Delving into case law nearly 300 years old, Mr. Justice Douglas McDermid of the Ontario Superior Court has held, on March 15, 2000, in favour of Mrs. Jean Wietzner, a widow whose husband had stashed away almost $130,000 in mildewy $50 and $100 bills in their former Stratford, Ont. property.
In a case that had all the makings of a law-school property exam, the money had been uncovered following excavations by the purchaser of the property, Mr. Wilbert Herman, and Mr. Antonius Ganselves, the contractor Herman hired to excavate the property. Herman, whom Justice McDermid described in his judgement as “acquisitive, shrewd”, and “calculating”, and Ganselves felt that the adage “finders keepers, losers weepers” was as good as law for their purposes when they uncovered the cash. Before the Court, Herman laid claim to the money on the basis of the property being sold to him “as is”, whereas Ganselves felt he had title to the cash on the basis of “salvage rights” due him for any property found during his contract.
Counsel to Mrs. Weitzner, the widow, however, managed to convince the Court that the money rightfully belonged to her. In doing so, the Court’s attention was drawn to an ancient body of case law, including the 1722 decision in Armory v. Delamirie, where it was held that “the finder of a chattel acquires a good title to it as against all but the true owner, or one enjoying a superior title”. Significant evidence was able to be adduced that the cash, which had been stored in an empty fire-extinguisher, did in fact belong to Mrs. Weitzner’s husband, who, ironically, had died tragically in a fire before having a chance to tell his wife of the existence of the money.
Herman’s actions in dealing with the money did not appear to help his cause. When Weitzner told them that she had heard a rumour that $12,000 had been found in the property, Herman and his wife sought to draw up a contract with the 89-year old widow giving her $4,000 “in full payment” for any money found “in or around the house”.
Herman went on to claim before the court that Ganselves had pocketed $32,000 himself, however this claim was also rejected. The Court’s final order was that Herman repay the full $130,000 to Mrs. Weitzner.
Connie Reeve, of Blake, Cassels & Graydon LLP represented Mrs. Weitzner. Mark T. Nowak of Waterloo represented Mr. Herman and his wife, and C.A. Sherwin of St. Marys represented Mr. Ganselves.