Judgment of the Court
J.-This appeal involves merely a question of local practice.
In 1900 the appellants caused to be issued a writ of revendication to seize and attach in the hands of the respondent all the books, documents and records the company and, among others, copies or records of all policies issued by him and also all maps, whether issued by Goad or others, which they alleged to be illegally detained by the respondent, who for several years had been their chief agent in the Province of Quebec but had recently been dismissed from office. By the conclusions of their demand, they pray first that the said seizure be declared good and valid, that they be declared proprietors of the said books, documents and records and that the respondent be ordered to give up the possession of the same to the appellants forthwith; and finally,
The trial judge maintained the saisie revendication and in this respect his judgment was confirmed by the Court of Appeal.
The respondent not having appealed from this judgment it is chosejugde between the parr ties, and its soundness cannot be questioned before this court, as contended for by the respondent.
The difficulty before us turns upon a point of practice which arose at the trial when the witnesses were examined.
The plaintiffs proved first that eighteen policy copy books-which could not be found when the seizure was made, but had been delivered up, pending the case, in January, 1901, and also the Goad plans which although seized were not delivered till November, 1901, under a judgment of the courthad been returned in a mutilated and incomplete condition, some 500 slips or wordings having been torn out of the policy copy books and numerous pencil memoranda and notes having been erased from the Goad plans, which slips and memoranda were proved to be very valuable and indispensable in the conduct of their insurance business.
Next, the plaintiffs endeavoured to establish and did establish that it would cost $2,000 to replace the Goad maps and $200 to replace the slips in the policy copy books.
The respondent objected to this evidence but the trial judge (Lavergne J.) allowed it and on the 19th January, 1903, he delivered the following judgment upon this branch of the case sued, said defendant caused all the valuable information gathered since I-several years respecting insurance risks and which had been inscribed and annotated said Goad's plans to removed, erased and rubbed Considering also that about policy wordings were removed from the copy books by tearing the leaves said books, whilst they were defendant's possession, which removal and destruction were G explained and justified any whatever;
Girouard J.
Considering that the value of plaintiffis property destroyed, to wit, the information Goad's plans and the policy wording, at least the sum
Considering that plaintiffs have established the essential allegations their demand;
Doth declare the saii. plaintiffs to the only true and lawful owners and proprietors said books, papers and documents claimed and demanded from the defendant, and the said plaintiffs entitled to the possession thereof ; condemns the defendant pay plaintiffs the said the whole with interest from this date and costs against said defendant. On the appeal of the respondent the money condemnation was rejected with costs, upon the ground that the mutilation and erasures were not in issue. The respondent invokes article 110 of the Code of Civil Procedure:
Every fact which, not alleged, is a nature to take the opposite party surprise or to raise issue not arising from the pleadines, must expressly pleaded.
See also art. P.
The trial judge has considered that the mutilations and erasures had been sufficiently alleged in the plaintifis' conclusions, which pray.
that the event the said defendant having secreted or made away with the sail books, papers and documents or any part or any portion thereof, condemned pay) the value the same, to wit, the sum The slips on the eighteen policy copy books and the memoranda and notes on the Goad plans had been e.ther secreted or made away with, and it was for that reason that the sum of $2,200 were allowed as representing in part the value of the property revendicated, and not as damages to plaintiffs for the privation of the papers and documents in the conduct of their business, a fact which could not be fully ascertained except in the distant future and induced them is05 to reserve their remedy.
We are not prepared to revise the ruling of the learned judge, except to the extent it may have caused injury.
Lambe v. Armstrong (1); Eastern Townships Bank v. (2) ; Finnie v. City of Montreal
J. The defendant contends that he hts been taken by surprise, at least as to the eighteen policy books, which had been delivered by him long before plaintiffs' answers to his pleas, without any allegation their part that they were mutilated and incomplete, although fully aware of the fact.
He swears that they were not made by him, nor by any one at his request or to his knowledge.
We believe that he had reason to complain that, with regard to this item of $200, the evidence adduced was of a nature to take him by surprise and cause him injury and for that reason we are inclined to deduct that amount from the. judgment of the Superior Court, although we admit that he could have prevented any possible in jury, if, upon a proper affidavit, he had moved for an adjournment. The appellants have, however, assented to this deduction of $200, and it is not necessary to say any more about it.
With regard to the larger sum of $2.000, for necessary work to replace the Goad plans, which were discovered for the first time when they were delivered November, 1901, under order of the court granted with the consent of the respondent, the judgment the Superior Court is restored.
The respondent cannot here allege surprise or any possible injustice, for he admits that the erasures were done by himself and a staff of clerks working day and night for two or three days preceding the seizure and to defeat the object of that seizuie, he being dismissed at the time. The reason he advanced in his evidence for acting in this manner was that the pencil notes were made by himself and were his property. He sadly misunderstood his rights.
All the courts are against him in this contention which is repeated in his factum, but was not pressed at the argument before us. Chief Justice Lacoste has dealt very lightly with this item, except that he finds the amount exaggerated.
We are not willing to intertere in this respect with the judgment of the trial judge, unless there was no evidence to support his finding: but it is admitted that there is precise evidence given by a competent witness, one Laidlaw, and we are not going to inquire why the learned.judge, who saw the witnesses, adopted his appreciation of the cost of restoring the property to its original value.
The appeal is, therefore, allowed and the judgment of the Superior Court is restored for $2,000 with costs in all the courts.
Appeal allowed with costs.