Love and Love v. Robinson and Robinson, (1981) 12 Sask.R. 181 (DC)

• Judge: Batten, J.
• Case Date: April 21, 1981
• Jurisdiction: Saskatchewan
• Citations: (1981), 12 Sask.R. 181 (DC)

Love v. Robinson (1981), 12 Sask.R. 181 (DC)

MLB headnote and full text

Love and Love v. Robinson and Robinson

(D.C. No. 61)

Indexed As: Love and Love v. Robinson and Robinson

Saskatchewan District Court

Judicial Centre of Saskatoon

Batten, J.

April 21, 1981.

Summary:

The plaintiffs brought an action for the return of money paid to the defendants as part of the purchase price of land and a residence owned by the defendants. The plaintiffs repudiated the agreement. The defendant accepted the repudiation, retaining the plaintiff's deposit and part of the purchase price. The defendants counterclaimed for damages resulting from the plaintiff's repudiation.

The Saskatchewan District Court allowed the plaintiff's claim for return of the money paid as part of the purchase price and dismissed the defendant's claim for damages, holding that the deposit, which was liquidated damages, was all the defendant was entitled to.

Sale of Land - Topic 6029

Completion - Conditions precedent - What constitutes - The plaintiffs agreed to buy the defendants' land - Under the agreement, the defendants were obligated to do landscaping - The Saskatchewan District Court defined the term condition precedent and held that the defendants' obligation to landscape was not a condition precedent - See paragraphs 1 to 13.

Sale of Land - Topic 3444

Contract - Repudiation - By buyer - When available - Fundamental breach - The plaintiff agreed to buy the defendants' land for $62,000.00 - The defendant failed to do landscaping, valued at $400.00, as agreed in the offer to purchase, so the plaintiff repudiated the agreement - The Saskatchewan District Court held that the defendants' failure to landscape was not a fundamental breach entitling the plaintiff to repudiate the agreement - See paragraphs 1 to 14.

Sale of Land - Topic 3443

Contract - Repudiation - By buyer - Election of remedies of seller - The Saskatchewan District Court discussed the remedies available to a seller in a situation where a purchaser repudiates the purchase-sale agreement without cause and there exists a deposit which can be either liquidated damages or a penalty - See paragraphs 21 to 43.

Sale of Land - Topic 7675

Remedies of vendor - Damages - Where contract repudiated by buyer - A buyer made a $1,000.00 deposit (liquidated damages) under an agreement to buy land - The buyer repudiated the agreement without cause - The seller accepted the repudiation and retained the $1,000.00 deposit - In an action by the buyer, the seller counterclaimed for damages caused by the buyer's repudiation - The Saskatchewan District Court held that the seller, by accepting the buyer's repudiation and retaining the $1,000.00 deposit (liquidated damages), was not entitled to further damages - See paragraphs 19 to 33.

Sale of Land - Topic 7747

Remedies of vendor - Forfeiture of deposit - Whether deposit constituted a genuine pre-estimate of damages - The plaintiff agreed to buy the defendants' land and paid a $1,000.00 deposit to guarantee performance - The Saskatchewan District Court discussed the difference between liquidated damages and penalties and held that the $1,000.00 deposit was liquidated damages or a genuine pre-estimate of damages - See paragraphs 21 to 33.

Sale of Land - Topic 8753

Remedies of purchaser - Damages - Breach of non-fundamental term - Damages only - The plaintiff agreed to buy the defendants' land for $62,000.00 - The defendant did not do landscaping, valued at $400.00, as agreed in the offer to purchase, so the plaintiff repudiated the agreement - The Saskatchewan District Court held that the defendants' failure to landscape was not a fundamental term in the contract, so the plaintiff was not entitled to repudiate, but was entitled to an action for damages - See paragraphs 1 to 14.

Cases Noticed:

Turney and Turney v. Zhilka, [1959] S.C.R. 578; 18 D.L.R.(2d) 447, appld. [para. 13].

Barnett v. Harrison, 57 D.L.R.(3d) 225, refd to. [para. 13].

McCauley v. McVey et al. (1979), 27 N.R. 604; 98 D.L.R.(3d) 577, refd to. [para. 13].

Mersey Steel and Iron Co. Ltd. v. Naylor Benzon & Co. (1884), 9 App. Cas. 434, appld. [para. 14].

Field et al. v. Zien et al., 42 D.L.R.(2d) 708, consd. [para. 14].

Freedman v. French (1921), 50 O.L.R. 432, refd to. [para. 14].

Rudd v. Balaz et al., [1940] 2 W.W.R. 107, consd. [para. 15].

Sanderson v. Morton (1923), 54 O.L.R. 479, consd. [para. 15].

Fraser v. Robinson (1952-53), 7 W.W.R.(N.S.) 378, refd to. [para. 16].

Dalziel v. Homeseekers' Land Co., 18 W.L.R. 246, consd. [para. 16].

Earle v. Munroe, [1942] 2 W.W.R. 263, consd. [para. 19].

Wells v. Woodroffe (1925-26), 29 O.W.N. 159, consd. [para. 19].

Howe v. Smith (1884), 27 Ch. D. 89, appld. [para. 24].

Dunlop Pneumatic Tyre Company Limited v. New Garage and Motor Company Limited, [1915] A.C. 79 (H.L.), consd. [para. 27].

Kemble v. Farren, 6 Bing. 141, consd. [para. 27].

Lozcal Holdings Ltd. v. Brassos Development Ltd. (1980), 22 A.R. 131; 111 D.L.R.(3d) 598; 12 Alta. L.R.(2d) 227, refd to. [para. 32].

Howe v. Smith (1884), 27 Ch. D. 89, refd to. [para. 32].

Soper v. Arnold (1889), 14 App. Cas. 429, refd to. [para. 32].

Gisvold v. Hill (1963), 41 W.W.R.(N.S.) 549; 37 D.L.R.(2d) 606, refd to. [para. 34].

Savile v. Savile, 1 P. Wms. 745; 24 E.R. 596, refd to. [para. 39].

Stockloser v. Johnson, [1954] 1 Q.B. 476, consd. [para. 42].

Statutes Noticed:

Limitation of Civil Rights Act, R.S.S. 1978, c. L-16, sect. 2(1) [para. 30].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 34, para. 543 [para. 40].

Halsbury's Laws of England (4th Ed.), vol. 12, p. 422, para. 1118 [para. 26].

DiCastri, The Canadian Law of Vendor and Purchasor (2nd Ed.), para. 362 [para. 15].

McGregor on Damages (13th Ed.), paras. 378 to 379 [para. 41].

Counsel:

M.W. Henderson, for the plaintiffs;

K.A. Stevenson, for the defendants.

This case was heard by BATTEN, J., of the Saskatchewan District Court, Judicial Centre of Saskatoon, who on April 21, 1981, delivered the following judgment.