Majority
Nous sommes d'avis que l'intim6e n'a pas rbussi h prou- LAuR ver que le document qu'elle invoque a r6ellement 6t6 sign6 GE M de sa marque par M. Latour ou qu'il constitue le testament de ce dernier.
II n'est pas n6cessaire, pour maintenir Rinfret c.J. l'action des appelants, d'en dire davantage.
L'appel doit ftre maintenu et le jugement de la Cour Sup6rieure doit 6tre r~tabli avec d~pens dans toutes les cours.
Judgment of the Court
is another case under article 1301 of the Civil Code. This Court has already rendered many decisions on the interpretation of that article; but the ruling case remains that of The Trust and Loan Co. of Canada v. Gauthier (1).
The several judgments rendered in the courts of Canada since then were nothing else than the application of the Trust & Loan judgment (1) to the particular facts in each instance.
In The Trust and Loan case (1), Lord Lindley, delivering the judgment of their Lordships, said, among other things, (p. .100):- And further on he says:- And at p. 101 his Lordship gives the answer:- We do not want to associate ourselves with many of the pronouncements in the formal judgment a quo. As matter of fact, the Court of King's Bench (Appeal Side) divided three judges to two in this matter, and what was handed down as the judgment of the majority is really made up in the main of the reasons of one of the judges who formed the majority. It does not express the views of the two other judges and in some "consid6rants" even it expresses the contrary of what those two judges said.
We agree with St. Germain and Barclay JJ. that the case of La Banque Canadienne Nationale v. Audet (1) is in point to the effect that where husband and wife are both shareholders in a company, the wife cannot guarantee the debts of that company, even if her husband's shares were fully paid up, because by so doing she obliges herself for her husband.
This is applying strictly the pronouncement of Lord Lindley on behalf of the Judicial Conunittee in the Trust and Loan case (2) that article 1301 of the Civil Code is now judicially held to mean that the wife cannot bind herself "for her husband" and that those words "are now judicially held to mean generally in any way for his purposes
This language renders it necessary to distinguish between obligations of a wife for her husband and obligations contracted for her. The object of the article is evidently to protect her against her husband and against herself. (Lord Lindley, at p. 100) (2).
In these circumstances the question of fraud does not enter into the discussion. The article is for the purpose of protecting the wife. It has always been regarded as a matter of public order and it must receive its application under all circumstances. The- obligation which the
. wife contracts in contravention of article 1301 C.C. is an absolute nullity. In the wording of the article it "is c. void and of no effect".
Since the judgment of the Privy Council in The Trust and Loan case (1), an amendment has been introduced by the Legislature adding to the article the words "saving the rights of creditors who contract in good faith".
In La Banque Canadienne Nationale v. Audet. (2), this
Court expressed its views upon the effect of that amendment.
Applying what was said in that case on that point we must say that, in the premises, the amendment cannot help the appellant. The bond subscribed to by the wife was given not for her own benefit but for the security of the company's debts.
That company was formed exclusively of the wife and the husband.
The only other shareholder held one share merely for the purpose of qualifying a third person according to -the requirements of the Quebec Company Law. It is immaterial whether the husband held more shares than the wife, as in the Audet case (2), or whether he held a lesser number of shares than she did. It is sufficient that he held a substantial interest in the company.
The wife, guaranteeing the company under such circumstances, clearly came within the wording of the article as interpreted by this Court in La Banque Canadienne Nationale v. Audet (2) and by the Judicial Committee in The Trust and Loan Co. v. Gauthier (1).
The appeal must be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Sperber, Godine & Cross.
Solicitors for the respondents: Gameroff & Fenster.
S.C.R.]
APPEAL by the defendant from the judgment of the Court of Appeal for British Columbia (1) dismissing (Sidney Smith J. A. dissenting) the defendant's appeal from the judgment of Bird J. (2) who held that there was a binding agreement entered into between the defendant and the plaintiffs whereby the defendant would sell to the plaintiffs all fuel wood produced at the defendant's mill at certain prices and the plaintiffs would buy at such prices and take delivery at said mill and keep clear the wood bunker at said mill; that the agreement was subsisting when it was terminated by a notice given by the defendant; that the agreement was for an undetermined time; that it was subject to termination by either party, only upon reasonable notice; that the notice given by the defendant was not reasonable; and therefore the agreement was wrongfully determined by the defendant, and the plaintiffs were entitled to damages.
(Whether the agreement was a terminable agreement would seem to have been doubted by Robertson J.A., one of the majority in the Court of Appeal; but he found it unnecessary to express any opinion upon that question).
Alfred Bull K.C., for the appellant.
C. K. Guild K.C. for the respondents.
On conclusion of the argument of counsel for the appellant, the Court adjourned to the following day, and, on the opening of Court on said following day, the Court, without calling on counsel for the respondents, dismissed the appeal with costs; Kerwin J. reading orally for the missoN Court the following reasons:
J.-It will be unnecessary to call upon you Mr. Guild. Mr. Bull has said all that was possible in support of the appellant's contention that there was no contract but, having had an opportunity of considering the evidence, we are all of the opinion that the trial judge and the Court of Appeal came to the right conclusion that there was a valid contract between the parties, entered into in April, It contained no stipulation as to its duration but the trial judge found, and the Court of Appeal agreed with him, that it was subject to termination upon reasonable notice, that the six days' notice given by the appellant on June 24ith, 1943, was unreasonable, that the contract was wrongfully determined on June 30th, 1943, and that six months' notice would have been reasonable. It was therefore referred to the District Registrar at Vancouver to inquire and certify what damages the respondents have sustained during the period from June 30th, 1943, to December 24th, 1943, by reason of the wrongful termination of the contract of April, 1942.
We are unable to agree with Mr. Bull's alternative contention that if the Court agreed with the courts below that such a contract had been made it could be terminated at any time. Speaking generally, a contract indefinite in time is prima facie perpetual.
The respondents do not quarrel with the finding that the contract in question was determinable upon six months' notice and no other period has been suggested.
In order to avoid any question, we think it proper to state that the damages to which the respondents are entitled must be fixed on the basis of the alterations in the original contract, assented to by the respondents and referred to in the reasons for judgments of the trial judge and the Court of Appeal.
The appeal fails and must be dismissed with costs. Appeal dismissed with costs.