Mann v. Kotch, (1981) 10 Man.R.(2d) 373 (CoCt)

• Court: Provincial Court of Manitoba (Canada)
• Case Date: May 26, 1981
• Jurisdiction: Manitoba
• Citations: (1981), 10 Man.R.(2d) 373 (CoCt)

Mann v. Kotch (1981), 10 Man.R.(2d) 373 (CoCt)

MLB headnote and full text

Mann v. Kotch

Indexed As: Mann v. Kotch

Manitoba County Court

Philp, C.C.J.

May 26, 1981.

Summary:

A contractor claimed for monies owing for labour and materials. The small claims court allowed the action. The defendant appealed.

The Manitoba County Court reduced the contractor's recovery.

Practice - Topic 632

Parties - Adding or substituting parties - Necessary parties - Joint contractors - The Manitoba County Court referred to the principle of law that where liability under a contract is joint, all co-contractors should be joined as defendants - See paragraph 5.

Practice - Topic 632

Parties - Adding or substituting parties - Necessary parties - Joint contractors - Exceptions - Although the general rule of law states that where liability under a contract is joint, all co-contractors should be joined as defendants, the Manitoba County Court held that where one party enters a contract both personally and as the agent for others, the plaintiff may sue the contracting party only - See paragraph 5.

Practice - Topic 5277

Trial - General - Stay of proceedings - When available - The Manitoba County Court held that where a joint debtor, who was not the contracting party, was sued, he should have applied for a stay of proceedings until his co-contractors were joined as defendants - See paragraph 6.

Contracts - Topic 552

Parties - Joint and several liability - Joinder of parties - A joint debtor, who was not the contracting party, was sued - He failed to apply for a stay of proceedings until his co-contractors could be joined as defendants - The Manitoba County Court held that judgment could be given against the joint debtor alone - See paragraph 6.

Contracts - Topic 543

Parties - Joint and several liability - Joint liability - The party who was sued was not the contracting party - The Manitoba County Court found that a joint liability existed where the dependant's daughter contracted personally and as the agent for the defendant and one other - See paragraphs 3 to 4.

Contracts - Topic 548

Parties - Joint and several liability - Effect of judgment against one of parties jointly or severally liable - The Manitoba County Court held that when a creditor recovers a judgment against one of several joint debtors, he may not take further proceedings against any of the other joint debtors, even though the judgment remains unsatisfied - See paragraph 6.

Cases Noticed:

Toronto and Hamilton Navigation Company v. Silcox (1888), 12 P.R. 622, refd to. [para. 5].

Authors and Works Noticed:

Chitty on Contracts (24th Ed.), para. 1073 [para. 6].

Treitel, The Law of Contract (4th Ed.), pp. 405 to 406 [para. 6].

Counsel:

A.L.V. Stewart, for the respondent;

J.E. Crane, for the appellant.

This appeal was heard before PHILP, C.C.C.J., of the Manitoba County Court. The decision of PHILP, C.C.C.J., was delivered on May 26, 1981: