Judgment of the Court
- LOCKE J.:-This is an appeal from a judgment of the Court of Queen's Bench (Appeal Side) (1), by which the Kerwin C.J., Taschereau, Locke, Fauteux and Abbott JJ. (1) Q.R. [19541 Q.B. 582.
appeal of the present appellant from the judgment of McKinnon J. dismissing the action was dismissed.
The relevant facts are stated at length in the judgment Locke J. of the learned trial judge and reviewed in the Gagn6 J. and it is unnecessary to repeat them.
The question to be determined is whether the appellant .
became the holder in due course of the cheque signed in blank by the respondent and delivered to Hershunov in the circumstances described.
It was found as a fact at the trial that at the time, if the appellant did not have actual knowledge of the circumstances under which Hershunov was negotiating the respondent's cheque, he showed a wilful disregard of the facts and must have had a suspicion that there was something wrong and refrained from asking questions or making further enquiries.
These findings have been unanimously confirmed by the court to which the appeal was taken.
My consideration of the lengthy evidence in this matter discloses no ground upon. which we may properly interfere with these concurrent findings.
I respectfully agree with McKinnon J. that, in circumstances such as are disclosed by the evidence in this case, the test to be applied is that stated by Lord Blackburn in Jones v. Gordon (1), and by Lord Herschell in London Joint Stock Bank v. Simmons (2).
Fraud having been shown regarding the manner in which the respondent was induced to sign and deliver the cheque to Hershunov, the onus was upon the appellant to show that he had taken the bill in good faith and without notice of any defect in the title of the person negotiating it (s. 58(2) Bills of Exchange Act; Tatam v. Haslar (3).
Upon the facts as found in this case, that onus has not been discharged.
I would dismiss this appeal with costs.
Appeal dismissed with costs. Solicitors for the appellant: Rudenko & Gross.
Solicitor for the respondent: R. L. Bercovitch.
[1956J
Statutes and regulations cited
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Unresolved citations
- s. 58(2)