Judgment of the Court
C.J.C.-This record, in our opinion, does not disclose any such cogent facts or circumstances as would warrant a reversal of the finding of the learned trial judge that the plaintiff was "'wholly unreliable " as a witness. That finding is abundantly warranted by the inconsistencies and contradictions of the plaintiff's own testimony and its conflict in material facts with that of such an admittedly upright and trustworthy witness as Mr. Speer, the solicitor who prepared and attended upon the execution of the documents in the obtaining of which the fraud alleged is said to have been committed.
In the case as made by the plaintiff in his evidence at the trial misconduct and misrepresentation on the part of Mr. Speer formed a notable feature. That the execution of the document containing the release was procured by a scheme carefully prepared by Coleman, the defendant company's manager, as a result of which the plaintiff was kept in ignorance of the presence in it of the release, being assured by Mr. Speer that it was "just a usual transfer,"such was the case the defendant was called upon to meet. On appeal, and again in this court, every imputation against Mr. Speer was unqualifiedly withdrawn and the plaintiffs case was rested wholly on his failure to realize the presence of a release clause in one of two documents which he was induced to sign in Mr. Speer's office, or on his in- S.C.R.
ability to appreciate its significance-a situation, for which, it is charged, Coleman, deliberately prepared and on which he successfully relied.
That case was not put forward at the trial and neither the defendant company nor the witness Coleman had any fair opportunity to meet it. With the utmost respect we are of the opinion that, under these circumstances, such a charge of fraudulent conduct by Coleman as that now insisted upon should not have been held by the Court of Appeal to have been established.
A basic fact on which the plaintiff's case must rest is that he executed the document containing the release clause in ignorance of its presence and effect. The burden of proving such ignorance rested on him. His evidence, which alone was offered to substantiate it, does not discharge that onus.
It is quite conceivable that the plaintiff, without any fraudulent intent or manoeuvre on the part of Coleman, such as is now suggested in support of his claim, may have executed the release with full realization of its import, because he was mistakenly optimistic as to the prospects of the brickmaking venture in which he had been engaged and of the company incorporated to carry it on. But however that may be, and without casting the slightest doubt on the right of the Court of Appeal in a proper case to find fraud established notwithstanding the contrary view taken by the trial judge (Annable v. Coventry) (1), we are all very clearly of the opinion that, under the circumstances of this case, the explicit findings of the trial judge, which obviously rested largely on his appreciation of the respective credibility of the three witnesses who testified before him-the plaintiff, Mr. Speer and Coleman-should not have been disturbed. Nocton v. Lord Ashburton (2). The appeal will be allowed with costs here and in the Court of Appeal and the judgment of the trial judge will be restored.
Appeal allowed with costs.