Dunsmuir v. Loewenberg, Harris & Co.

Dunsmuir v. Loewenberg, Harris & Co.

Where written correspondence fixed commission payable only upon a sale and said writings contained no provision for reimbursement or indemnity in the event of no sale, parol evidence of a collateral oral agreement to indemnify the agents for expenses is admissible and the question of the existence of that oral agreement is one for the jury; the trial judge erred in withdrawing the question from the jury, so the order for a new trial was properly affirmed.

Citation
(1900) 30 SCR 334
Parties
Appellant/defendant: Joan Olive Dunsmuir; Respondent/plaintiff: Loewenberg, Harris & Co.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
22 May 1900
Procedural Posture
Contract / Appeal to the Supreme Court of Canada From the Supreme Court of British Columbia; Decision on Appeal Concerning a New Trial Order
Outcome
Appeal dismissed with costs; order of the Supreme Court of British Columbia granting a new trial affirmed.
Legal Topics
Parol Evidence, Collateral Oral Agreement, Commission Agreement, New Trial, Withdrawal of Questions From Jury
Source Language
English
Contract Evidence Civil Procedure Parol Evidence Collateral Oral Agreement Commission Agreement New Trial Withdrawal of Questions From Jury

Case Brief

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Parties

Joan Olive Dunsmuir

Appellant/defendant

Loewenberg, Harris & Co.

Respondent/plaintiff

Procedural Posture

Contract / Appeal to the Supreme Court of Canada From the Supreme Court of British Columbia; Decision on Appeal Concerning a New Trial Order

Legal Issues

  1. 1 Whether parol evidence was admissible to prove a collateral oral agreement indemnifying agents for expenses where written letters fixed commission only
  2. 2 Whether the written correspondence constituted the entire contract and thus excluded any oral agreement
  3. 3 Whether the trial judge properly withdrew the case from the jury instead of leaving the issue of credibility and existence of an oral agreement to the jury

Ratio Decidendi

Where written correspondence fixed commission payable only upon a sale and said writings contained no provision for reimbursement or indemnity in the event of no sale, parol evidence of a collateral oral agreement to indemnify the agents for expenses is admissible and the question of the existence of that oral agreement is one for the jury; the trial judge erred in withdrawing the question from the jury, so the order for a new trial was properly affirmed.

Court Disposition

Appeal dismissed with costs; order of the Supreme Court of British Columbia granting a new trial affirmed.

Orders

  • Appeal dismissed with costs
  • Order of the Supreme Court of British Columbia granting a new trial affirmed