Moses v. Bank of Montreal, (1982) 40 A.R. 441 (QB)

• Judge: Forsyth, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 10, 1982
• Citations: (1982), 40 A.R. 441 (QB)

Moses v. Bk. of Mtrl. (1982), 40 A.R. 441 (QB)

MLB headnote and full text

Moses v. Bank of Montreal

(No. 7906 00044)

Indexed As: Moses v. Bank of Montreal

Alberta Court of Queen's Bench

Judicial District of Lethbridge

Forsyth, J.

March 10, 1982

Summary:

The plaintiff applied for an order directing the sheriff to release his truck from seizure, and for the Registrar to discharge the chattel mortgage registered against it. The chattel mortgagee claimed its right to security in the truck. The Alberta Court of Queen's Bench allowed the plaintiff's claim and dismissed the mortgagee's claim.

Chattel Mortgages and Bills of Sale - Topic 4286

Rights of third parties - Loss of title to subsequent purchaser - Sale of mortgaged property by mercantile agent - Factors Act, R.S.A. 1970, c. 132, s. 3 - A chattel mortgagee of a truck consented to the sale of the truck to a dealer on the condition that the chattel mortgage be discharged - The dealer's cheque to pay out the mortgage was dishonoured, because it went into receivership - The Alberta Court of Queen's Bench held that under s. 3 of the Factors Act, R.S.A. 1970, c. 132, a subsequent purchaser from the dealer held the truck free and clear from the chattel mortgage, because the bank had consented to the sale to the dealer as a mercantile agent - See paragraphs 8 to 11.

Cases Noticed:

Toronto Dominion Bank v. Dwyer (1979), 9 Alta. L.R.(2d) 202; 17 A.R. 492, ref'd to. [para. 6].

Bozsik v. Kaufmann (1963), 45 W.W.R.(N.S.) 316 ref'd to. [para. 6].

Kozak v. Ford Motor Credit Co., [1971] 3 W.W.R. 1; 14 D.L.R.(3d) 735, ref'd to. [para. 6].

Terra Power Tractor Co. Ltd. v. Chapman (1977), 5 A.R. 286; 2 Alta. L.R.(2d) 247, ref'd to. [para. 6].

Sheriff of Edmonton v. Kozak, Hanson et al. (1965), 54 W.W.R.(N.S.) 667, ref'd to. [para. 8].

Eastern Distributors Ltd. v. Goldring, [1957] All E.R. 525, ref'd to. [para. 10].

Statutes Noticed:

Factors Act, R.S.A. 1970, c. 132, sect. 3(1) [para. 3].

Sale of Goods Act, R.S.A. 1970, c. 327, sect. 24 [para. 5].

Counsel:

P.G. Pharo, for the plaintiff;

H.P.J. Heil, for the defendant.

This case was heard by FORSYTH, J., of the Alberta Court of Queen's Bench, Judicial District of Lethbridge on March 10, 1982.