Gervais v. McCarthy

Gervais v. McCarthy

The appeal is dismissed: the failure to object at trial to the admission of parol evidence precluded raising the parol‑evidence objection on appeal, so the payment to Bastien was legally proved on the record; however Bastien lacked actual or ostensible authority to receive the capital before maturity and therefore the payment did not bind the plaintiff and the intervenant's claim fails; costs awarded to respondent.

Citation
(1904) 35 SCR 14
Parties
Appellants (defendants and Intervenants): Benoni Gervais and others; Respondent (plaintiff): Mary Jane McCarthy
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
23 May 1904
Procedural Posture
Appeal From Court of King's Bench, Province of Quebec / Appeal to the Supreme Court of Canada
Outcome
Appeal dismissed; judgment of Court of King's Bench and Superior Court affirmed
Legal Topics
Tacit Mandate, Parol Evidence Rule, Commencement of Proof in Writing, Forgery and Improbation, Payment to Mandatary, Custody of Notarial Deeds
Source Language
English
Agency Evidence Civil Procedure Notarial Law Mortgage Security (hypothec) Tacit Mandate Parol Evidence Rule Commencement of Proof in Writing +3 more

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Parties

Benoni Gervais and others

Appellants (defendants and Intervenants)

Mary Jane McCarthy

Respondent (plaintiff)

Procedural Posture

Appeal From Court of King's Bench, Province of Quebec / Appeal to the Supreme Court of Canada

Legal Issues

  1. 1 Whether a notary holding instruments in custody has actual or ostensible authority to receive capital sums for the client
  2. 2 Whether plaintiff's admissions and documentary endorsements constituted a commencement of proof in writing under Civil Code art.1233 and Code of Civil Procedure art.316 to permit parol evidence of mandate and payment
  3. 3 Whether the prohibition on parol testimony under the Civil Code is a rule of public order that courts must raise sua sponte

Ratio Decidendi

The appeal is dismissed: the failure to object at trial to the admission of parol evidence precluded raising the parol‑evidence objection on appeal, so the payment to Bastien was legally proved on the record; however Bastien lacked actual or ostensible authority to receive the capital before maturity and therefore the payment did not bind the plaintiff and the intervenant's claim fails; costs awarded to respondent.

Court Disposition

Appeal dismissed; judgment of Court of King's Bench and Superior Court affirmed

Orders

  • Appeal dismissed with costs to respondent
  • Intervention dismissed; discharge declared false and set aside; plaintiff's action for mortgage debt and hypothecary charge maintained with costs