Dresser Industries Inc. v. Raven Muds Ltd., (1976) 1 A.R. 616 (CA)

JudgeClement, Moir and Morrow, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateOctober 13, 1976
Citations(1976), 1 A.R. 616 (CA)

Dresser Ind. Inc. v. Raven Muds Ltd. (1976), 1 A.R. 616 (CA)

MLB headnote and full text

Dresser Industries Inc. v. Raven Muds Ltd.

Indexed As: Dresser Industries Inc. v. Raven Muds Ltd.

Alberta Supreme Court

Appellate Division

Clement, Moir and Morrow, JJ.A.

October 13, 1976.

Summary:

This case arose out of the plaintiff's claim for an amount owing from the defendant. The defendant acted as the plaintiff's wholesale distributor for its products in Canada. The parties did not have a formal agreement. The defendant told the plaintiff that its large account owing to the plaintiff would not be paid unless a formal agreement was signed. The plaintiff immediately ceased sending goods to the defendant. A month later the plaintiff telegraphed the defendant and informed it that its orders would no longer be accepted, because the plaintiff intended to sell directly to retailers in Canada. The telegram did not mention the defendant's repudiation and in fact denied any contract had existed. The plaintiff brought an action against the defendant to collect the balance owing by the defendant. The defendant counterclaimed for damages for breach of contract. At trial the plaintiff's claim was admitted. The Trial Division allowed the defendant's counterclaim and found that the plaintiff was in breach of the contract to supply the defendant and awarded the defendant damages. The plaintiff appealed from the finding of breach on its part and the defendant cross-appealed for increased damages.

The Appellate Division allowed the plaintiff's appeal and dismissed the cross-appeal. The Appellate Division held that the defendant repudiated the contract by the refusal to pay unless a formal agreement was signed - see paragraphs 34 to 37. The Appellate Division held that the plaintiff's actions constituted acceptance of the repudiation and that the plaintiff was not in breach of the agreement in refusing to supply the defendant - see paragraphs 38 to 44.

Clement, J.A., dissenting, in the Appellate Division, was of the opinion that the plaintiff had not accepted the repudiation of the defendant in time and that the telegram by its terms did not constitute acceptance of repudiation in any event - see paragraphs 1 to 17.

Contracts - Topic 3664

Performance or breach - Breach - Repudiation - What constitutes repudiation - The defendant acted as the plaintiff's wholesale distributor for its products in Canada - The parties did not have a formal agreement - The defendant told the plaintiff that its large account owing to the plaintiff would not be paid unless a formal agreement was signed - The Alberta Court of Appeal held that the statement by the defendant constituted repudiation of the agreement between the parties and the plaintiff was justified in accepting the repudiation and refusing to supply goods to the defendant - See paragraphs 34 to 37.

Contracts - Topic 3666

Performance or breach - Breach - Repudiation - Acceptance of repudiation - What constitutes acceptance - The defendant acted as the plaintiff's wholesale distributor for its products in Canada - The parties did not have a formal agreement - The defendant told the plaintiff that its large account owing to the plaintiff would not be paid unless a formal agreement was signed - The plaintiff immediately ceased sending goods to the defendant - A month later the plaintiff telegraphed the defendant and informed it that its orders would no longer be accepted, because the plaintiff intended to sell directly to retailers in Canada - The telegram did not mention the defendant's repudiation and in fact denied any contract had existed - The Appellate Division held that the defendant repudiated the contract - The Alberta Court of Appeal held that the plaintiff's actions constituted acceptance of the repudiation and that the plaintiff was not in breach of the agreement in refusing to supply the defendant - See paragraphs 38 to 44.

Cases Noticed:

Suisse Atlantique Societe v. N.V. Rotterdamsche, [1967] A.C. 361, refd to. [para. 2].

Denmark Productions Ltd. v. Boscobel Productions Ltd., [1969] 1 Q.B. 699, refd to. [para. 4].

Decro-Wall International SA v. Practitioners in Marketing Ltd., [1971] 2 All E.R. 216, appld. [para. 35].

Heyman v. Dorwins Ltd., [1942] A.C. 336, appld. [para. 35].

Withers v. Reynolds, 2 B. & Ap. 882; 109 E.R. 1370, appld. [para. 35].

Hockester v. De La Tour, 2 El. & Bl. 679; 118 E.R. 922, appld. [para. 38].

Marsden v. Sawbell (1880), 43 L.T. 120, appld. [para. 38].

Pigott Construction Co. Ltd. v. W.J. Crowe Ltd. (1961), 21 D.L.R.(2d) 258, appld. [para. 38].

Canada Egg Products Ltd. v. Canadian Doughnut Co. Ltd., [1955] S.C.R. 398, appld. [para. 38].

Cromwell v. Morris, [1917] 2 W.W.R. 377, appld. [para. 38].

Guy-Pell v. Foster, [1930] 2 Ch. 169, appld. [para. 38].

The Mihalis Augetos, [1971] 1 Q.B. 164, appld. [para. 47].

Van Wezel v. Risdon (1952), 7 W.W.R. (N.S.) 646, appld. [para. 47].

Authors and Works Noticed:

Cheshire and Fifoot, The Law of Contracts (8th Ed.), pp. 564 [para. 37]; 571 [paras. 4, 5]; 573 [para. 5].

Chitty on Contracts (23rd Ed.), vol. 1, p. 632 [para. 35]; para. 1333 [para. 3].

Counsel:

R.B. Low, for the appellant;

E.D.D. Tavender, for the respondent.

This case was heard before CLEMENT, MOIR and MORROW, JJ.A., of the Alberta Supreme Court, Appellate Division.

On October 13, 1976, the judgment of the Appellate Division was delivered at Calgary, Alberta, and the following opinions were filed:

CLEMENT, J.A. [dissenting] - see paragraphs 1 to 17.

MORROW, J.A. - see paragraphs 18 to 50.

MOIR, J.A., concurred with MORROW, J.A.

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8 practice notes
  • Anticipatory Repudiation
    • Canada
    • Irwin Books The Law of Contracts. Third Edition Performance and Breach
    • 4 Agosto 2020
    ...Rev 233 at 253–56. 30 See Allen v Robles , [1969] 3 All ER 154 (CA) [ Allen v Robles ]. See also Dresser Industries Inc v Raven Muds Ltd (1976), 1 AR 616 at 637 (SCAD), Morrow JA; and see Scarf v Jardine (1882), 7 App Cas 345 at 360, Lord Blackburn. 31 McCowan v McKay (1901), 13 Man R 590 (......
  • 1400467 Alberta Ltd. et al. v. Adderley et al., (2014) 591 A.R. 40 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 3 Julio 2014
    ...5]. Farley v. Alberta Hospital Association (1985), 60 A.R. 138 (Master), refd to. [para. 5]. Dresser Industries Inc. v. Raven Muds Ltd. (1976), 1 A.R. 616; 1976 CarswellAlta 192 (C.A.), refd to. [para. Fairways Project Ltd. v. Melander (2011), 520 A.R. 217; 2011 ABQB 6, refd to. [para. 5]. ......
  • 956126 Alberta Ltd v JMS Alberta Co Ltd,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 19 Noviembre 2020
    ...Ltd v Pigott Construction Co, [1961] OR 305, 1961 CanLII 23 (Ont CA), aff’d [1963] SCR 238; Dresser Industries, Inc v Raven Muds Ltd (1976), 1 AR 616, 1976 ALTASCAD 229 at para 24; Canada Egg Products Ltd v Canadian Doughnut Co Ltd, [1955] SCR 398 at 413, 1955 CanLII 90; Bridgesoft Systems ......
  • Bernard v. Yurich, (1987) 81 A.R. 1 (QBM)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 3 Junio 1987
    ...32]. Harding v. Thomson (1982), 39 A.R. 361; 137 D.L.R.(3d) 715 (C.A.), refd to. [para. 37]. Dresser Industries v. Raven Muds Ltd. (1976), 1 A.R. 616, refd to. [para. Clarkson Booker Ltd. v. Andjel, [1964] 2 Q.B. 775 (C.A.), refd to. [para. 40]. Ed Flak Construction v. Crow-Crest Industries......
  • Request a trial to view additional results
7 cases
  • 1400467 Alberta Ltd. et al. v. Adderley et al., (2014) 591 A.R. 40 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 3 Julio 2014
    ...5]. Farley v. Alberta Hospital Association (1985), 60 A.R. 138 (Master), refd to. [para. 5]. Dresser Industries Inc. v. Raven Muds Ltd. (1976), 1 A.R. 616; 1976 CarswellAlta 192 (C.A.), refd to. [para. Fairways Project Ltd. v. Melander (2011), 520 A.R. 217; 2011 ABQB 6, refd to. [para. 5]. ......
  • 956126 Alberta Ltd v JMS Alberta Co Ltd,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 19 Noviembre 2020
    ...Ltd v Pigott Construction Co, [1961] OR 305, 1961 CanLII 23 (Ont CA), aff’d [1963] SCR 238; Dresser Industries, Inc v Raven Muds Ltd (1976), 1 AR 616, 1976 ALTASCAD 229 at para 24; Canada Egg Products Ltd v Canadian Doughnut Co Ltd, [1955] SCR 398 at 413, 1955 CanLII 90; Bridgesoft Systems ......
  • Bernard v. Yurich, (1987) 81 A.R. 1 (QBM)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 3 Junio 1987
    ...32]. Harding v. Thomson (1982), 39 A.R. 361; 137 D.L.R.(3d) 715 (C.A.), refd to. [para. 37]. Dresser Industries v. Raven Muds Ltd. (1976), 1 A.R. 616, refd to. [para. Clarkson Booker Ltd. v. Andjel, [1964] 2 Q.B. 775 (C.A.), refd to. [para. 40]. Ed Flak Construction v. Crow-Crest Industries......
  • Junction Engineering Ltd. v. Gunner Industries Ltd., [1997] A.R. Uned. 389 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 24 Junio 1997
    ...question is whether Gunner accepted that repudiation within a reasonable time. [23] In Dresser Industries Inc. v. Raven Muds Ltd. (1977) 1 A.R. 616 , Morrow J.A. says at p 637: "It therefore becomes a question of whether the other party accepts the repudiation or waits. For a discussio......
  • Request a trial to view additional results
1 books & journal articles
  • Anticipatory Repudiation
    • Canada
    • Irwin Books The Law of Contracts. Third Edition Performance and Breach
    • 4 Agosto 2020
    ...Rev 233 at 253–56. 30 See Allen v Robles , [1969] 3 All ER 154 (CA) [ Allen v Robles ]. See also Dresser Industries Inc v Raven Muds Ltd (1976), 1 AR 616 at 637 (SCAD), Morrow JA; and see Scarf v Jardine (1882), 7 App Cas 345 at 360, Lord Blackburn. 31 McCowan v McKay (1901), 13 Man R 590 (......

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