Westcott v. Luther

Westcott v. Luther

The instrument met the statutory definition of a promissory note (an unconditional written promise signed by the maker to pay a sum certain at a fixed time); the maker's request that the payee not enforce payment during the maker's life was only a collateral agreement and did not alter the unqualified obligation written in the note; once the document is a promissory note s.58 presumes consideration and shifts the onus to the defendant, which the defendant failed to discharge, and the plaintiff's proof of signature was sufficiently corroborated, therefore judgment for plaintiff upheld and appeal dismissed.

Citation
[1933] SCR 251
Parties
Appellant/defendant: George Westcott, Sole Surviving Executor of the Estate of Archibald McCormick, Deceased; Respondent/plaintiff: Martin Luther
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
15 March 1933
Procedural Posture
Civil Appeal (contract Promissory Note) / On Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario
Outcome
Appeal dismissed with costs.
Legal Topics
Promissory Note, Consideration, Corroboration of Evidence, Parol Agreement, Testamentary Gift, Collateral Agreement, Onus of Proof
Source Language
English
Contract Bills of Exchange Evidence Estate/probate Promissory Note Consideration Corroboration of Evidence Parol Agreement +3 more

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Parties

George Westcott, Sole Surviving Executor of the Estate of Archibald McCormick, Deceased

Appellant/defendant

Martin Luther

Respondent/plaintiff

Procedural Posture

Civil Appeal (contract Promissory Note) / On Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether the document is a promissory note within the meaning of the Bills of Exchange Act (s.176)
  2. 2 Whether plaintiff's evidence that the note was signed by the deceased was sufficiently corroborated under Ontario Evidence Act s.11
  3. 3 Whether the maker's request that the note not be produced until after his death converted the instrument into a conditional/testamentary gift rather than an unconditional promise

Ratio Decidendi

The instrument met the statutory definition of a promissory note (an unconditional written promise signed by the maker to pay a sum certain at a fixed time); the maker's request that the payee not enforce payment during the maker's life was only a collateral agreement and did not alter the unqualified obligation written in the note; once the document is a promissory note s.58 presumes consideration and shifts the onus to the defendant, which the defendant failed to discharge, and the plaintiff's proof of signature was sufficiently corroborated, therefore judgment for plaintiff upheld and appeal dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.
  • Judgment affirmed in favour of the respondent on the promissory note and entitlement to recover thereon.