON TAPLIN (Plaintiff)
Respondent.
1894: Feb 27; 1894: Mar 1; 1894: Oct 4: 1895: Jan 15
PRESENT:—Fournier, Taschereau, Gwynne, Sedgewick and King JJ.
Sir Henry Strong C. J., and Taschereau, Gwynne, Sedgewick and King JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Appeal—Amount in controversy—Pecuniary interest—R. S. G. c. 135, s. 29 Contract of sale—Contre lettre—Principal and agent—Construction of contract
The plaintiff who had acted as agent for the late J. B. S., brought an action for $1,471.07 for a balance of account as negotiorum gestor of J.B.S., against the defendants, executors of J.B.S. The defendants in addition to a general denial, pleaded compensation for $3,416 and interest. The plaintiff replied that this sum was paid by a dation en paiement of certain immovables. The defendants answered that the transaction was not a giving in payment but a giving of a security. The Court of Queen's Bench reversing the judgment of the Superior Court held that the defendants had been paid by the dation en paiement of the immovables, and that the defendants owed a balance of $1,154 to the plaintiff.
Held that the pecuniary interest of the defendants affected by the judgment appealed from was more than $2000 over and above the plaintiff's claim and therefore the case was appealable under R. S. C. c. 135, s. 29.
The sale of property in this case was controlled by a writing in the nature of a contre lettre, by which it was agreed as follows: "the
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vander in consideration of the sum of $2,940 makes and executes this day a clear and valid deed in favour of the purchaser of certain property (therein described), and the purchaser for the term of three years is to let the vendor have control of the said deeded property, to manage as well, safely and properly as he would if the said property was his own, and bargain and sell the said property for the best price that can be had for the same, and pay the rent, interest and purchase money when sold, and all the avails of the said property to the purchaser to the amount of $2,940, and interest at the rate of eight per cent per annum from the date of three presents, and then the said purchaser shall re-deed to the vendor any part of the said property that may remain unsold after receiving the aforesaid amount and interest."
The vendor was at the time indebted to the purchaser in the sum of $2,941. The two documents were registered. The vendor had other properties and gave the purchaser a power of attorney to convey all his real estate in the same locality. The term of three years mentioned in the contre lettre was continued by mutual consent. The vendor subsequently paid amounts on account of his general indebtedness to the purchaser. It was only after the purchaser's death that the vendor claimed from the heirs of the purchaser the balance above mentioned, of $1400 as owing to him for the management of his properties.
Held, reversing the judgment of the Court of Queen's Bench, and restoring the judgment of the Superior Court, that the proper construction of the contract was to be gathered from both documents and dealings of the parties, and that the property having been deeded merely as security it was not an absolute sale and that plaintiff was not M. S.'s agent in respect of this property.
Held also, that the only action plaintiff had was the action mandata contraria with a tender of his reddition de compte.
APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side) reversing the judgment of the Superior Court for the district of St. Francis.
The action was brought by the respondent against the appellants executors of and residuary legatee under the last will of J.B Shurtleff to pay him the sum of $1,471.77 balance of amount due him as agent or mandatory of the said J B Shurtleff A statement
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of the facts and pleadings appears in the judgment of Mr. Justice Taschereau hereinafter given.
On the 27th February 1894, a motion was made by Butler Q.C. to quash the appeal for want of jurisdiction on the ground that the amount in controversy was under $2,000 and Mr. Buchan was heard for the appellants.
On the 1st May the following judgment was delivered on the motion:
TASCHEREAU J. This case comes up on a motion by the respondent to quash the appeal. The plaintiff's action was for $1470 for a balance of account as mandatary or negotiorum gestor of the defendant. The plea amounts to, besides the general issue, a plea of compensation for $3,416, with interest at 8 per cent from October, 1888, on $2,941, to which the plaintiff Taplin, replied that the $3,416 were paid by a dation en paiement called a sale of certain immovables The defendant Hunt, answered that these immovables were not given to him by the plaintiff en paiement, but merely as a pledge. The Court of Queen's Bench dismissed this contention of the defendant and his "olea of compensation, holding that he had been paid by the dation en paiement of the immovables in question and that he owed plaintiff a balance of $1,154 accrued since as his agent. The defendant now appeals. I think it clear that we have jurisdiction. The amount in controversy is clearly over $2,000. The defendant claims more than $2,000 over and above the plaintiffs claim, assuming that he owes plaintiff all that is claimed by the action. Reus excipiendo fit actor; he became plaintiff by his plea for an amount exceeding $2,000. It is true that he did not become plaintiff incident for the balance of his account over the plaintiff's but the amount in controversy, nevertheless is for the whole of his claim.
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The whole of it stands dismissed by the judgment appealed from. As long as that judgment stands he has no action against the plaintiff for the balance of his claim. His pecuniary interest in this appeal amounts, therefore to a sum exceeding $2,000. The motion to quash is dismissed with costs. I refer to Macfarlane v Leclaire (); Buntin v. Hibbird (); Gould v Sweet ();. Gauffre v. Philipee ().
On the merits Geoffrion Q.C and Buchan for the appellants, contended:
That the deed of sale from respondent to J. B. Shurtleff of the four properties in question, and the contre-lettre, which were passed at the same time, must be interpreted as one contract the effect of which was that the properties in question were merely transferred by Taplin to said Shurtleff as security for the debt of $2,941 due by him, and that the only interest which the said Shurtleff had in the said properties was the said sum of $2,941.
That the right of redemption stipulated by the contre-lettre of 23rd December 1880, accepted by Taplin, had been extended by Shurtleff beyond the three years, and had been acted upon by both parties thereafter up to the time of Shurtleff's death and treated as a continued obligation, the last payment on account of Taplin's original indebtedness, and in the exercise of the right of redemption, having been made by Taplin and accepted by Shurtleff, and credited on that account only a few weeks before the latter's death. That the résumé of the evidence as to the credits in Shurtleff's book clearly establishes this "point and in corroboration if any is required are the other facts and circumstances disclosed by the record.
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Bearing on the question of the extension of the time for redemption by Shurtleff, the acceptance of it by Taplin, and the consequent valid and binding contract the following authorities were cited:—
Parsons on Contracts (); Dignard v. Robitaille (); Deniers v. Lynch (); Dorion v. St. Germain () Laurent ().
H. B. Brown Q.C., for the respondent.
Was the real agreement between the parties, as contended for by the appellant, a sale with right of redemption, or a contract or pledge?
If Mr. Shurtleff was taking, or thought he was taking, the property in pledge he would not have surrendered the titles of his claim. The surrender of the original titles of obligation is a legal presumption of release or discharge of indebtedness. (C. C. 1181) the presumption may be rebutted but no attempt has been made to rebut it. It is not even pretended that these notes were surrendered through any error, nor is the legal presumption of payment explained away.
No renewals of the notes were ever given no new acknowledgment of indebtedness was ever made and the appellants do not produce any evidence of the pre-tended claim of $3,416.77, which they offer in compensation.
The original promissory notes, had they remained in the possession of Mr. Shurtleff would have been discharged by limitation of time years before his death, and yet plaintiff never was called upon to give any renewals or any new acknowledgment.
It is quite manifest that these notes were discharged and paid by the sale and were intended to be so discharged by both parties.
Where, then, is the evidence of any indebtedness for which the real estate could be held in pledge; and if
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there is no principal debt or obligation there can be no collateral security.
Again, if the two deeds really embody a contract of pledge the ownership must have remained in plaintiff.
But the one deed is an absolute deed of sale and there is nothing in the other deed to show that the parties intended it in any other sense.
It is claimed that this contract is in reality, not what the parties to it have called it and what on its face it appears to be, but that it is rather a giving in payment (C. C. 1592), as the vendor (plaintiff) was owing Shurtleff at the time the sum of $2,941, the amount of promissory notes held by Shurtleff against him.
The only distinction the code makes between a giving in payment and a sale is that the dation en paiement is perfected only by actual delivery. Delivery, however, is not necessary to pass the property to the creditor (C. C. 1025 1472) but the debt is not extinguished until the actual delivery of the thing given in payment.
Drouin v Provencher () Dignard v. Robitaille ().
The question whether this contract is to be regarded as a sale or a giving in payment, is immaterial, as it was followed by delivery, that is to say, by such delivery as can be made of real estate (C. C. 1492, 1493). See also the remarks of the commissioners who prepared the code on article 1493 (article 16 of the projet of the code). Cod. Reports ().
It is true that plaintiff continued to manage these properties, as he did other properties of Shurtleff, under power of attorney, collected the rents, paid the taxes and negotiated the sale, as an ordinary mandatary
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would do but possession was in the mandator. (C. C. 2192).
As to the effect of the contre-lettre the learned counsel cited and commented on Laurent ().
In support of his action the learned counsel also cited Civil Code (); Joseph v. Phillips
The judgment of the court was delivered by
TASCHEREAU J.__I would allow this appeal and re store the judgment of the Superior Court. The plain tiff, now respondent, claims from the defendants, as legal representatives of one Shurtleff, deceased, a sum of $1,471, which he alleges was due to him by the said Shurtleff for services rendered as his agent and man datary in connection with certain properties in the town of Coaticook, and disbursements by him made in the administration of the said properties. The plea denies that the plaintiff ever acted as Shurtleff's agent and sets forth that on the 23rd December, 1880, he, the plaintiff being indebted to Shurtleff in the sum of $2, 941 transferred to him under colour of a sale certain real estate in the town of Coaticook; that the said real estate was transferred to Shurtleff in accordance with well established usage, merely as security for the aforesaid amount of $2,941 due by plaintiff to him, and that it was understood and agreed that the property should be managed and administered by plaintiff as his own that on the same date as the execution of the said deed a contre-lettre was executed between the same parties by which it was agreed that the plaintiff should have this right at any time within three years to redeem the real estate on repayment to Shurtleff of the said sum of $2,941 with interest at eight per cent and that this contre-lettre had been registered by the
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plaintiff who had retained the original in his possession; that the said plaintiff from the date thereof accepted the said right of redemption, and availed himself thereof, and the same became between the said parties equivalent to and in fact was a contract in the nature of a promise of sale from Shurtleff accepted by the plaintiff, by which Shurtleff agreed to sell the property to the plaintiff, and the plaintiff agreed to buy the same for the said price of twenty-nine hundred and forty-one dollars with interest thereon at the rate of eight per centum per annum; that this promise and agreement had been accepted by plaintiff, who had thus promised and agreed to repay to Shurtleff the said sum of twenty-nine hundred and forty-one dollars with interest at the rate of eight per cent per annum; and from the day of the date of the executions of said deed and said contre-lettre the plaintiff had always been and remained in possession of the said parcels of real estate, and had controlled and possessed the same under said promise of sale as the owner and proprietor thereof, and had kept the same in repair, paid the taxes thereon and kept the same insured for his own benefit, and had always managed, administered and disposed of the same as his own property, for his own benefit, with the obligation on his part to apply the rents and revenues and proceeds thereof on account of the amount due by him as aforesaid to Shurtleff; that the term for redemption mentioned in the contre lettre was stipulated for the benefit of Shurtleff who had on his part the right to waive and extend the same as he might see fit, and that he did waive and extend the same and the said contract was existing between the parties at the date of Shurtleff's death; that all the moneys paid laid out and expended by plaintiff in connection with said property and which he sought by his action to recover from the estate of Shurtleff were paid and
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expended for his own benefit and that during the lifetime of Shurtleff plaintiff never pretended to any claim whatsoever against Shurtleff, but on the contrary at all times recognized his relation to Shurtleff as that of a debtor that during the lifetime of the said Shurtleff the said plaintiff never made any claim for any pretended services and was in fraud and bad faith in seeking so to do by his action; that all the real estate described in said deed is on the valuation roll in the name of the plaintiff, and the plaintiff continued to pay the taxes thereon and to act as owner, and never in any way repudiated his ownership until after the death of Shurtleff; that on the 3rd September, 1884, after the expiry of the term of three years allowed for the redemption on the property, the plaintiff redeemed lot number 778, paying the sum of $400.00; that plaintiff at the death of Shurtleff on October 31st 1888, was indebted to him in the sum of $3416.07, being a balance of the original debt of $2,941.00 and interest at eight per cent; and the defendants declared their willingness tore transfer the remaining properties to plaintiff on payment of the said balance.
The replication is equivalent to a general one.
After a long and rather complicated enquête, consisting of numerous documents a great part of which might well have been dispensed with, and a comparatively large amount of verbal evidence, the Superior Court dismissed the plaintiff's action on the ground that he never acted as agent of Shurtleff in the management of those properties, and that the said properties had in fact been administered by him as procurator in rem suam, vested with a power coupled with an interest. That judgment was reversed by the Court of Queen's Bench and judgment given for the plaintiff for a part of his claim, $1,154.
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The following are the facts as found by the Superior Court: .
On the 23rd. December, 1880, the plaintiff being indebted unto the said Shurtleff in a sum of $2,941, amount of plaintiff's different promissory notes, conveyed to him under the colour of a sale, certain properties the consideration in the deed being expressed to be $2941 "paid at and before the execution of these presents, the receipt whereof is hereby acknowledged by the said John Taplin." The promissory notes were thereupon surrendered by Shurtleff to plaintiff. At the same time a writing, in the nature of a contre lettre, though not strictly speaking one, was executed between the same parties, as follows: —
This agreement made and entered into by and between Johnson Taplin, of the first part, and Jonathan B. Shurtleff, of the second part, under the penalty of damages by the said party of the first part, and also by the said party of the second part, said agreement is as follows : that is to say, the said Johnson Taplin for and in consideration of the sum of twenty-nine hundred and forty-one dollars, makes and executes this day a clear and valid deed in favour of the said Jonathan B. Shurtleff of property situate, lying and being in the said village of Coaticook, being described in the same deed from the said Johnson Taplin to the said Jonathan B. Shurtleff. And also the said Jonathan B. Shurtleff, for the term of three years, is to let the said Johnson Taplin have control of the said deeded property, to manage as well, safely and properly, as he would if the said property was his own, and bargain and sell the said property for the best price that can be had for the same, and pay the rents, interest and purchase money when sold, and all the avails of said property to the said Jonathan B. Shurtleff to the amount of twenty-nine hundred and forty-one dollars, and interest at the rate of eight per cent per annum from the date of these presents then the said Jonathan B. Shurtleff shall re-deed to the said Johnson Taplin any part of the said property that may remain unsold after receiving the aforesaid. amount and. interest.
These two documents were registered by plaintiff on the day following their execution.
A power of attorney to convey all his real estate in Coaticook was afterwards given, in 1881, by Shurtleff
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to the plaintiff, to further facilitate, I take it as evident, the execution of the powers given to the plaintiff in the contre lettre. The Superior Court also found the following pacts : The plaintiff had charge for Shurtleff of certain other properties in Coaticook, the Mead houses and Vaughan houses, and he looked after certain investments, collected interest for Shurtleff, receiving and paying out moneys till Shurtleff s death, October 31st, 1888. He rendered no account to Mr. Shurtleff during his life. Two of these properties, 778, the Putney house, and 906, the Hackett house, remained on the valuation roll in plaintiff's name, as did 1587, Avling house, till sold, but 766, the Baldwin property, sold to the Pioneer Beet Root Sugar Co., was sold at sheriff's sale on said company, and Shurtleff was obliged to buy in at the sheriff's sale, which he did, and the deed was given to him by the sheriff. Plaintiff had the management of all these properties under his contre lettre. presumably collected rents, but with the exception of one charge, $27, April 6th, 1882 "rents collected accounted for none till after 1881," i.e., he kept in his own hands any rents which he may have collected, but during that period he paid taxes and insurance on all the properties, as well as on the properties the Mead and Vaughan houses in which he had no interest personally, but in the management of which he acted for Shurtleff.
In 1884, Sept. 3rd, he obtained a deed of the Putney house, 778, from Shurtleff for $400 and in 1886, Jan. 15th, of 35 ft. of the Baldwin property for $35. Both these deeds are sous seing privé, and contain the ordinary conditions of sale,
It is to be observed that in 1881 he obtained a power of attorney from Shurtleff to give a deed to the Pioneer Beet Root Sugar Co. In 1886, Sept. 8th, he wrote to Shurtleff, " I send you by Mr. Gustin for Wm. Brigham
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$472 which you will endorse on their notes and give me credit for $38 ($37 instead of $38). I meant to send more but have got disappointed, but shall have it soon, it is hard to get money here. I meant to send you $100."
On Oct. 18, 1887, " I have got about $100 (one hundred dollars) to send you on our deal I sold a house and have a long pay day $5 per month. Property is looking up a little better here "
March 12, 1888, " I am going to pay you some money. I have got $100 for you now on my own account " and on March 24 1888 " I expect Levi Gustin over here every day, when he comes I will send you some money on my own account."
All these letters were written at a time when he now claims the late Shurtleff was largely indebted to him for the causes for which he has brought the present action.
Is it conceivable that the plaintiff would then have written those letters if Shurtleff had been his debtor as he now would claim him to have been? And how can he now contend that the $100 he sent to Shurtleff in 1887, were moneys collected as his agent when, in his letter sending it he says, it is $100 on our deal ().
The two deeds of December 1880, having been passed at the same time, between the same parties in relation to the same property in consideration of the same specific sum, must be construed together. "The contract (it is said in Parsons on Contracts, 2nd Vol. p 503) may be contained in several instruments, which, if made at the same time between the same parties and in relation to the same subject will be held to constitute but one contract." Now, that rule of the English law is also a rule of the French law. As laid down by the Privy Council, in McConnel v. Murphy () the rule on the subject is the same, under both systems.
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It is impossible not to consider the contre-lettre here as part of the contract between the parties. To give effect to the deed of sale without reference to the contre-lettre, would be setting at naught the intention of the parties. They must have intended that the sale should be controlled by the contre-lettre.
The very fact that the plaintiff himself registered the contre-lettre is an additional proof, were any necessary, that he did not intend to convey the property to Shurtleff absolutely and without reserve.
If a boom had struck Coaticook during these three years, and had largely increased the value of this property, the plaintiff would have had the right to force Shurtleff, upon payment of the $2,941; to a retrocession thereof; or if he had been enabled to sell the property, say for $10,000, he would have satisfied all of Shurtleff's rights by paying him $2,941, the difference going; into his pocket. At the end of the three years both consented not to exercise their rights, Shurtleff, the right to force the plaintiff to deliver him up the possession of the property, and the plaintiff the right to get then a retrocession thereof. And the relation between the parties continued up to Shurtleff's death to be on the same footing. There was, by mutual consent, no interversion, no change whatever in their relative positions as to the property. Shurtleff continued to have the title thereto; the plaintiff continued. to have the possession thereof, and manage it as his own with power to sell it, but the price to go to Shurtleff up to the amount sufficient to satisfy his claim, Shurtleff being obliged to re-deed to plaintiff any of the property remaining unsold, upon he, Shurtleff, being repaid in full the $2,941, and interest accrued I fail to see how, under such a state of things, the plaintiff can seriously contend that, in his management of this property, he acted as mandatary of Shurtleff.
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His own interest in the property was, at least, co-extensive with the interest of Shurtleff if not larger.
His contention is entirely inconsistent with his payments on account, his repeated promises to pay more, and his excuses for delaying his payments.
He and Shurtleff continued by mutual tacit agreement to stand after the 23rd December, 1883, in exactly the same position as if the worlds for the term of three years " were struck out of the contre-lettre. If he was not a mandatary during the three years after the deeds, and I cannot conceive how he could contend that he was, he never became a mandatory afterwards.
Shurtleff always considered the plaintiff as a debtor to whom he extended delay and facilitated payments and the plaintiff never did or said anything to give to Shurtleff the least suspicion that such were not their relations as to this property. Had he, Shurtleff, at any time been aware that the plaintiff claimed to be his agent, and one as costly as he now claims to have been I rather think that his agency would have pretty soon been put an end to.
As to third parties the title was no doubt in Shurtleff but between him and the plaintiff the sale was only colourable. And even as to third parties no purchaser could have been found during the first three years who would have accepted a title from Shurtleff alone in view of the fact that the contre lettre was registered.
I cannot but view with suspicion the plaintiff's claim. As longs as Shurtleff lived he never demanded anything from him but, on the contrary, acknowledged him constantly as his creditor. But within a few days after Shurtleff's death he suddenly discovers that instead of being his debtor he was his creditor and makes this claim against his estate. And he does not
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claim to be paid, for his services solely since 1883 but even during the three years originally fixed by the contre lettre. The "mystery" he confided to George Robinson is now explained to my entire satisfaction. His action was, in my opinion, rightly dismissed by the judgment of the Superior Court.
His Lordship the Chief Justice refers me two cases exactly in point. The first is Hurlimann v. Comptoir d'escompte de Mascara () and the second Bonnival v. Barnoud ().
The reservation made in that judgment appears to me to amply protect whatever rights if any, the plaintiff might have against Shurtleff's legal representatives, and I would simply restore the said judgment in its entirety.
By the notes of the learned judge who gave that judgment I gather that he was of opinion that even assuming that the plaintiff has acted as mandatory for Shurtleff his action of assumpsit, as brought, did not lie. On this ground alone, perhaps, which is clearly open to him on the general issue the plaintiff's action fails. Guillouard, du Mandat (). His only remedy, assuming his allegations of fact to be true, was the action man-data contraria, with a tender of his reddition de comple.
Anyone who has acted as agent for another has an action to force his principal to receive a reddition de compte. À comptable has the same right to exact from his unwilling principal a settlement of their accounts that a principal has from an unwilling comptable. Bioche proc. vo. Compte (). Ferland v. Fréchette (); Rolland le Villargues vo. Compte (); Dalloz Rep. vo. Mandat (). The case of Joseph v. Philipps () invoked
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by the plaintiff on this point, does not help him. I refer to what we said of that case in Dorion v Dorion ()
As held by the Cour de Cassation in re Cardon:
En cas de contestation entre un débiteur et un créancier sur le produit de la gestion donnée à l'antichrèse, il y a obligation pour les tribunaux d'examiner les comptes présentant les recettes et dépenses effectives, de calculer la recette et la dépensée, et de fixer le reliquat d'âpres cet examen et les débats de compte. Farad vo. Nantissement ().
Now this ruling, though not on a precisely similar state of things, is entirely applicable to the present case.
However, I rest my conclusions on the fact that in my opinion, the plaintiff never was Shurtleff's agent in respect of this property.
Appeal allowed with costs.
Solicitors for appellants : Taylor & Buchan.
Solicitors for respondent : Brown & Mac Donald.
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