Charlebois v. Surveyer

J.-This is an action for malicious prosecution on a criminal charge.

The plaintiff in his declaration alleges that on the 22nd of October, 1892, the defendant without any reasonable or probable cause, but from mere malice and after having been previously warned of the illegality of his procedure and of the risk he would run, laid a complaint upon oath before a Justice of the Peace for the Province of Quebec in which he accused the plaintiff of having feloniously and with intent to defraud, forged the name of his father L6on Charlebois upon a certain promissory note. The complaint made by the defendant before the justice was then set forth whereby it appeared that the defendant had deposed on oath that he had become the bearer of a promissory note for the sum of sixty dollars, dated Newmarket, 25th March, 1892, payable at sixty days from date, to the order of the Newmarket Washing Machine Company, at the Bank of Ontario, at Newmarket, signed " L6on Charlebois "-that he had since ascertained that the said note had been feloniously forged--that the signature " L6on Charlebois " should be that of Mr. L6on Charlebois, merchant of Pointe Clair, in the District of Montreal, but that the said L6on Charlebois had denied upon oath in a civil court that he had ever signed the said note--that Arsene Charlebois, his. son, had admitted in the same cause indirectly having set the signature at the foot of the note and that the father, Mon Charlebois, had also sworn in court that he had never authorized any person to sign the said J. note, "in consequence of which" the complaint proceeded, the defendant accused the said Arshne Charlebois with having feloniously forged the said note with intent to defraud. This complaint had been dismissed by the Police Magistrate, Judge Desnoyers, as unfounded.

To this declaration the defendant pleaded among other things that he was the bearer for value of a promissory note bearing the signature of L6on Charlebois, the plaintiff's father; that having sued the said Lon Charlebois in the Circuit Court upon the note he pleaded to the said action, and made oath that the signature placed at the foot of the note was not his, and that he had never authorized any one to sign it for him; that upon trial of the cause the defendant's action was dismissed with costs because it was then and there proved that the signature at the foot of the note had never been set thereto by the said L6on Charlebois, but by his son, the plaintiff, in the present action, without the authority, consent knowledge of the said Charlebois; that in these circumstances and considering the position of the plaintiff, his information and business experience, the defendant was justified in believing and had good reason to believe that the plaintiff knew perfectly well what he was doing when he signed the name of his father. The Superior Court and the Court of Appeal dismissed the plaintiff's action-and hence the present appeal.

It is noteworthy here that the defendant in his complaint before the magistrate alleged that since the * trial of the action in the Circuit Court he had ascer- .tained that the note had been feloniously forged. The dismissal of the complaint shows that he failed in establishing that allegation.

In the present action the sARLIBOIS defendant justifies his having made the charge upon much the same grounds. It becomes therefore important to consider whether the matter alleged by the defendant in his deposition upon the criminal charge and in his plea fairly states the whole of the matters brought to his notice before he made the criminal charge, and whether, in view of the circumstances which were so brought to his knowledge, it can be said that he had reasonable and probable cause for making the accusation against this young man who, according to the evidence, appears to bear the very best character and belongs to a family of the highest reputation of their class in the neighbourhood where they live.

Immediately after the trial of the action on the note and upon the 1st of October, 1892, the defendant wrote to Mr. Isaac Shupe, Newmarket, the agent of the company, and from whom the defendant had received the note, as follows:

We have not the whole of the evidence which was given in the action in the Circuit Court. However, in the present action the defendant has called and examined on his own behalf the plaintiff in this action, and on his examination the document purporting constitute his father agent of the Newmarket Washing Machine was put into his hands the same as was spoken of in the civil action and he was required to read it, which he did. The document headed:

CO.,

Gwynne

12th March, 1892. This is to certify that we have this day appointed L6on Charlebois our agent to sell machines in the parish of La Pointe-Claire and surrounding country.

We agree to furnish Lion Charlebois with all the machines he may require for thirty dollars a dozen, payable in sixty days, or twentyfour dollars cash on delivery, the said Charlebois to have and to hold the agency as long as he will push the sales and continue to purchase. Said L6on Charlebois agrees to keep the retail prices up to four dollars each.

We further agree to take back at manufacturer's prices and will pay cash on delivery, at any time after the expiration of sixty days from date hereof any machines that said Lon Charlebois cannot sell.

Upon the back of the document were printed the words following:- Ont., March 12th, 1892. Please have manufactured and sent me by express to Pointe Claire two dozen of your washing machines for which I agree to pay thirty dollars per dozen, in sixty days, by note, or twenty-four dollars per dozen, cash on delivery.

LtON CHARLEBOIS, Per The witness having been asked whether he had signed his father's name to this document, answered that he had; that he had been requested to do so by Mr. Shupe, but that he had never read what was on the back; that he had read what was on the face, and Shupe had explained it to him to mean that at the expiration of 60 days such of the machines as were not sold, if not returned, should be paid for, and that such as should have been sold should also be paid for, and he stated that his uncle Duchesneau was present at the time, but witness swore that he had not observed nor was his notice drawn to the words on the back of the document, nor was there any mention made of a note; that the only conditions of the bargain

* were those on the face of the document which Shupe explained as above, and that he relied wholly upon J. what Shupe explained to be the conditions which the document imposed. The witness also swore that when he went to the station on the 25th March for the machines, Parent, the agent, never said a word about there being to be paid, or a promissory note at days to be given. That it was about six o'clock in the evening when witness went to the station, that

Parent said, "sign this," and that witness signed without reading what he signed; that then Parent said there was a dollar and something over to pay for freight, and witness said that he did not recollect whether he had paid it or not, but he repeated and swore positively that not a word was said either about a promissory note or $48, and the witness added that he had been examined as a witness in the action in the Circuit Court, and had given this same testimony in the presence of the defendant.

The defendant in his examination before the Police

Magistrate Mr. Desnoyers, on the criminal charge against the plaintiff, said that the plaintiff in his examination in the action in the Circuit Court admitted that he had signed his father's name on the note produced in the action and that he had done so under the belief that he was signing a receipt for the express, and that he had signed no other receipt for the machines.

He admitted also that L6on Charlebois had said in his evidence in the same action that he had returned 22 of the machines, and that he was ready to pay 'for the other two, but the defendant never informed Mr. Shupe of this fact. He further said that he knew that Shupe's forms of contract permitted the agent toreturn machines at the manufacturer's price, and that he had reason to believe that 22 of the ' machines had been returned, but that he had not been reimbursed by the Newmarket Washing Machine n- Company the manufacturer's price of the returned machines.

He admitted also that Mr. St. Pierre, the advocate, before the commencement of the criminal proceedings, had requested him to suspend his proceedings until Mr. St. Pierre should have an opportunity to see L6on Charlebois to obtain the necessary information in the matter, and that Mr. St. Pierre told the defendant that if after obtaining such information he should be of opinion that either the plaintiff or his father were in any manner responsible to the defendant, that he would advise them to pay the note, and further, that on two different occasions Mr. St. Pierre had called at defendant's place of business and had told the defendant's agents that he had seen the Charlebois, both the father and the son, and after hearing their explanations he advised defendant as his friend not to take the criminal proceeding.

He admitted also that he did not believe that the plaintiff had been benefited in any manner by writing the name of his father on the note in question, but he added that if the machines had been sold it might have been different, and he said that he did not act upon Mr. St. Pierre's advice because he considered it impossible for a man of business to sign a receipt for a promissory note. On his examination in the present action he admitted that it was at his instance that Mr. Bryce the superintendent wrote a letter which was produced to Mr. Parent, and that Mr. Bryce submitted to defendant Parent's reply immediately upon receipt of which made the criminal charge against the plaintiff. These letters are as follows

Now, at the time of the defendant writing to Mr. Shupe the letter of the 1st October, 1892, he had the plaintiff's statement upon oath of the circumstances under which Shupe procured him to sign the document appointing his father agent of the Washing Machine Manufacturing Company which, upon its face has not a word about a promissory note being to be given, and further, that the plaintiff's attention had not been drawn to the nature and purport of the indorsement in which the words " by note " are introduced thus changing the purport and effect of what appears on the face of the document which had beenexplained to him by Shupe in the manner described by the plaintiff. No evidence whatever had been given to shake this sworn testimony of the plaintiff, and uncontradicted it seems to point very strongly to the fact of a deception of no uncommon character having been practised upon this youth by Mr. Shupe and calculated to deceive and which has succeeded in deceiving and defrauding more experienced persons than this youth of 20 years of age as the experience courts of justice has abundantly shown.

No promissory note having been mentioned in the transaction, hvn and the plaintiff's attention not having been drawn J.as he swore it had not to the contents of the indorsement which Shupe procured him to sign, it was but natural that he should not have expected a promissory note to be presented to him for his signature when he went for the machines at six o'clock on the evening of the 25th March, and only one paper having been presented to him for his signature when he received the machines, it is by no means incredible that the plaintiff should have signed it without reading it in the belief that it was a receipt for the goods that were being delivered to him that he was asked to sign. Yet it is upon the suggested incredibility 6f this statement of the plaintiff on his oath that the defendant mainly rests his charge against the plaintiff of his having feloniously forged his father's name to the note although no possible benefit that he could obtain fraud that he could thereby have committed has been or apparently can be suggested.

The defendant also in the civil action heard L6o

Charlebois swear that he had returned twenty-two of the machines as unsaleable and in accordance with the terms of the document appointing him agent of the company, and the defendant has admitted that he knew Shupe's forms of contracts, and that they allow agents to return unsold machines at the manufacturer's prices, and that he had reason to believe that twenty-two of the machines received by Charlebois had been returned. It is apparent then from the defendant's knowledge of the above facts that he had not, and from his letter of the 1st of October, 1892, that he knew he had not any reasonable grounds whereon to make a charge forgery against the plaintiff, and that his object in writing the letter was to try to obtain any evidence whereon to found such a charge in the hope and Cn expectation of thereby compelling L6on Charlebois, the father, to pay what the defendant had lost by his action having failed instead of suing the G J company who were liable to him as the indorsers. Now the only further evidence upon which the defendant rested his charge of felonious forgery against the plaintiff was Parent's answer to the latter written to him by Mr. Bryce at the defendant's suggestion, immediately after seeing which the defendant admits that he laid the charge in which he swore that since the action he had ascertained that the promissory note upon which the action was founded been feloniously forged. From the above facts it plainly appears, I think, that the defendant was willing to catch at any straw to satisfy his conscience and to enable him to force the plaintiff or his father rather to reimburse to him his loss, when he accepted this letter of Parent as sufficient to displace all the sworn testimony and to support such a grave charge as felonious forgery which the contents of Parent's letter, even if uncontradicted, were wholly insufficient to support.

I must say that the making of such a charge under the circumstances appearing in evidence as above detailed and in the face of the warning given by Mr. St. Pierre, an intimate acquaintance of the defendant and the plaintiff's father, was a wrongful, wanton, reckless and utterly unfounded proceeding originating in what is plainly shown to be actual malice.

Upon the charge before the magistrate the defendant appears to have called Parent to substantiate the statement in his letter.

Comparing his evidence so given in chief with what is in his letter no one could suppose, although established by himself in crossexamination that the receipt for the machines in the book of the express company which is in the name V'

" L. Charlebois," and over the " L " the letter " is inserted erasing the " L " is in the handwriting of J.Parent himself, and whom it would be as reasonable to accuse of forgery as to charge the plaintiff with forgery, even if he had knowingly set his father's name to the note. The witness stated that it was in the evening, about o'clock, when he, Parent, was very much engaged that plaintiff signed the paper, the entry having been presented to him upon receipt of which the machines were delivered to him; had the defendant been in possession of Parent's affidavit instead of his letter only there was nothing in it which in the face of all the other matters in the defendant's knowledge could have justified him in making the charge.