Michaels v. Michaels

APPEAL from a decision of the Supreme Court Nova Scotia affirming, by an equal division, the judgment at the trial in favour of the defendant.

The only question raised by the appeal was whether or not the appellant could maintain an action against her husband as maker of a promissory note indorsed to the plaintiff by the payee.

The provisions of the Married Woman's Property Acts affecting the question as set out in the judgment.

The note is not a contract between the parties such as is prohibited by the statute. It is in the hands of the plaintiff a chose in action.

Independent of the statutes relating to the property of married women, a married woman was capable of having a chose in action conferred on her. The indorsement of the note was an assignment of a chose in action and it belonged to the wife so long as the husband did not reduce it into possession. See Williams on Executors ed.) pp. 739 and 798; also Fleet v. Perrins per Blackburn J. at p. 541-2,(1868), decided before the earliest Married Woman's Proper- J.-The plaintiff, appellant, is the wife of the defendant, respondent, and sues her husband upon a promissory note, dated 6th June, 1892, $1,000, made by the husband and payable on demand to the order of one Jenny Levi, who gave valuable consideration therefor.

Jenny Levi subsequently indorsed the note to her sister, the plaintiff, as a present. It is admitted that the whole transaction as between all parties was a perfectly bond fide one, and the only question in controversy in this suit is whether or not the plaintiff, being the defendant's wife, can recover on the note in question.

At the time of the making of the note section three of chapter 94 of the Revised Statutes of Nova Scotia, 6th 8ieries, was in force. It is as follows:have, hold and enjoy all her real estate, not on or before such date taken possession of by her husband, bythimself or his tenants, and all her personal property, not on or before such date reduced into possession of her husband, whether such real estate or personal property shall have belonged to her before marriage or shall have been in any Sedgewick J. way acquired by her after marriage, otherwise than from her husband, free from his debts and obligations contracted after such date, and from his control or disposition without her consent, in as full and ample a manner as if she were sole and unmarried.

Section

Nothing herein contained shall authorise any married woman to make a contract with her husband otherwise than in this chapter expressly mentioned.

This chapter 94 and subsequent Acts on the subject of married women's property were by chapter 22 of the Acts of 1898 consolidated and amended; sees. 12 and 23 being as follows:

Every woman, whether married before or after this Act, shall have, in her own name, against all persons whomsoever, including her husband, the same civil remedies, and also (subject as regards her husband to the proviso hereinafter contained,) the same remedies and redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property belonged to her as a feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort.

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The case was tried before Mr. Justice Ritchie, who gave judgment for the husband, and his judgment was sustained by an equally divided court, the Chief

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Two questions arise, first, whether section 81 of ch. 94, above quoted applies to the case in question;

and secondly, if it does not whether section twelve of the Act of 1898, can be taken advantage of in order to sustain the action.

Upon the first point Mr. Justice Ritchie held, as I understand him, that the plaintiff could not succeed, inasmuch as her claim was based entirely upon the contract specified in the promissory note or, in other words, that there was some contractual obligation between the wife and the husband in respect of it, and that in consequence her right to succeed was shut out by her incapacity to make a contract with her husband as provided in section eighty-one, above referred to.

This, I respectfully submit, is a fundamental error in the judgment appealed from.

Section three gave her a right to hold and enjoy all her personal property, whether acquired before marriage or after marriage otherwise than from her husband. There can be no doubt but that the note in question is property, and that it had not been reduced into possession by the husband. It was, therefore, as much hers as if it had been a chattel, and she had a right to deal with it as the statute says " in as full and ample a manner as if she were sole and unmarried."

Is she prevented from enforcing it because at common law she could not enforce it against her husband? Or because she is prohibited by chapter 94 from making a contract with her husband?

In my judgment, she is not. There is not here, in my view, any contractual relationship between the husband and the wife. The contract is between the maker and the payee only and the wife's right depends, not upon any promise made to her or on her behalf by the husband, or upon any contractual relationship between the two, but upon other principles altogether. Now, it is elementary that as a general rule no one can recover in an action ex contractu except a person who is a party to the contract or his representative. There must in every case be privity of contract, a promise made by the defendant to the plaintiff Even if that promise is to pay money to a third person or to do something for the benefit of that third person, it is settled that that third person cannot sue on the contract, he not being the promisee

See Tweedle v. Atkinson And this principle has been laid down over and over again in this court as well as in England.

Cleaver v. Mutual Reserve Fund (2); Guerin v. Manchester Fire Assurance Co. at page 150.

There are, of course, exceptions to the rule, the most important exception being the case of Bills Exchange, which, by the law merchant, were excluded from the operation of the principle.

Promissory notes, as everybody knows, did not come within the operation of the law merchant, and the statute 3 & 4 Anne, ch. 9, was passed for that purpose.

Covenants running with the land may be considered as forming another exception, and now, in most of the provinces of Canada as well as in England, all contracts are assignable and the assignee may sue thereon in his own name.

But the maker of a promissory note makes his contract with the payee alone. It is by virtue of the statute of Anne, and subsequent legislation, and not by virtue of the contract, that a holder other than the payee is entitled to sue upon it. Although the action is an action ex contractu, the plaintiff obtains his title to sue upon the contract, not by virtue of a promise made to him, but of a promise made to the payee, which promise enures to his benefit as a legal consequence of the indorsation of the instrument to him by the payee or by any other indorser. It seems to me then clear that section 81 of chapter does not apply to the present case.

Upon the other ground Mr. Justice Ritchie stated that:

The Act referred to was passed before the institution of this action and, in my judgment, the plaintiff could avail herself of its provisions, notwithstanding that it was passed after the making of the note. Section 12 gives her, in express terms, in her own name, the right to sue her husband, and section 23 would seem to admit that even previously she had that right under the original Act.

I have no doubt but that the statute has a retrospective operation.

It is a provision relating to procedure and practice only, where the general principle that there is a presumption against retrospective construction does not apply. Gardner v. Lucas

His Lordship the Chief Justice took no part in the judgment on account of illness.

British Columbia reversing the judgment of Mr. Justice Mattin at the trial (1) in favour of the defendant. The defendant, Coplen, in May, 1892, located the "Cube lode " mineral claim in the Slocan Mining Division of West Kootenay District and on no. 2 post as well as in the description of the claim as recorded the direction of the side line of the claim was given as south-easterly.

William Callahan subsequently located the " Cody" and " Joker" fraction claims whereupon the dofendant claimed that the " Cube lode" covered a part of the ground on which the " Cody " and " Joker" fractions were located. William Callaghan then brought an " adverse action" under the British Columbia Mining Act, R. B. C. ch. 135. At the trial the plaintiff's action was dismissed, the trial judge holding that a certificate recorded by Coplen of work done on the ground in dispute made his title thereto perfect under section 28 of said Act which reads as follows:

" 28. Upon any disputes as to the title to any mineral claim no irregularity happening previous to the date of record of the last certificate of work shall affect the title thereto, and it shall be assumed that up to that date the title to such claim was perfect except upon suit by the Attorney-General based upon fraud." The irregularity in the case was as to the recorded description of the " Cube lode " claim the defendant alleging that the survey was erroneous and the direction of the side line, which was given as south-easterly should have been north-easterly.

The defendant's certificate of works was recorded before Callahan's.

Before the appeal to the court en banc the plaintiff William Callahan died and the action was revived in the name of his executor.

Sir Charles Hibbert Tupper Q.C. for the respondent. ; J.-That the description of the " Cube lode" claim as recorded by the appellant does not precisely conform to the provisions of the statute of British Columbia in force in that behalf is not disputed. The evidence indeed leaves no doubt in the matter, and it is in fact admitted. The only question therefore which, as it appears to me, is at all necessary to be decided in the present appeal is whether the deviation from the prescribed description was calculated to mislead, and did in fact mislead, William Callahan, now deceased, of whose estate the respondent is administrator, when subsequently recording the " Cody " and " Joker" fractions claims located by him on behalf of persons whose title was duly transferred to him in his life time. The "Cody" and "Joker " fractions claims as recorded cover portions of the "Cube lode" claim as claimed now by the appellant, but do not touch the " Cube lode" claim according to the description as recorded.

The whole contention of the appellant is that all objection to the defect in his recorded description of the " Cube lode" claim is removed by his certificates of work done by force of sec. 28 of ch. 135, Revised Statutes of British Columbia; but whatever effect that contention might be entitled to in an action between the appellant and the Provincial Government, it has no application here where the contest is solely between the appellant and the respondent, in which the sole question is whether the owner of the " Cody" and " Joker" fractions claims as recorded have not by reason of the error in the " Cube lode" claim as recorded, acquired superior right to the claim of the appellant to so much of the land covered by the records of the " Cody" and " Joker" claims as the appellant asserts claim to as part of the " Cube lode" claim as now claimed by him, although such land is not within the description of the " Cube lode" claim as recorded.

That the error in the description of the " Cube lode" claim as recorded was calculated to mislead and that in point of fact, the " Cody" and " Joker" fractions claims were located and recorded as they were by reason of such misleading error, have been found as facts by the learned judge