Noel & Blanchette Construction Co. Ltd. v. Medican Construction Ltd., (1984) 53 A.R. 17 (QB)

• Judge: Miller, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 19, 1984
• Citations: (1984), 53 A.R. 17 (QB)

Noel & Blanchette v. Medican Constr. (1984), 53 A.R. 17 (QB)

MLB headnote and full text

Noel & Blanchette Construction Company Limited v. Medican Construction Limited

(No. 8203-11352)

Indexed As: Noel & Blanchette Construction Co. Ltd. v. Medican Construction Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Miller, J.

April 19, 1984.

Summary:

The plaintiff brought an action for the balance owing under a contract to supply crushed rock to the defendant contractor for use in the bed and asphalt for streets. The defendant counterclaimed for damages for extra work in remixing sizes of crushed rock and for replacing defective asphalt.

The Alberta Court of Queen's Bench allowed the claim and the counterclaim in part, resulting in a net judgment in favour of the plaintiff.

Damages - Topic 5708

Contracts - Breach of contract - Apportionment - Where both parties contributed to loss - A contractor brought an action against a crushed rock supplier for damages for replacing defective asphalt allegedly caused by substandard crushed rock - Given that the crushed rock was substandard, the contractor knowingly allowed it to be used and the paving contractor mixed and applied the asphalt improperly - The Alberta Court of Queen's Bench apportioned liability among the crushed rock supplier, the contractor and the paving contractor at one third each - See paragraphs 45 to 48.

Evidence - Topic 3635

Documentary evidence - Private documents - Receipts - General - The Alberta Court of Queen's Bench held that a receipt is prima facie proof of its contents, but may be rebutted - See paragraphs 31 to 34.

Interest - Topic 2024

Agreement to pay interest - What constitutes - Notice on invoices - The Alberta Court of Queen's Bench held that a notice on an invoice that interest will be charged is ineffective, where the parties did not originally agree on the payment of interest - See paragraphs 50 to 51.

Interest - Topic 5302

Interest as damages - Interest on payment of money or debt with held - Improper holding - What constitutes - The plaintiff brought an action for the balance owing under a contract to supply crushed rock to the defendant contractor for the bed and asphalt of streets - The contractor counterclaimed for damages caused by substandard crushed rock - The Alberta Court of Queen's Bench allowed both the claim and counterclaim in part, but refused prejudgment interest to either party - The court stated that payment which is delayed by a reasonable counterclaim for a genuine dispute may bar prejudgment interest - See paragraphs 50 to 55.

Practice - Topic 1848

Pleadings - Counterclaim and set-off - Set-off - Liquidated demand v. claim for unliquidated damages - The Alberta Court of Queen's Bench stated that no set-off arises between a liquidated demand and a claim for unliquidated damages - See paragraphs 53 to 54.

Cases Noticed:

Knoxville Sangravel Materials v. Dunn (1940), 151 S.W. 174 (Tenn. C.A.), appld. [para. 31].

Ontario Equitable Life and Accident Insurance v. Baker, [1926] S.C.R. 297, appld. [para. 31].

Canadian Western Natural Gas v. Pathfinder Survey (1980), 21 A.R. 459, appld. [para. 47].

Evergreen Irrigation v. Belgium Farms (1976), 3 A.R. 248 (S.C.T.D.), appld. [para. 51].

Eyben v. K.R. Ranches (1982), 38 A.R. 336 (C.A.), appld. [para. 52].

Granpac v. American Homes (1981), 33 A.R. 212, consd. [para. 53].

VS Services v. Hillcrest Manors (1976), 24 N.S.R.(2d) 248; 35 A.P.R. 248 (N.S.S.C.T.D.), appld. [para. 53].

Gustavson International Drilling v. B.P. Exploration (1977), 3 A.R. 221 (S.C.T.D.), consd. [para. 53].

Forden v. Morris (1921), 59 D.L.R. 74 (Alta. C.A.), consd. [para. 54].

Statutes Noticed:

Judicature Act, R.S.A. 1980, c. J-1, sect. 15 [para. 50].

Authors and Works Noticed:

Abraham, John D., Concurrent Liability in Contract and Tort (1981-82), 3 Advocates' Quarterly 430 [para. 47].

Chitty on Contracts (25th Ed. 1983), vol. 1, paras. 1685-1690 [para. 47].

McGregor on Damages (14th Ed. 1980), paras. 176-184 [para. 47].

Treitel, G.H., The Law of Contract (5th Ed. 1979), pp. 722-724 [para. 47].

Weinreib, Ernest A., Contribution In a Contractual Setting (1976), 54 Can. Bar Rev. 338 [para. 47].

Wigmore on Evidence, vol. 9, para. 2518 [para. 31].

Counsel:

G.B. Brosseau, for Noel & Blanchette;

W.G. Geddes and M.R. Hetherington, for Medican.

This case was heard at Edmonton, Alberta, before Miller, J., of the Alberta court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 19, 1984: