J.L. Simms & Sons Ltd. v. Vigneron, (1955) 19 N.B.R.(2d) 426 (QB)

• Judge: Bridges, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: July 07, 1955
• Jurisdiction: New Brunswick
• Citations: (1955), 19 N.B.R.(2d) 426 (QB)

Simms & Sons Ltd. v. Vigneron (1955), 19 N.B.R.(2d) 426 (QB);

    19 R.N.-B.(2e) 426; 30 A.P.R. 426

MLB headnote and full text

Sommaire et texte intégral

J.L. Simms & Sons, Limited v. Vigneron

Indexed As: J.L. Simms & Sons Ltd. v. Vigneron

Répertorié: J.L. Simms & Sons Ltd. v. Vigneron

New Brunswick Court of Queen's Bench

Bridges, J.

July 7, 1955.

Summary:

Résumé:

This case arose out of the plaintiff's claim to a mechanics' lien against an owner. The work for which the lien was claimed was performed in 1953, but the owner counterclaimed for damages for work which the plaintiff performed in 1948-49.

The New Brunswick Court of Queen's Bench allowed the plaintiff's action and dismissed the owner's counterclaim. The New Brunswick Court of Queen's Bench held that a counterclaim may not be pleaded by the defendant in a mechanics' lien action. The New Brunswick Court of Queen's Bench held that the owner had the right to set-off only in respect of work for which the lien was claimed and not in respect of the work performed previously in 1948-49.

Mechanics' Liens - Topic 8060

Practice - Pleading - Defences - Counterclaim - Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, ss. 36, 43(1) - The New Brunswick Court of Queen's Bench held that a counterclaim cannot be pleaded by a defendant in a mechanics' lien action.

Mechanics' Liens - Topic 8061

Practice - Pleading - Defences - Set-off - Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, ss. 36, 43(1) - The New Brunswick Court of Queen's Bench held that the defendant in a mechanics' lien action has the right to set-off only in respect of work for which the lien is claimed and not in respect of some other work or contract.

Cases Noticed:

McDonald v. Reid (1950), 25 M.P.R. 239, refd to. [para. 3].

Atlantic Paving Company Limited v. The Cameron Properties Limited et al., [1955] 2 D.L.R. 731, appld. [para. 4].

Edmonton Iron Works Limited v. Cristall (1910), 15 W.L.R. 659, appld. [para. 5].

Statutes Noticed:

Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, sect. 36, sect. 43(1).

Authors and Works Noticed:

Annual Practice (1953), p. 332 [para. 3].

Benjamin on Sale (8th Ed.), p. 989 [para. 5].

Counsel:

D.M. Dickson, for the plaintiff;

R.V. Limerick, Q.C., for the defendant.

This case was heard at Fredericton, N.B., before BRIDGES, J., of the New Brunswick Supreme Court, Queen's Bench Division.

On July 7, 1955, BRIDGES, J., delivered the following judgment: