Wallace v. Souther

Wallace v. Souther

The appeal is allowed and a new trial ordered because the trial judge improperly rejected material admissible evidence (an affidavit and annexed letter used by plaintiffs) that bore directly on the defendant's plea of suretyship and discharge by giving time, and because the jury were not properly directed on the law governing interest (lex loci at Boston) so that interest could not be left to a Master without proper legal direction; additionally uncertainties as to the named payee undermined the plaintiffs' proof on the notes.

Citation
(1878) 2 SCR 598
Parties
Appellant: Thomas J. Wallace; Respondent: John Souther & Co
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
4 June 1878
Procedural Posture
Promissory Notes / Bills of Exchange (appeal) / Appeal to Supreme Court of Canada; Judgment on Appeal Ordering New Trial
Outcome
Appeal allowed; verdict set aside; new trial ordered; appellant awarded costs
Legal Topics
Promissory Notes, Suretyship, Admissibility of Evidence (affidavit/letter), Misdirection to Jury, Lex Loci Contractus (place of Payment), Stamping of Instruments, Interest as Damages
Source Language
English
Bills of Exchange Contract Evidence Civil Procedure Revenue (stamp Duty) Conflict of Laws Promissory Notes Suretyship +5 more

Case Brief

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Parties

Thomas J. Wallace

Appellant

John Souther & Co

Respondent

Procedural Posture

Promissory Notes / Bills of Exchange (appeal) / Appeal to Supreme Court of Canada; Judgment on Appeal Ordering New Trial

Legal Issues

  1. 1 Whether the defendant was liable as principal or only as surety and whether time given to the principal discharged the surety
  2. 2 Whether the trial judge improperly rejected admissible evidence (affidavit and annexed letter) offered by defendant
  3. 3 Whether the notes were enforceable by the plaintiffs given they were payable to "John Souther & Son" not the named plaintiffs in the writ

Ratio Decidendi

The appeal is allowed and a new trial ordered because the trial judge improperly rejected material admissible evidence (an affidavit and annexed letter used by plaintiffs) that bore directly on the defendant's plea of suretyship and discharge by giving time, and because the jury were not properly directed on the law governing interest (lex loci at Boston) so that interest could not be left to a Master without proper legal direction; additionally uncertainties as to the named payee undermined the plaintiffs' proof on the notes.

Court Disposition

Appeal allowed; verdict set aside; new trial ordered; appellant awarded costs

Orders

  • Appeal allowed with costs
  • Verdict of trial Court set aside