Ward v. Coffin, (1972) 4 N.B.R.(2d) 481 (CA)

• Judge: Limerick, Hughes and Bugold, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 17, 1971
• Jurisdiction: New Brunswick
• Citations: (1972), 4 N.B.R.(2d) 481 (CA)

Ward v. Coffin (1972), 4 N.B.R.(2d) 481 (CA);

    4 R.N.-B.(2e) 481

MLB headnote and full text

Sommaire et texte intégral

Ward v. Coffin

Indexed As: Ward v. Coffin

Répertorié: Ward v. Coffin

New Brunswick Court of Appeal

Limerick, Hughes and Bugold, JJ.A.

January 21, 1972.

Summary:

Résumé:

The New Brunswick Court of Appeal dismissed the appeal and affirmed the judgment of the New Brunswick Court of Queen's Bench. The trial court granted the equitable remedy of specific performance and ordered the seller of land to deliver a deed to the buyer. The land was located in the Province of Quebec and the agreement for sale was made in the Province of New Brunswick. The agreement was evidenced by a letter to the buyer from the lawyer acting for the seller which contained a general description of the land. Before the seller repudiated the agreement the buyer paid to the seller part of the purchase price and the buyer also took possession of the land.

The agreement for sale did not comply with the Quebec Civil Code which required an agent's authority to be in writing.

The New Brunswick Court of Appeal held that the requirement of the Quebec Civil Code with respect to the written authority of agent selling land is procedural in nature and that procedural matters in the New Brunswick courts are governed by the law of the Province of New Brunswick. The court held admissible parol evidence to make certain the general description of the land contained in the letter to the buyer from the lawyer acting for the seller. The court stated that such a written memorandum satisfies the requirements of the Statute of Frauds.

In addition, the court stated that the payment by the buyer of part of the purchase price and the taking of possession of the land by the buyer, constitutes part performance and takes the case out of the operation of the Statute of Frauds.

The court stated that the New Brunswick courts have jurisdiction to entertain an action for specific performance with respect to land located in the Province of Quebec where the defendant is a resident of the Province of New Brunswick.

The court stated that the law of New Brunswick applies to an agreement for sale made in the Province of New Brunswick with respect to land located within the Province of Quebec.

Sale of Land - Topic 1354

The contract - Necessity for writing, part performance in lieu of writing - Taking possession - Real property - Specific performance - Statute of Frauds - Whether a written memorandum which contained a general description of the land was sufficient - The New Brunswick Court of Appeal held admissible parol evidence to make certain the general description and held that such a written memorandum satisfies the requirement of the Statute of Frauds.

Sale of Land - Topic 1452

The contract - Form and contents of agreement or memorandum - The land - Description of the interest conveyed - Real property - Statute of Frauds - Part performance - The New Brunswick Court of Appeal held that the part payment of the purchase price and the taking of possession of the land by the purchaser takes the case out of the operation of the Statute of Frauds.

Evidence - Topic 6760

Parole Evidence Rule - Interpretation of a legal act, evidence of surrounding circumstances - Ambiguous identification of subject matter - Sale of land - Written memorandum containing a general description of the land - The New Brunswick Court of Appeal stated that parol evidence is admissible to make certain such a general description.

Conflict of Laws - Topic 7203

Contracts - General principles - Procedural laws - Sale of land located in the Province of Quebec - Noncompliance with the Quebec Civil Code by the agent for the seller - Quebec Civil Code required that on the sale of reality that an agent's mandate must be in writing - The New Brunswick Court of Appeal held that such a requirement is procedural in nature and that procedural matters in a New Brunswick court are governed by the law of New Brunswick.

Conflict of Laws - Topic 1101

Service out of jurisdiction - Residence of defendant in jurisdiction - General - Jurisdiction of the New Brunswick courts - Action for specific performance with respect to land located in the Province of Quebec - The defendant in the action was resident in New Brunswick - The New Brunswick Court of Appeal held that because the New Brunswick court has jurisdiction over the person of the defendant that the New Brunswick court has jurisdiction to entertain such an action.

Conflict of Laws - Topic 7238

Contracts - Choice of law - Sale of land - Sale of land located in the Province of Quebec - Agreement for sale made in the Province of New Brunswick - The New Brunswick Court of Appeal held that the law of the Province of New Brunswick applies to the agreement for sale.

Cases Noticed:

Plant v. Bourne, [1897] 2 Ch. 281, folld.

Zhilka v. Turney, [1955] 4 D.L.R. 280 (Ont. H.C.), folld.

Lizzie Moses et al. v. Thomas French et al. (1914), 43 N.B.R. 1, folld.

Mahon v. McCully (1868), 7 N.S.R. 323 (C.A.), folld.

Ex parte Pollard, Mont. & Ch. 250, [1835-42] All E.R. Rep. 415, folld.

Benaim v. Bebono, [1924] A.C. 514, folld.

Statutes Noticed:

Statute of Frauds, R.S.N.B. 1952, c. 218, sect. 1(d).

Counsel:

Peter J. Dykeman, for the defendant, appellant;

J.Y. Arseneau, for the plaintiff, respondent.

Appeal from an unreported judgment of Robichaud, J., dated June 17, 1971, which granted the plaintiff an order for specific performance with respect to a lot of land.

The judgment of the Court was delivered by HUGHES, J.A.