Jones and Jones v. Young, (1977) 18 N.B.R.(2d) 611 (QB)

• Judge: Richard, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 26, 1977
• Jurisdiction: New Brunswick
• Citations: (1977), 18 N.B.R.(2d) 611 (QB)

Jones v. Young (1977), 18 N.B.R.(2d) 611 (QB);

    18 R.N.-B.(2e) 611; 26 A.P.R. 611

MLB headnote and full text

Sommaire et texte intégral

Jones and Jones v. Young

Indexed As: Jones and Jones v. Young

Répertorié: Jones and Jones v. Young

New Brunswick Court of Queen's Bench

Richard, J.

August 26, 1977.

Summary:

Résumé:

This case arose out of the plaintiffs' claim against the defendant for damages for repudiation of an agreement for the sale of land. The defendant agreed to purchase a house and land "subject to approval of water test and septic tank". The defendant and his wife took possession before closing and discovered that the septic field was inadequate. The system was easily made adequate upon the expenditure of a day's work and $590.00. The defendant repudiated the agreement for sale, because the septic system was inadequate. The plaintiff retook possession, resold the property and brought an action against the defendant for damages.

The New Brunswick Court of Queen's Bench, allowed the plaintiffs' action. The New Brunswick Court of Queen's Bench held that the provision in the agreement respecting the septic system was a warranty and not a condition, entitling the buyer to damages but not to rescission.

Sale of Land - Topic 946

The contract - Conditions and warranties - What constitutes a warranty - An agreement for the sale of a house and 3 acres of land contained a provision which stated "subject to approval of water test and septic tank" - After the buyer took possession it was discovered that the septic system was inadequate - The system was easily made adequate upon the expenditure of a day's work and $590.00 - The buyer repudiated the agreement for sale, because the septic system was inadequate - The New Brunswick Court of Queen's Bench. held that the provision respecting the septic system was a warranty and not a condition, entitling the buyer to damages but not rescission - See paragraphs 3 to 7, 14 to 16.

Sale of Land - Topic 1115

The contract - Parties - Husband and wife - Agency - One spouse acting for the other - A husband and wife together negotiated the purchase of a house, but only the husband signed the agreement for sale - The New Brunswick Court of Queen's Bench, held that in the circumstances the husband had his wife's authority to sign the agreement on her behalf - See paragraphs 7 to 13.

Sale of Land - Topic 1354

The contract - Necessity for writing - Part performance in lieu of writing - Taking possession - The New Brunswick Court of Queen's Bench, stated that taking of possession under an agreement for the sale of a house constitutes part performance - See paragraphs 11 to 13.

Sale of Land - Topic 6244

Completion - Seller's duties - Tender of title documents - Waiver of - By buyer - Repudiation by buyer - The New Brunswick Court of Queen's Bench, held that the seller need not tender a deed to the buyer, where the buyer has repudiated the agreement for sale - See paragraph 6.

Cases Noticed:

George Biro Real Estate Limited et al. v. Shelton, 46 D.L.R.(2d) 610, dist. [para. 10].

Ward v. Coffin (1972), 4 N.B.R.(2d) 481, folld. [para. 11].

Sammut v. Pageot and Pageot, [1976] 5 W.W.R. 401 (Alta. C.A.), consd. [para. 13].

Warron General Contracting Limited v. Robichaud (1973), 6 N.B.R.(2d) 821, appld. [para. 15].

Authors and Works Noticed:

Chitty on Contracts (21st Ed.), vol. 1, p. 246, para. 444 [para. 14].

Halsbury's Laws of England (3rd Ed.), vol. 36, p. 295 [para. 12].

Counsel:

Leonard C. Jones, for the plaintiffs;

Peter F. Blair, for the defendant.

This case was heard at Moncton, N. B., before RICHARD, J., of the New Brunswick Supreme Court, Queen's Bench Division.

On August 26, 1977, RICHARD, J., delivered the following judgment: