Sir W. J. C.J.-For the reasons assigned in the considirants of the judge of the Superior Court I think this appeal should be dismissed, and the judgment of the Superior Court affirmed with costs in all the courts.
and JJ. concurred.
.T.-The plaintiff, appellant, claiins from the respondent a sum of $2,500 upon a receipt for that amount dated October 6, 1885, which sum, as the appellant alleges, the respondent failed to apply as agreed upon. The respondent pleads that this receipt was given through error, and that he never received the $2,500 from the appellant.
The judge of the Superior Court who heard the witnesses i'ivd voce held that the respondent had clearly proved his plea and dismissed the action. The Court of Appeal confirmed that.judgment. Now, the appellant asks us to reverse on that question of fact. We intimated at the hearing that not only could we not see in this case anything to take it Out of the well settled rule of this court on appeals on questions of fact, but that the evidence that this J.
receipt had been given through error seemed to us overwhelming.
The appellant then contended for the first time that parol evidence against this receipt had been illegally admitted. He never objected to the evidence at the trial, and never even mentioned the point in the Court of Appeal. Now, in France, an objection of this nature cannot be taken for the first time in the Cour de Cassation
And why?
Because the objection is not based on a law of public order. The weight of authority seems to be now that the prohibition of article 1234 C. C. against the admission of parol evidence to contradict or vary a valid written instrument is not d'ordre public, and that, consequently, if such evidence is admitted. without objection the party to whom it is opposed cannot subsequently impeach its legality. Article 14 C. which enacts that prohibition laws import nullity does not alter the question, or rather is nothing but the same question, whether it is a nullild d'ordre public, or a nullitd relative only, or one which can be waived or not
The authorities pro and are collected in Sirey's Codes -annotds, under art. 1341,
Nos. 4 & 5, and an arrdt of the Cour de Cassation
However, independently of this consideration the appellant's contention is untenable. According to the case of JEtna Life v. Brodie (4), and in this court (5) it is settled law that the evidence now objected to here by the appellant was perfectly legal and rightly admitted, and that in commercial matters parol evidence can be adduced to prove error in a written instrument.
How far this rule as to proof of error in writing can be extended to noncommercial matters, as falling within the cases in which the party claiming could not procure proof in
J. writing, we have not here to consider.
J. concurred.
Appeal dismissed with costs.