Grace and Company v. Perras

Per Mignault J.-The doctrine of estoppel, as it exists in England and the common law provinces of Canada, is no part of the law in Quebec.

APPEAL from the judgment of the Court of King's Bench, appeal side, Province of Quebec, (1) affirming the judgment of the trial judge and dismissing the appellant's action.

The action taken by the appellant was for $74,532.77 for damages for a pretended breach of contract entered into by the appellant with the respondent, by which the latter were to deliver 5,400 sides of chrome patent cow hides. The respondent pleaded that he had received a verbal order from appellant for 1,200 sides, *PRESENT:-Idington, Duff, Anglin, Brodeur and Mignault JJ. Q.R. K.B. 382.

which were delivered and paid for.

There was no written contract; but, subsequently to verbal negotiations with an employee of the respondent, the appellant sent a letter to the respondent as follows: "We herewith beg to confirm our verbal purchase from you of 450 dozen sides

Kindly let us have your confirmation in due course for our records The letter was delivered to the same employee of the respondent, the latter being then absent from Canada, but it was never answered. At the trial, the employee testified that he left the letter on his desk without paying any more attention to it, and the respondent swore that he knew of its existence only after the institution of the action. The 1,200 sides were delivered to the appellant after the sending of the letter.

J.-I do not think I can add anything useful to what has been said in the courts below. Without affirming all that has been so expressed I agree in the result and conclude that having regard to the entire evidence there was no such contract established as contended for by the appellant.

I therefore think the appeal should be dismissed with costs.

J.-The questions on this appeal are questions of fact.

I can see no adequate ground for differing from the conclusion of the court below.

J.-I cannot accept the appellant's contention that as a matter of law wherever one of two parties to a verbal commercial negotiation immediately thereafter writes a letter to the other purporting to state the terms of a contract arrived at between them the failure of the latter to repudiate such contract within a reasonable time imports an assent to it and affords conclusive evidence that the contract in fact exists in the terms stated. There may no doubt be-perhaps in the majority of such cases there are-circumstances which warrant that inference from the silence of the recipient of the letter. If followed by action on the part of the sender thereby induced, a case of estoppel may arise. But the presumption or inference is one of fact and the circumstances may be such that it should not-often cannot-be drawn.

The courts below have so regarded this case; and so far am I from being convinced that their view of it was erroneous that I incline to agree with it. The evidence of the two parties to the oral negotiations is in accord that a contract was made but is in direct conflict as to the quantity of goods agreed to be furnished to the plaintiff by the defendant.

The circumstances that the defendant had expressly instructed his agent to make no sale that he had not arranged a purchase to cover and that the agent had arranged such a purchase for the precise quantity which he says he agreed to sell to the plaintiff tend to corroborate his version of the result of the negotiations. Taken with the fact that the plaintiff's letter appears never to have come to the personal notice of the defendant these circumstances go far to preclude the inference of assent that might otherwise have been drawn from the defendant's silence.

. The plaintiff in my opinion has not established the contract on which he sues. The appeal therefore fails. J.-La demanderesse appelante, Grace and Company, pr6tend que le d6fendeur-intim6, Perras, s'est oblig6, en mai 1919, de lui vendre et livrer 5,400 demi peaux de vache.

Ce dernier nie l'existence de ce contrat; il pr6tend en outre qu'il ne s'est oblig6 de n'en livrer que 1,200 et qu'il a ex6cut6 son obligation. n'y a pas d'6crit de la part du d6fendeur. L'article 1235 du code civil d6clare que dans les matibres commerciales exc6dant cinquante dollars aucune action ne peut 4tre maintenue contre une personne sans un 6crit sign6 par elle dans le cas d'une vente d'effets, A moins que l'acheteur n'en ait accept6 ou regu une partie. Dans la pr6sente cause il y a eu livraison d'effets, mais cette livraison s'est-elle faite en execution d'un contrat de 5,400 articles ou seulement d'un contrat de 1200?

Sur ce dernier point la preuve est contradictoire.

Je serais port6 h croire que la pritention de la demanderesse est bien fond6e, que le contrat intervenu entre les parties couvrait bien la quantit6 de 5,400 peaux, vu que la lettre de la demanderesse en date du 13 mai, address6e A la raison sociale du d~fendeur, dit formellement:

et cette lettre est rest6e sans r6ponse 6crite. D'un autre c6t6 le silence de celui A qui une d6claration est faite de l'existence d'un contrat n'implique pas consentement ou obligation de sa part en r~gle g~ndrale. Son d6faut de r6ponse n'6quivaut pas en lui-mgme A un refus.

Pour consentir et s'obliger il faut un fait positif. Baudry Lacantinerie, Obligations, vol. ler, no. 44.

Le mime auteur cependant dit au no. 515 du mame trait6 que l'acceptation peut Stre induite du silence dans certains cas: et il parle de d6cisions oA en matiare J de commerce l'absence de r6ponse A une lettre 6crite A II declare cependant que cette proposition des tribunaux est trop absolue.

Dans la pr~sente cause la. demanderesse, A la fin de sa lettre demandait la confirmation du contrat dont elle all6guait l'existence.

II y avait d'autant plus de raison pour elle de demander cette confirmation qu'elle savait n'avoir eu de n6gotiations qu'avec un subalterne et que le d6fendeur lui-meme, dans une circonstance ant6rieure, n'avait pas voulu confirmer (et ce A la connaissance de la d6fenderesse) ce qui avait t fait par son employ6.

La confirmation du contrat all~gu6 par la demanderesse ne s'est pas effectu6e: au contraire, au retour de son voyage, le d6fendeur a formellement rdpudid le contrat.

De plus la preuve testimoniale est contradictoire et le juge qui pr6sidait au procds en Cour Supirieure a eu l'avantage de voir les t6moins et il a pu se former une meilleure opinion que nous sur la v6racit6 de ces t6moins.

II en est arriv6 A la conclusion que le contrat qui a 6t fait entre les parties n'avait trait qu'A 1,200 articles.

Dans ces circonstances, nous ne pouvons consid6rer le d~fendeur Perras comme s'6tant oblig6 de livrer A la demanderesse la quantit6 de peaux qu'elle allgue. Le jugement qui a renvoy6 son action doit Atre confirm6 avec d6pens.

J.-This case comes to this court with the findings of facts of the learned trial judge unanimously concurred in by the Court of King's Bench, and the dispute being as to the quantity of sides of J. chrome patent cow hides which were sold by the respondent to the appellant, is certainly a question of fact.

So far as the matter rested on the testimony of Osborne (the plaintiff's representative) on the one hand or of Hubbell (the defendant's employee) and the defendant himself on the other, the trial judge accepted the statements of the latter. And, assuming that under art. 1235 of the civil code the contract could be proved by parol evidence in view of the deliveries which the appellant claims were referable to the larger contract, the respondent to the smaller one, there would be no difficulty whatever had not the appellant written to the respondent the letter of May 13th, 1919, purporting to confirm a contract of sale of 450 dozen sides, which letter was received by Hubbell who never answered it, but is shown not to have come to the knowledge of the respondent who was then absent from Montreal.

The value of this letter is of course merely as evidence of a contract which the learned trial judge on the testimony found had not been entered into. It is noteworthy that the appellant has suffered no prejudice by reason of the failure of a reply to its letter, for during the previous month it had committed itself to a Paris firm to which it had undertaken to sell 500 dozen sides, and no action on its part was induced by the respondent's silence.

On this phase of the case, Mr. Justice Greenshields suggested that if it was the duty of the respondent to answer this letter, and if his failure to do so induced the appellant to do something which would not otherwise have been done and which resulted in damages, an action might lie, and if an action on these grounds were brought,

I have no doubt whatever that Mr. Justice Greenshields will fully agree with me when I venture to observe that the doctrine of estoppel as it exists in England and the common law provinces of the Dominion is no part of the law of the Province of Quebec. This, however, does not mean that in many cases where a person is held to be estopped in England, he would not be held liable in the Province of Quebec. Article 1730 of the civil code is an example of what, in England, is referable to the principle of estoppel, and where a person has by his representation induced another to alter his position to his prejudice, liability, in Quebec, could be predicated under articles 1053 and following of the civil code. Whether such liability could be relied on as a defence to an action, in order to avoid what has been called a "circuit d'actions," is a proposition which, were it necessary to discuss it here, could no doubt be supported on the authority of Pothier. May I merely add, with all due deference, that the use of such a word as "estoppel," coming as it does from another system of law, should be avoided in Quebec cases as possibly involving the recognition of a doctrine which, as it exists to-day, is not a part of the law administered in the Province of Quebec. In this case my opinion is, under the circumstances disclosed by the evidence, that the appellant could not create a contract by its letter affirming that contract had been entered into, that the failure of an answer, under the same circumstances, cannot serve as evidence of a non-existing contract, and while I would certainly not say that under no circumstances the neglect to answer a letter cannot give rise to J. liability or serve as a tacit admission, my opinion is that in the present case Hubbell's failure to answer the appellant's letter cannot be used as evidence that the respondent entered into a contract which the learned trial judge, on the evidence, finds was never made.

The opinions of the learned judges in the court of

King's Bench are so satisfactory to me that I respectfully express my concurrence therein.

The appeal should be dismissed with costs.

Appeal dismissed with costs.

& Stewart.