Supreme Court of Canada
Caldwell v. Accident Insurance Company of North America, (1895) 24 SCR 263
Date: 1895-01-15
WILLIAM ALEXANDER CALDWELL es qual. (PLAINTIFF PAR REPRISE D'INSTANCE).
Appellant;
And
THE ACCIDENT INSURANCE CO. OF NORTH AMERICA (DEFENDANTS)
Respondents.
1894: Oct 6; 1895: Jan 15
PRESENT. —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).
Partnership—Registered declaration—Art. 1835 C.C.—Cons. Slats. L.C. ch. 65, sec. 1—Oral evidence—Life policy.
An action was brought by W. McL. and F. W. R. to recover amount of an accident pólice insuring the members of the firm of McL. Bros. & Co., alleging that J. S. McL., one of the partners, had been accidentally drowned.
After the policy was issued the plaintiffs signed and registered a declaration to the effect that the partnership of McL. Bros. & Co. bad been dissolved by mutual consent, and they also signed and registered a declaration of a new partnership under the same name, comprising the plaintiffs only.
At the trial the plaintiffs tendered oral evidence to prove that these declarations were incorrect and that J. S. McL. was a member of the partnership at the time of his death
Held, affirming the judgment of the court below, that such evidence was inadmissible. Art. 1835 C.C. and ch. 65 C.S.L.C.
Appeal by the curator to the insolvent estate of the firm of McLachlan, Bros. & Co., dry goods merchants, from a judgment of the Court of Queen's Bench for Lower Canada, which confirmed a judgment of the Court of Review () granting defendants' motion for judgment in their favour on the verdict of the jury, and dismissing the motion of plaintiff par reprise d'in stance for a new trial.
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The action was brought by William McLachlan and Francis W. Radford, as co-partners, under the style of McLachlan, Bros. & Co., for ten thousand dollars under an accident insurance policy.
The case was originally appealed to the Supreme Court from an order for a new trial made by the Court of Queen's Bench for the purpose of eliciting further information as to the facts and the appeal was quashed for want of jurisdiction, on the ground that the judgment appealed from was not a final judgment and did not come within the exceptions allowing an appeal in cases of new trials.
The facts are given in the former reports of the case () and in the judgment of Mr. Justice Taschereau hereinafter given.
Abbott Q.C. and Geoffrion Q.C. for appellant.
Cross Q.C. for respondents.
THE CHIEF JUSTICE.—I am of opinion that this appeal must be dismissed with costs.
TASCHEREAU J. This is the same case that came before us in 1890, upon a first jury trial, sub nomine, McLachlan v. The Accident Insurance Co. (1).
It now comes back to us upon a motion for a new trial by the plaintiffs the Court of Review in Mon treal, by a judgment confirmed in appeal, having dismissed their action upon the finding of the jury that at the time of the death of John McLachlan he had ceased, since the 10th April preceding to be a member of the firm of McLachlan Bros. & Co. Caldwell the present appellant, represents the original plaintiffs by reprise d'instance, as curator to their insolvent estate This however does not make any difference in the case which has to be considered, as to parties, upon
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this appeal, precisely as it stood before the reprise d'instance, and I will treat it in its original form.
Only one question of law arises on the present appeal : Had the plaintiffs the right to prove by oral evidence that John McLachlan had not ceased at his death to be a member of the said firm? The courts below held that they had not and from this holding they now appeal. The case turns upon the application and construction of art. 1835 of the civil code and c 65 C.S.L.C., which enact that the allegations contained in a registered declaration of partnership made under the statute cannot be controverted by any person who has signed the same, an enactment, I take it, which creates against any such signer a presumption juris et de jure.
It appears that there never was a registered firm of McLachlan Bros. & Co. composed of John McLachlan, William McLachlan, F. W. Radford, and Thomas Brophy, as mentioned in the policy of insurance in question. However, no point is made on this, nor is there anything in it that affects this case.
It is conceded that there was only one firm of McLachlan Bros. & Co.
in October, 1881, a declaration was filed of a partnership between John and William McLachlan, under the name of McLachlan Bros. & Co. By a notarial deed of October, 1885, between the said four parties mentioned in this policy it appears that John McLach Ian and William McLachlan continued then to be the only members of the firm of McLachlan Bros. & Co. On the 12th April following a few months after the issue of the policy in question, the said John and William McLachlan filed in the office of the Superior Court a declaration dated the 16th signed by them both, that the partnership theretofore existing between them under the name of McLachlan Bros. & Co. had been dissolved by mutual consent.
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Public notice in the Montreal Gazette, signed by the two parties, was given of this dissolution of partnership.
On the 20th of the same month a declaration was filed of the formation of a new partnership under the same name, by William McLachlan and Radford, the two plaintiffs in the present case.
In express terms, according to the statute, ch. 65 C.S.L.C., sec. 1, subsec. 2, they certify by the said declaration that they were the only members of the firm.
It is these two registered declarations that the plain tiffs would now controvert by oral evidence, that is to say, they offer to prove that it is not true that the partnership between John and William McLachlan was dissolved on the 16th April 1886 and that it is not true that they, the plaintiffs, were the only members of the firm of McLachlan, Bros. & Co., as stated in the declaration registered on the 20th of April, and that, notwithstanding these declarations the deceased John McLachlan had not, at the time of his death, ceased to be a member of the said firm.
They would contend that these declarations were simulated that they were made in fraud of the law; that they contained falsehoods; that they were, in fact false altogether; that they were made to impose upon the public, to make the public believe what was not true. They offer to prove that their obedience to the statute was only colourable, and this in face of an express enactment that any of the allegations in these registered declarations cannot be controverted by any evidence whatsoever, as against any party, by any person who has signed the same. Sec. 4, c. 65, C.S.L.C.; sec. 5635 et seq. R.S.Q.; art. 1835 C.C.; Cassidy v. Henry (); Stadacona Bank v. Knight (); Hodgson v. La Banque d'Hochelaga ()
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Now, are not these two plaintiffs the persons who have signed the declaration that, on the 14th of April, 1886, they were the only two members of this firm? Can they now controvert the truth of that declaration, and prove that John McLachlan was a third member of the firm? Did not William McLachlan, the plaintiff, sign the declaration of dissolution of partnership between him and the deceased John McLachlan? Can he now be admitted to contend that he knowingly certified to an untruth? I say, unhesitatingly, no. Even without the statute I would be inclined to think that the plaintiff would be estopped from doing so. They gave notice to this company that John was no more a member of the firm; the notice to the public by the registration itself was a notice to the company; and when did they ever notify the company that they had done this only to deceive? Immediately upon getting this notice the company cancelled another policy which they carried on John's life payable to himself and duly notified him of it. As to the policy in favour of the partnership, they had no notice to give the policy remained in force. It is only the insurance on John himself that ceased by his withdrawal from the firm, notified to them by the registration in the public registers kept for that purpose. The plaintiffs would now argue that the company should not have believed their solemn statements. The judgment rejecting their contention, and dismissing the action is unquestionably right, and the appeal should be dismissed with costs.
GWYNNE, SEDGEWICK and KING JJ. concurred.
Appeal dismissed with costs
Solicitors for appellants : Abbotts, Campbell & Meredith
Solicitors for respondents : Hall, Cross, Brown & Sharp
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