Vollmann Estate v. Danek, (1982) 41 N.B.R.(2d) 379 (TD)

• Judge: Leger, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 18, 1982
• Jurisdiction: New Brunswick
• Citations: (1982), 41 N.B.R.(2d) 379 (TD)

Vollmann Estate v. Danek (1982), 41 N.B.R.(2d) 379 (TD);

    41 R.N.-B.(2e) 379; 107 A.P.R. 379

MLB headnote and full text

Sommaire et texte intégral

Vollmann Estate v. Danek

Indexed As: Vollmann Estate v. Danek

Répertorié: Vollmann Estate v. Danek

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Edmundston

Leger, J.

June 18, 1982.

Summary:

Résumé:

A vendor agreed to sell land to an American and purported to deed all the land to him. However, the deed did not convey all the land negotiated for, but only a part thereof. The purchaser died. His estate brought an action against the vendor for specific performance, a declaration that the vendor had no interest in the disputed lands and in fact held the lands in trust for the deceased's estate and, in the alternative, damages for breach of contract.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the plaintiff's action and awarded damages in lieu of specific performance, because the vendor previously conveyed the disputed lands to herself and her son.

Contracts - Topic 1599

Formation of contract - Mistake or misrepresentation - Mutual mistake - The New Brunswick Court of Queen's Bench, Trial Division, set out the standard of proof required to establish a mutual mistake - See paragraph 18.

Contracts - Topic 1599

Formation of contract - Mistake or misrepresentation - Mutual mistake - The New Brunswick Court of Queen's Bench, Trial Division, where there was no written agreement between the parties, used parol evidence of the intention of the parties to an agreement to sell land to determine whether there was a common mistake - See paragraphs 19 to 20.

Executives and Administrators - Topic 1126

Grant of probate or letters of administration - Resealing - Copy of probate or letters of administration - What constitutes - The New Brunswick Court of Queen's Bench, Trial Division, held that pursuant to s. 44(2) of the Probate Courts Act, a certified copy of letters testamentary, not the original letters, may be deposited for resealing - See paragraphs 8 to 11.

Executors and Administrators - Topic 5085

Actions by and against representatives - Actions by executors - Conditions precedent - The duly-appointed executor of the estate of a deceased American sought to bring an action in New Brunswick on behalf of the estate - The New Brunswick Court of Queen's Bench, Trial Division, held that it was sufficient if the executor had a certified copy of the original letters testamentary resealed by the New Brunswick Probate Court - The court held that the will need not be annexed to the resealed letters testamentary and the admission into evidence of the resealed letters established the executor's prima facie right to bring the action - See paragraphs 8 to 14.

Sale of Land - Topic 8755

Remedies of purchaser - Damages - In lieu of specific performance - The plaintiff brought an action for specific performance of an agreement for the sale of land, after the vendor failed to include all of the agreed property in her deed - After the action was commenced, the vendor conveyed the missing parcel to herself and her son - The New Brunswick Court of Queen's Bench, Trial Division, awarded the plaintiff damages equal to the appraised value of the missing parcel - The court stated that the judgment could be satisfied by the vendor conveying the missing parcel to the plaintiff within 30 days, plus the costs of the action - See paragraphs 30 to 33.

Cases Noticed:

Stumps v. Bradley (1868), 15 Gr. 30, refd to. [para. 12].

Halwa et al. v. Olsen et al., [1948] 2 D.L.R. 672, refd to. [para. 17].

Brethour & Morris Ltd. v. Shields Construction Co. Ltd. et al., [1958] O.W.N. 128, refd to. [para. 17].

Brown v. Schleyer (1980), 27 N.B.R.(2d) 63; 60 A.P.R. 63, refd to. [para. 18].

Augdome Corporation Ltd. v. Gray et al. (1975), 3 N.R. 235; 49 D.L.R.(3d) 372, refd to. [para. 18].

Belding v. McRae (1957), 20 M.P.R. 325, appld. [para. 19].

Statutes Noticed:

Probate Courts Act, R.S.N.B. 1973, c. P-17, sect. 44(2) [paras. 9 to 11]; sect. 44(3) [paras. 9 to 10]; sect. 133 [para. 13].

Authors and Works Noticed:

Chitty on Contracts (24th Ed.), p. 146, s. 312 [para. 16].

Counsel:

Gilles C. Thibodeau, for the plaintiff;

F. Dodd Tweedie, Q.C., for the defendant.

This action was heard before LEGER, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Edmundston. The decision of LEGER, J., was delivered at Moncton, New Brunswick, on June 18, 1982.