THE McGILL
LAW JOURNAL
VOLUME 4
AUTUMN 1957
NUMBF 1
TESTIMONY TO CONTRADICT OR VARY WRITINGS*
The Hon. George R. W. Owent
It is stated in art. 1234 C.C. that:
“Testimony cannot in any case, be received to contradict or vary the terms of a valid
written instrument”
The French version of this article is:
“Dans aucun cas, la preuve testimoniale ne peut
changer les termes d’un icrit valablement fait.”
tre admise pour contredire ou
In spite of its apparent conciseness, this is perhaps the article on evidence
which has given rise to the most conflicting jurisprudence. The rule can be
discussed under five headings:
1. The source of art. 1234 CC.
2. The meaning of the term “valid written instrument.”
3. The effect of 1233,(7) on 1234 CC.
4.
5. Alternatives to “contradict or vary.”
Is the rule of art. 1234 CC. one of public order?
The cases cited are offered as illustrations and do not exhaust the list of
leading cases.
1. TiaE SOURCE OF ART. 1234 C.C.
The French rule equivalent to art. 1234 C.C. is incorporated in art. 1341
of the Code Napoleon. The English rule is to be found in Greenleaf 1 and
English authors. These two rules are not identical, and consequently the de-
cisions and the doctrine in the two countries differ on certain points. Most
of the differences of opinion in Quebec as to the interpretation of art. 1234
*A lecture given as one of a series, under the auspices of the Faculty of Law,
McGill University, to the members of the Bar of the Province of Quebec, in February,
1957.
tThe Honorable Justice George R. W. Owen of the Court of Queen’s Bench,
Montreal.
McGILL LAW JOURNAL
[Vol. 4
C.C are due to disagreement as to whether our article is of French or of
English origin.
The Codifiers in their general notes on Proof say that they have not in
the chapter on Proof adhered as closely as usual to the French method and
principles.’
The French rule. The French rule was first enacted in the Ordonnance
de Moulins of 1566. It was reproduced in the Ordonnance of 1667 and is
now found almost in the same words in art. 1341 C.N., which reads as
follows:
“1341.
II doit atre pass& acte devant notaire ou sous signature priv~e, de toutes
choses exc~dant la valeur de 5000 francs, m~me pour d~p6ts volontaires, et il n’est
reu aucune preuve par t6moins contre et outre le contenu aux actes, ni sur ce qui
serait all~gu6 avoir 6t6 dit avant, lors ou depuis les actes, encore qu’il s’agisse d’une
somme ou valeur moindre de cinq mille francs.
Le tout sans pr6judice de ce qui est prescrit dans les lois relatives an commerce.”
Pothier in this connection states:
“L’Ordonance (1667) ne se contente pas d’exclure la prenve par t~moins en ce
qui serait directement contraire a un acte; elle ne permet pas de l’admettre outre
le contenu des actes, ni sur ce qui serait all~gu& avoir 6t6 dit lors, avant ou depuils.”2
Planiol explains that
“Prouver outre l’acte, c’est ajouter quelque chose i ses 6nonciations .
. Prouver
contre l’acte, ce serait 6tablir par t6moins qu’une de ses clauses est inexacte.” 3
There is a difference in the order of the articles in the Code Napoleon and
our Quebec Code. In the French Code, article 1341, prohibiting testimony
with respect to certain writings, is followed by articles 1342-48 which deal
with the exceptional cases in which testimony is allowed. In the Quebec
code, art. 1234, prohibiting testimony with respect
is
preceded by art. 1233 C.C. which sets out the seven exceptional cases in which
testimony is allowed.
to certain writings,
.
The English rule. Greenleaf, cited by the Quebec Codifiers, writes:
“275. By written evidence
in this place, is meant not everything that is in
writing, but only that which is of a documentary and more solemn nature, contain-
ing the terms of a contract between the parties and designed to be the repositary and
evidence of their intentions ….
When parties have deliberately put their engage-
ments in writing, in such terms as import a legal obligation
,without any un-
certainty as to the object or extent of such engagement, it is conclusively presumed
that the whole undertaking was reduced to writing; and all oral testimony of a
previous colloquium between the parties, or of cdnversations or declarations at the
time or afterwards, as would tend, in many instances, to substitute a new and
different contract for the one which was really agreed upon, to the prejudice, pos-
sibly, of one of the parties, is rejected. In other words, as the rule is now more
briefly expressed, parol contemporaneous evidence is inadmissible to contradict or
vary the terms of a valid written instrument.”14
lCodifiers Report, First Report, p. 28.
20bligations, Bugnet ed. (1861), no. 793.
3 Traiti Elimentaire de Droit Civil (1917), no. 1138.
40n Evidence (1848), no. 275.
No. 1]
TESTIMONY AND WRITINGS
View that the origin of art. 1234 C.C. is English. The following argu-
ments are adduced in support of this view:
(1) The phraseology of our article follows Greenleaf. The last words of
the passage of Greenleaf just cited are “parol contemporaneous evidence is
inadmissible to contradict or vary the terms of a valid written instrument.”
Our article reads: “Testimony cannot in any case be received to contradict
or vary the terms of a valid written instrument.” This phraseology differs
from art. 1341 C.N. It does not prohibit expressly proof “par tanoins outre
le contenu aux actes” and “sur ce qui a &t6 dit avant lors ou depuis les actes.”
(2) The arrangement or order of articles 1233 and 1234 in our Code is in
keeping with the English rule but differs substantially from the arrangement
of the corresponding articles in the Code Napoleon. We saw earlier that in
our Code art. 1234 comes after the seven exceptional cases in which testimony
is admitted (art. 1233) whereas in the French Code the corresponding article
1341 C.N. comes before the exceptions.
(3) Langelier, in his work on the Quebec law of evidence, writes:
,
“585. On voit que les r6dacteurs de notre article 1234 ont copi6 la r6gle du droit
anglais plut6t que celle du droit franais. Cet article n’est m~me que la traduction
les
littrale de la r~gle du droit anglais, telle que posie par Greenleaf d’apr~s
autorit~s. Ceci est important A constater, car, puisque la r~gle est emprunt~e au
droit anglais, elle doit, au cas de difference entre les autoritis anglaises et fran-
.aises, Etre interprtie d’apr6s les premieres plut6t que d’apr~s les secondes.” 5
(4) The view that the origin of the article is English also finds support
in the jurisprudence. Sir Henry Strong, C.J. states in Bury v. Murray:6
” . .. as article 1234 says that oral proof shall not in any case be received it must
be interpreted as excluding all the cases mentioned in the next preceding article. It
is not to the purpose to show that the French authorities are against this, for the
French Code makes different provisions for such a case. Art. 1341 of that code
which says that oral proof shall not be received against actes is followed by article
1347, which introduces an express exception in favor of the admission of such proof
when there exists a commencement of proof in writing.”
And in Roy v. Doyen,7 Dorion J. said:
“I1 a toujours 6t6 pritendu que ces mots depuis les actes empchaient toute preuve
verbale de convention subs~quente aux actes. L’Art. 1341 du Code Napol6on a repro-
duit les expressions de l’ordonnance, et presque tous les commentateurs du Code
enseignent qu’il faut un 6crit pour modifier un 6crit.
“Cependant, notre jurisprudence n’a pas accept6 cette doctrine et avec raison.
En effet, l’art. 1234 de notre Code civil n’a pas reproduit les termes de l’Ordon-
nance; elle a adopt6 une r~daction tirie de la jurisprudence anglaise, voulant en
faire une r~gle commune au droit civil, bas6 sur le droit francais et au droit com-
mercial, bas6 sur le droit anglais en mati~re de preuve.”
In an other case,8 decided by the Quebec Court of Appeal in 1924, Howard
J. expressly declares that our article is derived from English law and that
5De la Preuve (1894), no. 585.
6(1894), 24 S.C.R. 77, at p. 83.
7(1919), 55 S.C. 217. (Cour of Review).
SThe Perreault Printing Co. v. The Canadian Manufacturers Assoc. (1924), 38
KB. 154 at p. 157.
4
McGILL LAW JOURNAL
[Vol. 4
consequently English precedents have force in Quebec. Many other cases,
while not stating clearly that the source of 1234 C.C. is English, nevertheless
would not be consistent with the French rule.0
View that the source of 1234 C.C. is French. This contention has been
put forward most forcefully by the then young lawyer Philippe Demers in
1895.10 Dorion in his thesis on the admissibility of testimony expressed the
opinion that, as article 1234 was not placed in square brackets, it followed
French law. However, later, as a judge in the Court of Revision, in the case
of Roy v. Doyen” he changed his mind and held the opposite view.
At the moment the giiding jurisprudence is to the effect that the source of
art. 1234 C.C. is English.
2. Meaning of the term “valid written instrument.”
It is not every piece of paper with words written on it that is considered
to be a valid written instrument and to come within the terms of article 1234
C.C. The writing must to some extent be a formal one. It must have been
drawn up with the intention of serving as evidence of an agreement. It should
be what the French commentators call “une preuve pr6constitu6e.”
Langelier’ 2 states that the words means “un 6crit qui r6unit toutes les con-
ditions voulues pour qu’il constitue une preuve par 6crit, un 6crit r6dig6
formellement et avec soin pour constater une convention.”
Mignault 13 writes:
“La premiere condition c’est qu’il y ait tn &erit valablement fait, c’est-ii-dire un
ecrit dressE avec soin, et qui prouve la convention. Un crit informe, comme l’entr~e
dans un registre,, pourrait certainement 6tre contredit.”
We saw that Greenleaf said :14
“By written evidence, in this place, is meant not everything that is in writing,
but only that which is of a documentary and more solemn nature, containing the
terms of a contract between the parties, and designed to be the repository and
evidence of their final intentions.”
Taylor 15 defines it as follows:
.
” .
. The term “written instrument,” as used in the rule, includes not only
records, deeds, wills, and other instruments required by the statute or common law
to be in writing, but every document which contains the terms of a contract between
different parties, and is designed to be the repository and evidence of their final
intentions.”
It should be noted that a writing might serve as a commencement of proof
and yet not be a valid written instrument within the meaning of art. 1234 C.C.
9See, for instance, Dassylva v. Dassylva, 1951 K.B. 608, at p. 610.
10 Commencemnent de Preuve par icrit, (1895), 1 R.L.n.s. 166 and 435.
11(1919), 55 S.C. 217.
20p. cit., no. 587.
13Le Droit Civil Canadien, (1908), vol. 6, p. 83.
140p. Cit., loc. cit.
15Treatise on the Law of Evidence, (1920), vol. 2. no. 1133.
No. 1 ]
TESTIMONY AND WRITINGS
For instance, it has been held 16 that credit entries in a bank book can be
contradicted by testimony, i.e. a bank book is not a “valid written instrument.”
But it could be a commencement of proof in writing provided the other re-
quirements were met.’ 7
There is some difference of opihion as to receipts. According to our juris-
prudence, it would seem that an informal receipt at the bottom of an account
may be contradicted by testimony, but not one which is formally drawn up to
establish the situation between the parties.’ 8 In this connection, then, the term
“valid written instrument” means a writing, to some extent a formal one,
drawn up with the intention of serving as evidence of an agreement.
3. The effect of 1233(7) C.C. on 1234 C.C.
Art. 1233(7) C.C. permits proof by testimony when there is a commence-
ment of proof in writing. The rule in our Code prohibiting testimony to con-
tradict or vary the terms of a valid written instrument follows immediately
the enumeration of the exceptional cases in which parol evidence is admitted.
Art. 1234 begins with the words: “Testimony cannot in any case be re-
. ” According to Langelier 19 this means that even in any of the seven
ceived.
cases mentioned in 1233 C.C., if there is a valid written instrument, testimony
cannot be offered to contradict or vary the writing.
.
The question has arisen as to whether verbal evidence is admissible to con-
tradict a written instrument where a commencement of proof in writing
existed. The headnote of Bury v. Murray20 reads in part: “Verbal evidence is
inadmissible to contradict an absolute notarial transfer even where there is a
commencement of proof in writing. Article 1234 C.C.” On the question of
evidence, Chief Justice Strong stated:
“It has been determined …
that there was no sufficient commencement of proof
in writing to be found in the deposition of the respondent to let in the testimony
of witnesses. Whether this is so or not, can, in the view I take, make no difference,
for even assuming that there was a perfectly good commencement of proof in writ-
ing, verbal evidence would still be inadmissible. Article 1234 of the C.C. says:
(citation).”
The Chief Justice then asks whether
it is permissible, notwithstanding
article 1234, to receive-verbal testimony to alter or contradict a deed or other
writings on the ground that there is a commencement of proof in writing…
He says:
“By article 1233 seven cases are enumerated in which testimonial proof is ad-
missible; one of them is the case where there is a commencement of proof in
writing. Then as article 1234 says that oral proof shall not in any case be received
it must be interpreted as excluding all the cases mentioned in the next preceding
l6Pyke v. Sovereign Bank (1915), 24 K.B. 198.
17Boisclair v. Commissaires d’icole de St-Girard de Magella, (1920), 57 S.C. 335.
18Langelier, op. cit., p. 248; Mignault, op. cit., p. 83, footnote (b); Keller v. Esmond
Garment Inc., [1953] R.L.n.s. 113; Beauchamp v. Lazar, [1951] R.L.n.s. 570.
190p. cit., pp. 246, 258, 259.
20(1894), 24 S.C.R. 77.
McGILL LAW JOURNAL
[Vol. 4
article. It is not to the purpose to show that the French authorities are against this,
for the French code makes different provision for such a case. Art. 1341 of that
code which says that oral proof shall not be received against actes is followed by
article 1347, which introduces an express exception in favor of the admission of
such proof when there exists a commencement of proof by writing. This question is
in the province of Quebec lately
ably treated in a work on the law of evidence
published (Langelier, de ]a Preuve, arts. 584-640); and in the absence of judicial
decisions to the contrary I adopt the learned author’s conclusions, inasmuch as they
appear to be founded on unanswerable arguments.”
Fournier, Sedgewick & King JJ. concurred with the Chief Justice without any
remarks.
Taschereau J. says: “For the reasons given by the S.C. in its formal judgment,
I am of the opinion that this appeal should be dismissed with costs.
“I express no opinion, one way or the other on the point determined by the
majority of the Court as to the admissibility of verbal evidence under arts. 1233,
1234, 1235 of the Code where there is a commencement of proof in writing. The
solution to this question is not necessary to determine the cases and it was not
argued before us, nor determined by the courts below.”
This decision and Langelier’s views were criticized by Philippe Demers21
who said that the Supreme Court adopted Langelier’s view on the ground
that there were no decisions to the contrary. Demers then cited nine decisions
which he said were to the contrary. He denied that article 1234 C.C. re-
produces the English rule and also rejected the view that 1234 C.C. applies
to all the cases mentioned in 1233 C.C.22
Mignault2
refers to decisions laying down the principle that the com-
mencement of proof in writing constituted by the admission of a party may
serve to allow testimony against a writing and comments as follows:
“Je n’admets pas la doctrine de ces arrts. Ou bien l’aveu constitue une preuve
complete, et alors la partie qui le fait ne peut pas invoquer l’acte qu’elle a contre-
dit elle-m~me; ou bien, l’aveu ne constitue qu’un commencement de preuve, insuf-
fisant pour 6tablir le fait all6gu6, et alors, il serait supr~mement illogique de se
fonder sur cette preuve incomplete, pour autoriser une preuve testimoniale qui, aux
termes de l’article 1234, ne peut Etre admise.”
Bury v. Murray was followed by the Court of Appeal in St. Martin v.
Mathieu’4 where one of the three judges, Allard J., considered that a com-
mencement of proof in writing should admit verbal evidence, but felt never-
theless bound to follow Bury v. Murray. His colleague, Rivard J., concluded
that in the circumstances of the case there was no commencement of proof
and declined to decide the other point. Hall J., dissenting, cited two old cases
implied that partial admissions would suffice to admit
which undoubtedly
verbal evidence.
The matter came before the Superior Court in the case of Petit v. Auger25
and Mr. Justice Andr6 Demers held:
buttal appears at page 435 of the same volume.
21Loc. cit.
22Langelier replies to this article at page 355 of (1895), 1 R.L.n.s.; Demers’s re-
230p. cit., vol. 6 p, 86, footnote (c.)
24(1924), 36 I-B. 421.
25[1953] S.C. 203.
No. 1]
TESTIMONY AND WRITINGS
“Si 1’on s’en tient A l’art. 1234 C.C. il est indiscutable qu’aucune preuve ne peut
6tre admise A 1’encontre d’un 6crit, valablement fait, il s’agit d’un acte authentique
dans la pr~sente cause.
“C’est d’ailleurs l’opinion de Langelier dans son Trait6 de la Preuve, page 258,
nos 610 et 611, lorsqu’il dit que hors 1’aveu de la partie, aucune preuve testimo-
niale ne saurait 6tre admise.
“La Cour Supreme, dans Bury v. Murray, suit 1’opinion de Langelier . . . Notre
Cour d’Appel a suivi ce jugement de la Cour Supreme dans St. Martin v. Mathieu,
mais le juge Allard y a exprimE une opinion contraire et le juge Hall 6tait dissi-
dent. L’opinion contraire, i savoir qu’on peut contredire un 6crit lorsqu’il y a un
commencement de preuve, a 6t6 soutenue par de nombreux jugements jusqu’A celui de
Bury v. Murray.
“Quelle que soit notre opinion sur la question, nous nous croyons li6s par l’autoritE
de la cause de Bury. Il est indiscutable que le demandeur n’a pas obtenu l’aveu et
que, dans les circonstances, l’objection a toute preuve testimoniale doit Etre main-
tenue et I’action rejetie.”
Is the rule of 1234 C.C. a rule of public order?
4.
If proof by testimony to contradict or vary a valid written instrument is
made without objection should the Court oil its own initiative disregard such
evidence? Langelier 26 cites the old French law and concludes that the rules
set out in art. 1233 are of public order. The same reasoning would apply to
art. 1234 C.C. Mignault 27 takes the opposite view. It
is this view which has
been followed by the courts.
Thus, it was held in Schwersenski v. Vineberg2 8 that
“the prohibition of art. 1234 C.C. against the admission of parol evidence to con-
tradict or vary a written instrument is not d’ordre public, and that if such evidence
is admitted without objection at the trial it cannot subsequently be set aside in a
Court of Appeal.”
The Supreme Court reiterated this view in Gervais v. McCarthy,29 when it
was held that
“the prohibition of parol testimony, in certain cases, by the Civil Code is not a rule
of public order which must be judicially noticed, and where such evidence haq been
improperly admitted at the trial without objection, the adverse party cannot take
objection to the irregularity on appeal.”
More recently, the Court of Appeal held that
“an additional reason for permitting verbal evidence is the fact that it does not
appear from the record that any objection was made to verbal testimony. The rule
that proof must be made by writing is not of public order. If no objection is taken,
the proof by testimony is valid.3 ‘
5. Alternatives to “Contradict or Vary.”
But one cannot always depend on one’s adversary to introduce testimony
the introduction of testimony in con-
or to permit – without objection –
2OLoc. cit.
2 7 0p. cit., pp. 58, 59.
28(1891), 19 S.C.1. 243.
29(1904), 35 S.C.R. 14.
SOMcCallum v. Babineau, [1956] K.B. 774.
alTo this effect: Allen v. Cardin (1927), 42 K.B. 362; ColI~ge Ste-Marie v. Racette,
[1941] R.L.n.s. 129; St-Georges v. Auger, [1943] K.B. 241; King v. Savard, [1944]
K.B. 328; Fortin v. Veilleux, [1946] K.B. 142; Beauvais v. Filiol, (1924), 36 KB. 344.
McGILL LAW JOURNAL
[Vol. 4
travention or in avoidance of the provisions of art. 1234 C.C. Much ingenuity
has been displayed in piloting testimony into the record without foundering
on the prohibition of art. 1234 C.C.
This article states that one cannot by testimony contradict or vary the terms
of a valid written instrument. It is not surprising that many attempts have
been made to introduce testimony with respect to written contracts; not, of
course, for the purpose of contradicting or varying that writing, but for
allegedly entirely different purposes such as:
(a)
(b)
(c)
(d)
(e)
completing an incomplete writing;
interpreting an ambiguous writing;
proving a subsequent oral contract;
proving collateral contracts;
proving error, fraud, violence or fear as a cause of nullity of a written
contract.
The decided cases do not necessarily establish fundamental principles but
they do illustrate different ways in which testimony has been introduced with
respect to writings without contradicting or varying such writings.
(a)
Testimony to complete terms of a written instrument. Our Code
in 1234 does not specifically prohibit proof by testimony “outre le contenu”
of the French Code.
of writings as does the corresponding article
Mignault3 2 writes:
(1341)
“Je crois qu’on peut prouver outre le contenu d’un acte lorsque cette preuve ne
tend pas A contredi re ou a changer les termes de cet acte.”
Two other articles of the Code must not be forgotten in this connection. Art.
1017 C.C. provides that:
The customary clauses must be supplied
in contracts, although they be not
expressed.
and art. 1024 says:
“The obligation of a contract extends not only to what is expressed in it, but
also to all the consequences which, by equity, usage or law, are incident to the
contract, according to its nature.”
For instance, in Dominion Gresham Guarantee and Casualty Co. v. Crooks33
testimony was allowed to prove a custom or usage to the effect that when a
contract of insurance is cancelled by one party the insurance agent is entitled
to retain only a part of the commission in proportion to the premium earned.
In Rainboth v. O’Brien3 4 Cross J. said :35
“Proof of attendant facts and circumstances may show that the real contract
entered into differs from that which the writing purports to have disclosed. Proof
is not to be made in contradiction of the covenants of the writing. The appellant
32 0p. cit., vol 6, pp. 83-84.
33(1933), 55 K.B. 528.
34(1915), 24 K.B. 88.
35At page 92.
No. 1l]
TESTIMONY AND WRITINGS
objected to evidence on that ground. But proof of accompanying circumstances can
be made and the effect of such proof may be enhanced by elements of ambiguity or
inadequacy or incompleteness in the writing.”
In larry v. Jourdain3 6 there was a writing whereby defendant recognized
that he owed plaintiff a 1949 Meteor car or the value thereof and undertook
to deliver it on a certain date. Proof by testimony was allowed to show that
the indebtedness arose out of an illegal lottery and plaintiff’s action was
dismissed.
(b)
Testimony
to interpret an ambiguous writing. Here again,
the
argument runs that testimony is offered not to contradict or vary the writing
but merely to interpret ambiguous provisions contained in the writing. Art.
1016 C.C. states the rule that “Whatever
is doubtful must be determined
according to the usage of the country where the contract is made.” Oral
evidence is admissible to prove such usage.
The House of Lords admitted oral evidence to explain the meaning of the
terms in a lease “payable in Chile by first class bills on London.” 37 Viscount
Sankey said in that case:
“Without endeavouring to give an exhaustive definition of what evidence may be
admitted, there are in cases like the present three conditions precedent to its being
accepted:
1. the evidence must not conflict with a statutory definition;
2.
3.
the evidence must be of a usage common to the place in question; and
the evidence must expound and not contradict the terms of the contract.”38
A decision of the New Brunswick Court of Appeal allowed testimony in
view of the recognized ambiguity of the terms of a written contract dealing
with the scaling of logs.39 In another case, testimony was permitted to help
determine whether the word “dollars” used in the writings meant American
or Canadian dollars.40 Testimony was allowed where one defendant signed a
lease without indicating in what quality he did so and there was a dispute as
to whether he signed as a witness or as a guarantor. 41 Where a written
contract for the sale of a car included an extra item for “financial charges”
the buyer was permitted to testify that the vendor’s agent had explained that
this term included insurance. 42
(c)
Testimony to prove a subsequent oral contract. Parties to a valid
written contract are almost always at liberty subsequently to change
the
agreement, or even to annul it. The proof of the second agreement may be
merely the setting up of something which the parties did later and not a case
of offering evidence to contradict or vary the terms of the first written
36[1950] S.C. 11. See also Siscoe Gold Mines v. Bijakowski, [1935] S.C.R. 193.
3 7DeBeeche v. North American Stores et al., [1935] A.C. 148.
3SAt page 158.
39Mann v. St. Croix Paper Co., (1912), 5 D.L.R. 596.
40Tracy v. Hyde, [1943] S.C. 272.
41Bohemier v. Lefebvre (1933), 71 S.C. 289.
42Wareloo Motors v. Flood, (1931), 1 D.L.R. 762.
McGILL LAW JOURNAL
[Vol. 4
agreement. Strictly speaking it could be said that the question of subsequent
oral contracts comes under art. 1233 C.C. rather than 1234 C.C. In other
words, the problem is whether the second agreement falls within one of the
seven exceptional cases of art. 1233 C.C. in which proof by testimony is
permitted.
In one case,4 decided by the Court of Appeal in 1919, the buyer had a
written contract covering the purchase of 500 boxes of tomatoes. He alleged
that only 200 boxes had been delivered and asked for damages. The seller
admitted the written contract but alleged a subsequent oral contract whereby
the quantity was reduced to 200 boxcs. Objection was taken that the proposed
testimony was inadmissible since it would contradict or vary the terms of the
written contract for 500 boxes. But the Court allowed verbal evidence of the
subsequent contract on the grounds that it was a commercial contract being a
sale between dealers and susceptible of proof by testimony under 1233(1)
C.C. and that it did not fall under the prohibition of art. 1234 C.C.
(d) Collateral contracts. A contract may be composed of more than
one agreement. For example, there may be two writings or there may be a
writing and an oral agreement. Such collateral agreements can be proved by
oral testimony. Langelier 44 writes:
591. Ce n’est pas, non plus, contredire ou modifier un 6crit, que de prouver
qu’avant sa confection, ou lors de sa confection, les parties ont fait une autre
convention sur des mati6res collatrales i celle qui en fait l’objet, ou bien ont fait
une convention verbale qui constitue une condition d’ofi d6pend l’accomplissement
de la convention 6crite. Par exemple, on peut prouver qu’elles sont convenues
verbalement que l’6crit qu’elles r6digeaient ne les lierait que si une certaine con-
dition s’accomplissait; ou bien qu’un billet a R6 endoss6 pour un objet particulier,
et i condition que 1’endossement ne vaudrait que si une certaine condition 6tait
accomplie.”
In Hynan Ltd. v. Jones Bros.45 defendant had written plaintiff a letter
dated February 23rd in which he quoted a price for fixtures in a cigar store
and which contained a guarantee that the fixtures would be set up by the
27th of April. An order was signed on behalf of plaintiff on February 24th.
A condition in fine print stipulated that “It is agreed that delivery shall be
made as soon as possible, but that delivery at any specified date is waived.”
Mr. Justice Guerin rendered judgment on behalf of the majority of the
court and stated at page 281:
“A contract may be evidenced and established through the medium of several
writings, as well as by one document, and the import of a written paper purporting
to contain the terms of a contract may be controlled, altered or extended by a
contemporaneous agreement in writing, provided that it be shown that both papers
refer to the same subject matter, persons and things.
“If a written document amounts to a mere admission or acknowledgement of
certain facts forming a link only in the chain of evidence by which a contract is
43Forest v. Galbraitl (1919), 26 R.L.n.s. 235. See also Dorval Equipment Co. Ltd.
v. Franki Pressed Pile Co., [1953] Q.B. 787.
440p. cit., p. 250.
45(1916), 51 S.C. 279.
No. 1]
TESTIMONY AND WRITINGS
sought to be established, it may be given concurrently with, and be aided and sup-
ported by other evidence, even by oral evidence, when the contract is not required
by law to be in writing.”
The principle was also upheld in Lachance v. Petit.48 In another case4 7 a
minor signed a contract with a company by which the latter agreed to provide
correspondence courses in accountancy. The minor contended that his consent
was given under the clear and positive understanding that he would take the
course only if he secured a better position through the company’s interven-
tion. It was held that such understanding constitutes a separate agreement which
can be proved by verbal testimony if the evidence of the agent contains
sufficient admissions to constitute a commencement of proof in writing.
(e) Proving error, fraud, violence or fear as a cause of nullity. In this
case the suggestion is made that it is not a contradiction of a valid written
instrument to show that what purports to be so is void for want or valid
consent.48 Error, fraud, violence and fear as causes of nullity in contracts
may be proved by testimony under art. 1233(5) C.C. which is as follows:
“Proof may be made by testimony:…
(5) In cases of obligations arising from quasi-contracts, offences and quasi-
offences and all other cases in which the party claiming could not procure proof
in writing.”
Langelier 49 is of the opinion that:
“592. Ce n’est pas contredire ou modifier un 6crit, que de prouver que la conven-
tion qu’il constate est le r~sultat de la fraude, de ]a violence, de l’erreur, ou qu’elle
est contraire i la loi, ou que cet icrit lui-m~me a 6t6 fabriquE ou contrefait, ou
alt~rV
.”
In Schwersenski v. Vineberg50 Taschereau J. says:
“According to the case of Aetna Life v. Brodie, and in this court it is settled
law that the evidence now objected to here by the appellant was perfectly legal
and rightly admitted, and that in commercial matters parol evidence can be adduced
to prove error in a written instrument. How far this rule as to proof of error in
writing can be extended to non commercial matters, as falling within the cases in
which the party claiming could not procure proof in writing, we have not here to
consider.”
The Court of Review in Church v. Laframboise5′ allowed
testimony to
prove that plaintiff had been led into error by the false representations of
defendant. The court said that error, like violence and fraud, is always sus-
ceptible of proof by testimony. In an earlier case52 the’Court had upheld very
much the same view:
46(1917), 53 S.C. 368.
47(1934), 73 S.C. 97.
48Cf. Arts 991 to 1000 C.C.
490p. cit., p. 250.
50(1891), 19 S.C.R. 243.
51(1916), 50 S.C. 385.
52(1907), 32 S.C. 500 at p. 502.
12
McGILL LAW JOURNAL
[Vol. 4
“If est vrai que l’article 1234″emp8che la preuve testimoniale pour contredire ou
changer les termes d’un 6crit valablement fait; mais cet article n’emp~che pas ]a
preuve sous l’opration de I’article 1233 des faits de fraude ou d’erreur qui peuvent
t6 valablernent fait, et il est 6vident que la
emp~cher un contrat 6crit d’avoir
fraude et 1’erreur ne peuvent Etre prouv~es autrement que par t~moin.”
It is hoped that the above will be of assistance in considering the admission
of testimony with respect to writings.
