Samardzija v. Judd, McKee and Hildebrand Stores Ltd., (1986) 40 Man.R.(2d) 253 (QB)

• Judge: Glowacki, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 13, 1986
• Jurisdiction: Manitoba
• Citations: (1986), 40 Man.R.(2d) 253 (QB)

Samardzija v. Judd (1986), 40 Man.R.(2d) 253 (QB)

MLB headnote and full text

Samardzija and Samardzija v. Judd and McKee (defendants) and Hildebrand Stores Limited (third party)

(Suit No. 84-01-00846)

Indexed As: Samardzija v. Judd, McKee and Hildebrand Stores Ltd.

Manitoba Court of Queen's Bench

Glowacki, J.

February 13, 1986.

Summary:

The plaintiff purchasers of a piano sued the vendors for rescission of the contract of purchase and sale, plus a refund of the purchase price and damages for incurred expenses. The vendors joined the party from whom they purchased the piano, for indemnity and for rescission of their own purchase agreement.

The Manitoba Court of Queen's Bench allowed the plaintiff purchasers' action against the defendant vendors. The court allowed the plaintiff purchasers to rescind the contract, recover the purchase price and the expenses incurred. The court also allowed the defendant vendors' claim against the third party for indemnity respecting the plaintiffs' action. The defendant vendors were held unentitled to rescission of their own purchase agreement, but were entitled to damages.

Sale of Goods - Topic 6503

Breach - Remedies of buyer - Damages - McKee bought a piano from Hildebrand on the representation that it was a Baldwin - Two years later, after McKee herself sold the piano to Samardzija on the same misrepresentation, both discovered that it was not a Baldwin, but a Bradley piano - Samardzija successfully sued for rescission - The Manitoba Court of Queen's Bench held that McKee had ample opportunity to examine the piano and learn its true make - The court held that McKee was not entitled to rescission, but could recover damages from Hildebrand equal to the difference in value between the two pianos, plus the amount she was required to indemnify Samardzija and the cost of obtaining return of the piano - See paragraphs 16 to 17.

Sale of Goods - Topic 6510

Breach - Remedies of buyer - Rescission - Breach of condition - Purchasers were induced to buy a piano on the vendors' innocent misrepresentation that it was a Baldwin piano - The purchasers gave notice to the vendors requesting a rescission approximately three weeks after the purchase - The Manitoba Court of Queen's Bench held that the make of the piano was a condition going to the root of the contract - For breach of this condition, the Manitoba Court of Queen's Bench held that the purchaser was entitled to rescission, a refund of the purchase price and payment of their expenses of moving the piano and having it tuned - See paragraphs 14 to 15.

Cases Noticed:

Fleischhaker v. Fort Garry Agency (1956-7), 20 W.W.R.(N.S.) 568, refd to. [para. 8].

Southwood Mall Ltd. v. Scardina, [1981] 6 W.W.R. 569, refd to. [para. 8].

Bevan v. Anderson et al. (1957-8), 23 W.W.R.(N.S.) 508, refd to. [para. 8].

F. & B. Transport v. White Trucks Sales Manitoba Ltd. (1965), 47 D.L.R.(2d) 419, refd to. [para. 8].

United Scientific Holdings v. Burnley, B.C., [1977] 2 All E.R. 62, refd to. [para. 11].

Kehler v. Klumper (1983), 23 Man.R.(2d) 196, refd to. [para. 12].

Adams v. Canadian Co-operative Implements Ltd. (1980), 20 A.R. 533, refd to. [para. 12].

Leaf v. International Galleries, [1950] 2 K.B. 86, refd to. [para. 12].

Whittington v. Seale-Hayne (1900), 82 L.T. 49, refd to. [para. 15].

Statutes Noticed:

Sale of Goods Act, R.S.M. 1970, c. S-10; C.C.S.M., c. S-10, sect. 13 [para. 13]; sect. 60(1) [para. 10].

Authors and Works Noticed:

Fridman, The Sale of Goods in Canada (2nd Ed.), pp. 11-13 [para. 11].

Counsel:

J.E. Harris, for the plaintiff;

S.H.I. Lasker, for the defendants;

D. Hildebrand, president of the company, appeared for the third party.

This action was heard before Glowacki, J., of the Manitoba Court of Queen's Bench, whose decision was delivered on February 13, 1986.