Bossé v. Bossé et al., (1999) 222 N.B.R.(2d) 192 (CA)

• Judge: Ayles, Drapeau and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 29, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 222 N.B.R.(2d) 192 (CA)

Bossé v. Bossé (1999), 222 N.B.R.(2d) 192 (CA);

    222 R.N.-B.(2e) 192; 570 A.P.R. 192

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] N.B.R.(2d) TBEd. NO.064

Réal P. Bossé and R.P.B. Construction ltée (plaintiffs/appellants) v. Benoît Bossé and Les Immeubles Robo ltée (defendants/respondents)

(60/99/CA)

Indexed As: Bossé v. Bossé et al.

New Brunswick Court of Appeal

Ayles, Drapeau and Larlee, JJ.A.

November 22, 1999.

Summary:

Réal Bossé sued his brother, Benoît Bossé, for the balance owing on a promissory note. Benoît, by way of counterclaim, sought damages for failure to exercise an option to purchase land.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 211 N.B.R.(2d) 336; 539 A.P.R. 336, dismissed the action and counterclaim. Réal appealed. Benoît acknowledged that the appeal should be allowed and that judgment be allowed to Réal in the amount of $9,000. However, Benoît cross-appealed. The court only had to determine the amount of interest to be paid and the cross-appeal.

The New Brunswick Court of Appeal awarded judgment to Réal in the amount of $9,000, plus interest, at the annual rate of 10% as from July 1, 1990 to the date of the judgment. The court dismissed the cross-appeal.

Contracts - Topic 3860

Performance or breach - Time for performance - Option - R.P.B. gave Robo an option to purchase land - The option was valid for five years and provided that Robo was to pay $300 annually to R.P.B. to maintain the purchase rights - The option also provided that time was of the essence of the agreement - Robo failed to pay the $300 - R.P.B. advised Robo that the option to purchase was void as the term had not been observed - Robo requested specific performance of the option to purchase or damages - In determining the question, the trial judge found that the annual payment was not a fundamental term - The New Brunswick Court of Appeal held that the trial judge had erred - The parties had unambiguously stated their intent that the $300 annual payments were deemed essential to the validity of the option - Robo lost his right to purchase - See paragraphs 6 and 7.

Negotiable Instruments - Topic 8406

Promissory notes - Liability of parties - Makers - Réal wanted to buy a parcel of land - Since he was in the midst of divorce proceedings, his brother Benoît bought the land to avoid complications - The title was transferred to Réal's corporation - Benoît was given an option to buy land owned by Réal's corporation - Benoît gave Réal a promissory note - Later on, Réal argued that the option to purchase was null and void - Benoît refused to pay the balance due on the note - Réal sued Benoît for the balance - The trial judge dismissed the action - All the transactions were part of the initial agreement - Since Réal refused to exercise the option, Benoît was entitled to consider the agreement terminated and be discharged of his obligations under the note - The New Brunswick Court of Appeal allowed an appeal and granted judgment to Réal by consent of the parties.

Sale of Land - Topic 1721

The contract - Offer and acceptance - Options - General - [See Contracts - Topic 3860 ].

Cases Noticed:

Acadia Marble, Tile & Terrazzo Ltd. v. Oromocto Property Developments Ltd. (1998), 205 N.B.R.(2d) 358; 523 A.P.R. 358 (C.A.), refd to. [par. 5].

Sail Labrador Ltd. v. Ship Challenge One - see Sail Labrador Ltd. v. Navimar Corp. et al.

Sail Labrador Ltd. v. Navimar Corp. et al., [1999] 1 S.C.R. 265; 235 N.R. 201, refd to. [par. 6].

Dabrowski Estate v. York Structural Steel Ltd. et al. (1995), 161 N.B.R.(2d) 305; 414 A.P.R. 305 (C.A.), refd to. [par. 8].

Counsel:

Jean-Paul Ouellette, for the appellants;

John Douglas Hazen, for the respondents.

This appeal was heard on September 29, 1999 by Ayles, Drapeau and Larlee, JJ.A. of the New Brunswick Court of Appeal. Larlee, J.A., delivered the following decision on November 22, 1999.