Worth v. Walter, (1975) 19 N.S.R.(2d) 231 (TD)

• Judge: Dubinsky, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 26, 1975
• Jurisdiction: Nova Scotia
• Citations: (1975), 19 N.S.R.(2d) 231 (TD)

Worth v. Walter (1975), 19 N.S.R.(2d) 231 (TD);

    24 A.P.R. 231

MLB headnote and full text

Worth v. Walter

Indexed As: Worth v. Walter

Nova Scotia Supreme Court

Trial Division

Dubinsky, J.

February 26, 1975.

Summary:

This case arose out of the plaintiff's claim against the defendant on the basis of two cheques. The defendant, a resident of the United States, purchased Christmas trees from the plaintiffs through an agent in Nova Scotia. The cheques were written by the agent. The plaintiffs brought an action against the defendant on the cheques.

The Nova Scotia Supreme Court, Trial Division, allowed the action, but refused to award interest to the plaintiffs as damages. See paragraphs 7 - 26. See also Sydney Rotary Drilling Services Limited v. Quebec Assurance Company (1975), 16 N.S.R.(2d) 233, and McInnes, Meehan and Tramble v. Webb Real Estate et al. (1977), 20 N.S.R.(2d) 6.

Interest - Topic 5306

Interest is damages - Interest on payment of money or debt withheld - Amount due under a negotiable instrument - The plaintiffs brought an action against the defendant on the basis of two cheques written by the defendant - The Nova Scotia Supreme Court, Trial Division, allowed the action, but held that in the absence of an agreement to pay interest no interest could be awarded as damages - The Trial Division reviewed the law of the jurisdiction of the Supreme Court to award interest as damages - See paragraphs 7 to 26.

Negotiable Instruments - Topic 4103

Cheques - Consideration - Presumption of consideration - The plaintiffs brought an action against the defendant on the basis of two cheques written by the defendant - The defendant had no transactions with one of the plaintiffs, to whom one cheque was made out - The Nova Scotia Supreme Court, Trial Division, held that there was a presumption of consideration for the cheque and that the plaintiffs did not have to prove consideration - See paragraphs 5 to 6.

Practice - Topic 7116

Cost - Party and party costs - Special orders - Gross sum in addition to party and party costs - Civil Procedure Rule 63.02(1)(a) - The plaintiff's brought an action against the defendant who was a United States resident, on the basis of two cheques written by the defendant - The defendant refused to accept service of the Originating Notice, entered a conditional defence, refused to follow the instructions to two solicitors and failed to appear for trial - The Nova Scotia Supreme Court, Trial Division, allowed the action - The Trial Division awarded a lump sum of $700.00 for costs in addition to taxed costs - See paragraph 27.

Cases Noticed:

Hawker Industries Ltd. v. H.B. Nickerson & Sons Ltd. (1971), 2 N.S.R.(2d) 608; 16 D.L.R.(3d) 459, not folld. [para. 8].

Pickford & Black Ltd. v. Canadian General Insurance Co. et al. (1974), 42 D.L.R.(3d) 360, rev'd 10 N.S.R.(2d) 501, not folld. [para. 8].

Toronto R. Co. v. City of Toronto, [1906] A.C. 117, folld. [para. 8].

Re Baugild (1954), 34 M.P.R. 346, consd. [para. 21].

Statutes Noticed:

Civil Procedure Act, 1833 (Imp.), 3 & 4 Wm. 4, c. 42, sect. 28, sect. 29 [para. 10].

Civil Procedure Rules, rule 63.02(1)(a) [paras. 7 & 27].

Interest Act, R.S.N.S. 1851 (First Series), c. 82, sect. 4, sect. 5 [para. 14].

Interest Act, R.S.N.S. 1859 (Second Series), c. 82, sect. 4, sect. 5 [para. 15].

Interest Act, R.S.N.S. 1864 (Third Series), p. 741, sect. 4, sect. 5 [para. 15].

Interest Act, R.S.N.S. 1873 (Fourth Series) [para. 15].

Interest Act, R.S.N.S. 1884 (Fifth Series), App. A, p. 33, sect. 4, sect. 5 [para. 16].

Interest on Judgments Act, R.S.N.S. 1967, c. 150 [para. 21].

Judicature Act, R.S.N.S. 1884, c. 104, sect. 45 [para. 19].

Judicature Act, (1950), sect. 15, sect. 16 [para. 21].

Lord Tenterden's Act, 1833 (Imp.), 3 & 4 Wm. 4, c. 42, sect. 28, sect. 29 [para. 10].

Pleadings and Practice Act, R.S.N.S. 1851 (First Series), c. 134, sect. 82, sect. 83 [para. 17].

Pleadings and Practice Act, R.S.N.S. 1859 (Second Series), c. 134, sect. 213, sect. 214 [para. 18].

Pleadings and Practice Act, R.S.N.S. 1864 (Third Series), c. 134, sect. 216, sect. 217 [para. 18].

Pleadings and Practice Act, R.S.N.S. 1873 (Fourth Series), c. 94, sect. 231, sect. 232 [para. 18].

Authors and Works Noticed:

Chitty on Contracts (3rd Ed. 1968), vol. 2, pp. 525-6 [para. 9 & 23].

Falconbridge on Banking and Bills of Exchange (7th Ed. 1969), p. 604 [para. 6].

McGregor on Damages (13th Ed. 1972), pp. 316-7 [para. 11].

Counsel:

RONALD A. MacDONALD and MAURICE G. SMITH, for the plaintiffs;

No one appearing on behalf of the defendant.

This case was heard on February 17, 1975, at Guysborough, Nova Scotia, before, DUBINSKY, J., of the Nova Scotia Supreme Court, Trial Division.

On February 26, 1975, DUBINSKY, J., delivered the following judgment: