Kerr v. Royal Lepage Real Estate Services Ltd., (1991) 4 B.C.A.C. 54 (CA)

• Judge: Taggart, Hutcheon and Taylor, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 13, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 4 B.C.A.C. 54 (CA)

Kerr v. Royal LePage (1991), 4 B.C.A.C. 54 (CA);

    9 W.A.C. 54.

MLB headnote and full text

James Herbert Sidney Kerr (plaintiff/appellant) v. Royal Lepage Real Estate Services Ltd., Barbara Pauline Young, Edward Grant Sahaydak, and Melody Ann Williams (defendants/respondents)

(CA011955)

Indexed As: Kerr v. Royal Lepage Real Estate Services Ltd.

British Columbia Court of Appeal

Taggart, Hutcheon and Taylor, JJ.A.

September 18, 1991.

Summary:

A mortgagee foreclosed on real estate and invited offers. Kerr and Williams submitted offers. The mortgagee then told Kerr and Williams that he would receive final offers from both Kerr and Williams and that the final offers could not be changed in any way before they were submitted for court approval. Kerr's offer was the highest. However, Williams learned from the mortgagee the amount of Kerr's offer and submitted a higher offer to the court that was accepted. Kerr sued for damages for breach of contract.

The British Columbia Supreme Court dismissed Kerr's action. Kerr appealed.

The British Columbia Court of Appeal dismissed the appeal.

Contracts - Topic 1452

Formation of contract - Agreements that are not contracts - Acquiescence - Kerr and Williams submitted offers to a mortgagee for real estate that was the subject of foreclosure proceedings - The mortgagee told Kerr and Williams to submit final offers that could not be changed before they were submitted for court approval - However Williams learned from the mortgagee that Kerr's offer was the highest - Williams then submitted a higher offer to the court that was accepted - Kerr sued Williams for breach of contract - The British Columbia Court of Appeal affirmed a dismissal of the action - The court stated that the mere acquiescence by the parties to the procedure suggested by the mortgagee did not constitute an intention to contract - See paragraph 41.

Cases Noticed:

Galton v. Emuss (1844), 1 Coll. 243 (Ch.); 63 E.R. 402, refd to. [para. 25].

Carew's Estate, Re (1858), 26 Beav. 187 (Ch.); 53 E.R. 869, refd to. [para. 25].

Campion v. Brackenbridge (1881), 28 Gr. 201, refd to. [para. 25].

Irving v. McWilliams (1895), 1 N.B. Eq. 217 (N.B.), refd to. [para. 25].

Canadian Pacific R.W. Co. v. Grand Trunk R.W. Co. (1907), 14 O.L.R. 41 (Ont. C.A.), affd. 39 S.C.R. 220, refd to. [para. 25].

Harrop v. Thompson, [1975] 2 All E.R. 94 (Ch.), refd to. [para. 25].

Counsel:

John Douglas Shields, for the appellant;

   Gregory C. Blanchard, for the respondents Royal Lepage, Young and Sahaydak;

Mark P. Griffiths, for the respondent Melody Ann Williams.

This appeal was heard by Taggart, Hutcheon and Taylor, JJ.A., of the British Columbia Court of Appeal at Vancouver, B.C., on June 13, 1991. The decision of the court was delivered by Taggart, J.A., on September 18, 1991.