Ryder and Wizenberg v. Medic and Medic, (1976) 2 A.R. 284 (CA)

• Judge: McGillivray, C.J.A., Sinclair and Prowse, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 09, 1976
• Citations: (1976), 2 A.R. 284 (CA)

Ryder v. Medic (1976), 2 A.R. 284 (CA)

MLB headnote and full text

Ryder and Wizenberg v. Medic and Medic

Indexed As: Ryder and Wizenberg v. Medic and Medic

Alberta Supreme Court

Appellate Division

McGillivray, C.J.A., Sinclair and Prowse, JJ.A.

September 9, 1976.

Summary:

This case arose out of the plaintiffs' claim to the specific performance on an agreement for the sale of land. The agreement for sale was subject to the condition that the plaintiffs "obtain new mortgage . . . on or before February 15, 1974". The plaintiffs were notified on February 15 by their mortgage company that their application for a mortgage had been approved. The defendant vendors were not notified immediately of the obtaining of the mortgage, but were so notified several days later. The parties continued to act under the agreement. The defendants refused to complete the transaction and the plaintiffs brought an action for specific performance. The Alberta Supreme Court, Trial Division, allowed the action. The defendants appealed.

The Alberta Court of Appeal dismissed the appeal. The Court of Appeal held that the plaintiffs had complied with the condition of obtaining a mortgage by February 15, when they received approval of their mortgage application - see paragraphs 1 to 7.

The Court of Appeal held that, if notice of the obtaining of the mortgage was required to be given to the defendants, the giving of the notice was waived by the conduct of the vendor - see paragraphs 8 to 13.

Contracts - Topic 2525

Variation or alteration of contracts - By parties - Waiver by conduct - An agreement for the sale of land was subject to the condition that the purchaser obtain a mortgage by a certain date - The purchaser obtained the mortgage on the date, but did not inform the vendor until days later - After the vendor learned of the mortgage the parties continued to act under the agreement - The Alberta Court of Appeal held that, if notice of the obtaining of the mortgage was required to be given to the vendor, the giving of the notice was waived by the conduct of the vendor - See paragraphs 8 to 13.

Sale of Land - Topic 6038

Completion - Conditions precedent - Condition respecting financing to be arranged - An agreement for sale was subject to the "purchaser obtaining new mortgage . . . on or before February 15, 1974" - The purchaser was notified on February 15 by a mortgage company that his application for a mortgage had been approved - The Alberta Court of Appeal held that the purchaser had complied with the condition of obtaining a mortgage by February 15, not withstanding that the mortgage had not been signed or registered - See paragraphs 1 to 7.

Cases Noticed:

Barnett v. Harrison (1975), 57 D.L.R. (3d) 225, appld. [para. 13].

Counsel:

Neil R. McKay, for the plaintiffs (respondents);

D.P. Pope, for the defendants (appellants).

This case was heard before McGILLIVRAY, C.J.A., and SINCLAIR and PROWSE, JJ.A., of the Alberta Supreme Court, Appellate Division.

On September 9, 1976, McGILLIVRAY, C.J.A., delivered the following judgment of the Appellate Division: