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Digest of the Week — Witness or party to the contract?

2013 CarswellNS 307 |
Bank of Montreal v. Murchison |
Nova Scotia Small Claims Court |
Judgment: May 15, 2013

Contracts | Mistake | Mistake as to nature of agreement (Non est factum) | Onus of proof

Claimant entered into conditional sales contract with husband and wife to finance purchase of their motor vehicle — Both parties signed contract — Wife testified that she thought that she was simply signing as witness to husband's signature, that she was not told that she was signing as co-buyer, nor was she told that she was signing as co-signor to guarantee husband's liability as purchaser — Defendants defaulted on payments — Claimant brought action against husband and wife — Action against wife dismissed — Defence of non est factum was made out — Circumstances surrounding execution of contract must be taken into account such as, wife could not drive, she had no license, she did not take any title to vehicle — With respect to contract, assuming that tiny font could have been read, one was left to wonder how claimant could believe that consumer signing it would have understood it, at least in absence of explanation from someone who knows and understands document — Problem with such documents was highlighted by fact that salesman who asked wife to sign contract knew that wife was being asked to co-sign, in effect, as guarantor, and he ought to have told wife that.
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