Goulet & Sons Ltd. v. Lalonde, (1983) 23 Man.R.(2d) 166 (CA)

• Judge: Monnin, C.J.M., Matas and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 06, 1983
• Jurisdiction: Manitoba
• Citations: (1983), 23 Man.R.(2d) 166 (CA)

Goulet & Sons Ltd. v. Lalonde (1983), 23 Man.R.(2d) 166 (CA)

MLB headnote and full text

Goulet & Sons Ltd. v. Lalonde

(Suit No. 345/82)

Indexed As: Goulet & Sons Ltd. v. Lalonde

Manitoba Court of Appeal

Monnin, C.J.M., Matas and Huband, JJ.A.

August 4, 1983.

Summary:

The defendant buyer repudiated an agreement of purchase and sale. The agreement provided that the seller had the option of cancelling the contract and retaining the deposit, or seeking other remedies at law. The seller sued the buyer for a declaration that the contract was binding, specific performance, interest and general damages. He later amended the pleadings to include a claim for damages as an alternative to specific performance.

The Manitoba Court of Queen's Bench held that the seller had cancelled the agreement by selling the property to another before trial and was entitled only to retain the deposit as damages. See paragraphs 35 to 48. The seller appealed. The buyer cross-appealed.

The Manitoba Court of Appeal dismissed both the appeal and cross-appeal. Monnin, C.J.M., dissenting in part, would have allowed the appeal but concurred in dismissing the cross-appeal.

Sale of Land - Topic 3443

Contract - Repudiation by buyer - Election of remedies of seller - A purchaser repudiated an agreement of purchase and sale - The agreement provided that upon repudiation by the purchaser, the vendor had the option of cancelling the contract and retaining the deposit, or seeking other legal remedies - The vendor sued for a declaration affirming the contract, specific performance, interest and general damages - Before trial, the seller sold the property for $4,000.00 less than the previously agreed price - The Manitoba Court of Appeal held that the new sale cancelled the agreement, making retention of the deposit the vendor's only remedy - See paragraphs 5 to 12.

Sale of Land - Topic 7675

Remedies of vendor - Damages - Where contract repudiated by buyer - A buyer made a $2,000.00 deposit but repudiated the agreement of purchase and sale - The seller sold the land to another and sued the buyer for, inter alia, specific performance and damages - Later the seller amended the claim to claim damages in the alternative - The agreement gave the seller the option of cancelling the sale and keeping the deposit, or pursuing other remedies - The Manitoba Court of Appeal held that the seller, by his actions, cancelled the agreement under the option and was not entitled to further damages apart from the deposit - See paragraphs 5 to 12.

Sale of Land - Topic 7741

Remedies of vendor - Forfeiture of deposit - General - A clause in an agreement of purchase and sale provided that upon repudiation by the purchaser, the vendor could cancel the agreement "whereupon the ($2,000.00) deposit shall be forfeited to him" - The Manitoba Court of Appeal held that the failure to include the phrase "as liquidated damages" did not affect the validity of the clause - The court stated that even if the deposit was regarded as a penalty, the vendor could still be entitled to it, because the amount was not excessive - See paragraphs 13 to 14.

Cases Noticed:

Dobson v. Winton & Robbins Ltd., [1959] S.C.R. 775; 20 D.L.R.(2d) 164, consd. [paras. 3, 45].

Gisvold v. Hill (1963), 41 W.W.R.(N.S.) 549 (B.C.S.C.), consd. [paras. 9, 45].

Dorge v. Dumesnil et al. (1973), 39 D.L.R.(3d) 750 (Man. Q.B.), refd to. [para. 45].

Love v. Robinson, [1981] 4 W.W.R. 517; 12 Sask.R. 181 (Sask. D.C.), refd to. [para. 45].

Lozcal Holdings Ltd. v. Brassos Developments Ltd. (1980), 22 A.R. 131; 111 D.L.R.(3d) 598 (A.C.A.), refd to. [para. 45].

Counsel:

L.V. Teillet, for the appellant;

E. Lindgren, for the respondent.

This appeal was heard before Monnin, C.J.M., Matas and Huband, JJ.A., of the Manitoba Court of Appeal, on May 6, 1983. The decision of the Court of Appeal was delivered on August 4, 1983, when the following opinions were filed:

Huband, J.A. - See paragraphs 1 to 16;

Monnin, C.J.M., dissenting in part - See paragraphs 17 to 34.

Matas, J.A., concurred with Huband, J.A.