Syl-Nor Realties Ltd. v. Kerxmaris, (1974) 9 N.S.R.(2d) 1 (CA)

• Judge: Coffin, Cooper and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 11, 1974
• Jurisdiction: Nova Scotia
• Citations: (1974), 9 N.S.R.(2d) 1 (CA)

Syl-Nor Realties Ltd. v. Kerxmaris (1974), 9 N.S.R.(2d) 1 (CA)

MLB headnote and full text

Syl-Nor Realties Ltd. v. Kerxmaris

Indexed As: Syl-Nor Realties Ltd. v. Kerxmaris

Nova Scotia Supreme Court

Appeal Division

Coffin, Cooper and Macdonald, JJ.A.

March 11, 1974.

Summary:

This case arose out of an action by a seller for the breach of an agreement for the sale of land. The seller and the buyer entered into an agreement for the sale of a 16 unit apartment building in Dartmouth, Nova Scotia. Before the closing the purchaser wrote to the seller and stated new terms under which the purchaser was prepared to close the sale - see paragraph 46. In subsequent correspondence the purchaser confirmed his refusal to close the transaction - see paragraph 60. The seller did not tender a deed. The trial court allowed the plaintiff's action and awarded the plaintiff $4,000 damages for breach of the agreement for sale - see paragraphs 64 to 67. The judgment of the trial court is set out below immediately following the judgment of the Appeal Division.

On appeal to the Appeal Division of the Nova Scotia Supreme Court the appeal was dismissed and the judgment of the trial court was affirmed.

The Appeal Division stated that the purchaser waived the requirement of tender when the purchaser wrote to the seller and stated new terms on which the purchaser was prepared to complete the sale - see paragraphs 29 and 61 to 63.

Sale of Land - Topic 2005

Formation of contract - Consensus - Whether the terms of a purchase money mortgage were capable of interpretation - The Nova Scotia Court of Appeal stated that the written terms of the agreement coupled with subsequent oral conversations rendered the mortgage valid and capable of interpretation - See paragraphs 19 to 22.

Sale of Land - Topic 6154

Completion - Tender of deed - Waiver - Action by a seller for damages for breach of an agreement for sale by a purchaser - Whether a tender of the deed was required the Nova Scotia Court of Appeal held that the purchaser waived the requirement of tender when the purchaser wrote to the seller and stated new terms on which the purchaser was prepared to complete the sale - See paragraphs 29 and 61 to 63.

Sale of Land - Topic 8753

Remedies of purchaser - Breach of a non-fundamental term by a purchaser giving the purchaser right to damages only - An agreement for the sale of land included certain chattels - The Nova Scotia Court of Appeal stated that if the chattels were incumbered contrary to the agreement then the purchaser has a right to damages but does not have a right to rescind the agreement - See paragraph 17.

Cases Noticed:

O'Brien v. Stebbins et al., [1927] 3 D.L.R. 274, dist. [para. 17].

Peterson v. Bitzer (1921), 62 S.C.R. 384, folld. [para. 22].

Startup v. MacDonald (1843), 6 Man. & G. 593; 134 E.R. 1029, folld. [para. 61].

Finch v. Brook, 131 E.R. 1114, folld. [para. 62].

Counsel:

W.R.E. Goodfellow, for the appellant;

J.P. Merrick, for the respondent.

This case was heard by the Appeal Division on February 4 and 20, 1974. Judgment was delivered on March 11, 1974.

The judgment of the court was delivered by Macdonald, J.A.