Markland Associates Ltd. v. Lohnes, (1973) 11 N.S.R.(2d) 181 (TD)

• Judge: Gillis, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 06, 1973
• Jurisdiction: Nova Scotia
• Citations: (1973), 11 N.S.R.(2d) 181 (TD)

Markland Assoc. Ltd. v. Lohnes (1973), 11 N.S.R.(2d) 181 (TD);

    5 A.P.R. 181

MLB headnote and full text

Markland Associates Ltd. v. Lohnes

Indexed As: Markland Associates Ltd. v. Lohnes

Nova Scotia Supreme Court

Trial Division

Gillis, J.

February 28, 1973.

Summary:

This case arose out of a claim by a building contractor for $3,559.00 being the balance owing on a lump sum contract. The lump sum contract was for $8,300.00 for materials and work in connection with renovations to the defendant's 80 year old house The plaintiff did defective work and did not complete certain portions of the work - see paragraph 19. The defendant spent $2,034.00 to complete the work in accordance with the original contract. The Nova Scotia Supreme Court, Trial Division, held that there was substantial performance by the plaintiff. The Trial Division held that the defects and omissions entitled the defendant to damages and did not entitle the defendant to resist payment of the purchase price. The Trial Division held that the plaintiff was entitled to payment from the defendant of $1,524.00; being $3,559.00 less the cost of completion of $2,034.00 paid for by the defendant.

Building Contracts - Topic 579

The contract - Implied terms - Quality of materials and workmanship - In the absence of express terms, the Nova Scotia Supreme Court, Trial Division, implied a term that work and materials to be supplied should be good and workmanlike - See paragraph 17.

Building Contracts - Topic 584

The contract - Implied terms - Fitness of work and materials - In the absence of express terms, the Nova Scotia Supreme Court, Trial Division, implied a term that work and materials when completed and installed would be fit for the purposes intended - See paragraph 17.

Building Contracts - Topic 590

The contract - Implied terms - Time for completion - In the absence of express terms, the Nova Scotia Supreme Court, Trial Division, implied a term that the work should be completed in a reasonable time and without undue delay - See paragraph 17.

Building Contracts - Topic 1515

Completion - Duty to complete - Substantial performance - What constitutes substantial performance - The plaintiff builder contracted to install aluminum siding on the defendant's 80 year old house and also agreed to carry out certain renovations for a lump sum price of $8,300.00 - The builder did defective work and did not complete certain portions of the work (see paragraph 19) which defects and omissions cost the defendant $2,034.00 to complete - The Nova Scotia Supreme Court, Trial Division, held that there was substantial performance by the builder - The Trial Division held that the defects and omissions entitled the defendant to damages and did not entitle the defendant to resist payment of the purchase price.

Cases Noticed:

Laminated Structures & Holdings Limited v. Eastern Woodworkers Limited, [1962] S.C.R. 160; 46 M.P.R. 219; 32 D.L.R.(2d) 1, folld. [para. 18].

H. Dakin & Co. Ltd. v. Lee, [1916] 1 K.B. 566, folld. [para. 23].

Hoenig v. Isaacs, [1952] 2 All E.R. 176, folld. [para. 23].

Fred Pierce Ltd. et al. v. Troke (1957), 8 D.L.R.(2d) 5 (N.S.C.A.), folld. [para. 24].

Miller v. Advanced Farming Systems Ltd. (1969), 5 D.L.R.(3d) 369 (S.C.C.), folld. [para. 26].

Counsel:

J.S. Cowan, for the plaintiff;

D.R. Ritcey, for the defendant.

This case was heard by GILLIS J., Halifax, N. S. on January 31 and February 6, 1973. Judgment was delivered by GILLIS J. on February 28, 1973.