Transcript
COURT
SUPREME
698
1958
LEO PERRAULT LIMITEE
Jun 17 Nov 19
CANADA
OF
APPELLANT
Defendant
AND
TESSIER
GEORGES
RESPONDENT
Plaintiff
ON APPEAL FROM THE COURT OF QUEENS BENCH APPEAL SIDE PROVINCE SaleDetermined
quantity
Art 1496 The
1532
lumber was
ant
after
breach
to
dismissed appeal
The
written
the buyer was
should
was
in
his to
ask that
the
contract
is
such
well
settled
contract
the other party
PaEsENT
in
who for
to
defend
more wood
claim
to
pay
damages
in
the
balance
breach
and
the
cross-
contract
of
maintained
and
of
made
purchaser
for
was
judge
delivered
lumber
for
and
by the Court
the
of
and cross-
Appeal
be
cannot
interpreted
called
conduct to
obligation treat
take
that
action
of
both
parties the
to
par As
vendor the
as terminating
amount
the
refusal
contract
the price
pay
breach
for
as
the
by
for
owing
and
to
be dissolved Quebec is
that
himself
breach
Tasohereau
The
the subsequent of
the balance
the
for
damages
lumber
option
for
to
no
delivery
but refused
deliveries
anticipated
contract
action
trial
the
breach his
the
vendor
of
contract
The law
had
of
quantity
dismissed
be
of
light
at
the
the
by
the
entitled
his
delivered
The
by
balance
in
that he
plaintiff
payment
of
claimed
demand
which
Held The
claimed
he
in
compensation
ticularly
and the
subsequent
be
pleaded
the
determined
by the purchaser on 30th of each month The
protect
to
demand
letter
to
cancellation
remaining
deliver
accepted
measured
from
accept
vendor
the
for
lumber
be
to
the 15th
attempt
receive
goods
deliveries
contract
of
the
action
asked
an
in
defendant
the
to
notice
continued
them
for his
paid on
receiving
available
In
be
to
for
pay
Code
Civil
was
to
contractSubsequent
of
sell
to
The lumber
and
for
the
of
agreed
plaintiff
QUEBEC
lumberRefusal
of
breach
of
Apprehension
OF
of
in in
synallagmatic
default
cannot
contract
claim
the
damages
the contract
Rand Fauteux
Abbott
and
Judson
JJ
party from
SUPREME COURT
S.C.R
APPEAL Bench
from
Appeal
Cote
of
judgment
Q.C
Berjeron
judgment
JJ was
Judson
Court
judgment which
in
for
dismissed
facts
are
entered
parties
1000000
judgment
action
latters cross-demand
$12000
breach
for
contract
lumber
to
the
in
Bois
sale
of
follows
as
LtiØe
de
sciage
GEORGES TESSIER LEO PERRAULT LTEE
F.O.B
St pieds Epinette
the
1949 the
reading
ACHETE DE EXPEDIER QUAND
de
and
damages
26 for
MONTREAL
courant
extent
contract
writing
LEO PERRAtJLT
the
claiming
of
contract
Manufacturiers
1000000
the
of
to appellant
On November
follows
as
of
from
sold and delivered
into
feet
and
unanimously affirming Court rendered March 19 1956
respondents
lumber
of
Abbott
Fauteux
by
Superior
the
amount
the
The
LTE
Bench1
maintained
of $5582.93
had
the
of
had
LEO
PERRAULT
plaintiff respondent
an appeal
is
Queens
affirming
appellant
Taschereau
of
Queens
of
the
for
of
Quebec1
defendant
delivered
This
ABBOTT
the
of
dismissed
Appeal for
Arortovitch
The
Province
699
Court
the
of
judgment
Side
CANADA
OF
1950
lanØe
sur
Nov
26
1949
ST-FELICIEN demande
Felicien
CyprŁs
Meilleur
qualitØ
Longueur
pieds
14
Largeur
200/4
100/3
300/5
100/7
200/6
0/9
50/8
20/10 sciØ
mesurØ
faible
La
qualitØ
Deux
largeurs
TERMES Fret grŁve
Œtre
peuvent Payable
ou
Œtre
15
le
toute
faites
30
le
les
cause dix
le
mŒme
char
mois
du
sommes
ne
autre
dans
dans
inclus
et
Nous
comptant
dØlai
devront
$45.00
$37.00
hors
jours
pas de
aprŁs
responsables notre la
en
contrle
reception
de
cas
feu
Reclamations
des marchandises
ACCEPTEE signØ
PERRAULT
GEORGES TESSIER
signe
Acheteur
Subsequently the
delivery
the
lumber
there
for
by
point
Vendeiir
mutual
consent
would be changed
would be measured the
purpose
of
by
.the
Que Q.B 420
the
that
agreed
Montreal
purchaser
determining
shipment
51485-13k
was
it
to
and that on
price
arrival
of
each
SUPREME COURT
700
At LEO
PEJTLT
October
when
from September
trial
failure
He
contracted
based
this
on
apprehension
dated September
16 1950
read
Marchands
Bois
de
sciePrØparation
upon an
deliver
the
order
in
to
of contract
respondent
follows
LTEE
Construction
du
bois
Contracteur
et
QuØ
ST-FELICIEN Leo
to
de
CtØ
to
from
as
LES CHANTIERS TESSIER
Moulin
attempted
and
letter
which
fell
the
breach
for
to
At
delivered fail
for
damages
possible claim in
protect
lumber
for
dates
which
for
respectively
would
respondent
lumber
the
of
on various
company
the
for
had
failure
appellants
15
appellant
to pay
that
apprehension balance
of
until
feet
reason
his
11 payment
30 and October
president
its
justify
to October
18
due on September the
that
the
cars unloaded at Montreal
five
the
600000
of
testified
was
deliveries
at the
continued
they
in excess
Respondent
further
for
and
1950
something
delivered
stopping
pay
June
of 11
commenced
deliveries
of appellant
request
beginning
been
AbbJ
the
CANADA
OF
Lac
16
1950
sept
P.Q
St-Jean
LtØe
Perreault MontrØal
Monsieur me
Ii
me
Comme de
plus
reste
dernier
vous
reste
Bouchard
je
bois
Aussitt
que
ou
expØdier vous
lai
dit
Je vous jaurai
de
chars
the
appellant
time and
and October letter
received
receipt
continued
to
receive
October 11 1950 the
result
of
the
maintain
this
19
it
failed
measurement to
pay
for
discrØetsilence
cars
and
as
of
the
imti1
letter
to
the
had
it
have
lumber
said
respondent
which
to
at
September
in
shipments
to report
them
this
answer
wrote
further
accept
although
three cars shipped or to
and
it
two
and
18
on September
to
did not
23
the
of
TESSIER
deliveries
appellant
on September
although
acknowledging
ne
lhiver
lexpØdierai
GEORGES
to accept
Moreover
vous
je
ii
de
production
atention
no
paid
continued
la
Armand
de
MontrØal
vous
signØ
Obviously
achetØ
passage
envoyØ
grands
Bien
mon
de
tout
ai
bois
chars
lors
said
it
up
to
respondent in
Appellant
November
the
last
continued
24 1950
SUPREME
S.C.R
when
following
ment
of
wrote
it
to
CANADA
OF
of
receipt
amounts due
the
delivered
the
COURT
demanding pay
telegrams the
for
carloads
five
respondent
the
in
Georges
lumber
of
terms
following novembre
24
Mr
701
1950
TESSJER Abbott
monsieur
Comme Ia
nous
Nous vous
de
bien
de
beaucoup
vouloir
remplir
Ce
au
avons
attendu
nexpØdiez
cooperation
bois
ceci
plus
nrnis
hautement
sera
tout
debut
un
cause
made
de
Perrault
et
comme Votre
LtØe
Jacques
the
bois
le
following
Øtait
entrØ
de
nouveau
contracter
reference
nous
ferait
pour
votre
ii
to
de
plaisir
faire
un rŁglement
final
195i
coupe
demand
further
January 22 1951 in reply to payment from La Banque Canadienne account had been
10 1950 appel indebtedness
its
On the
dici
derangement
subsequent letter dated December
In
et
nous
contrat
lautomne
de
grand
Par
tout
moment
le
notre
vous Leo
si
de
apprØciØe Bien
lant
dans
bois
balance
la
lannØe
de
fin
de
manquons
demandons
vous
for
Nationale to which wrote
assigned appellant
Bank
the
follows
as
Que monsieur fera
nous
de
envoie
nous
Tessier
plaisir
faire
vous
bois
le
parvenir
contractØ avec
quil retard
sans
le
cheque
que
nous
et
vous
nous
ii
demandez
On March action
1951
and
October
remaining
be delivered
that
substance contract
to
deliver
the
At
tract
and
delivered
already
annulled
under
26
the
had
it
justified
upon
the
same time
all
it
its
asked
declared
In
to
my
that
the
In
pleaded
its
in
under lumber
the
refusal of the respondent
lumber
called for
by
the
con
cross-demand claiming
filed
for
breach
contract
of
found
due
should
be dismissed
to
respondent
be
be compensated
opionion
agreement with in
amount
any
lumber
obligations for
in
contract
the
said contract
to pay
from respondent damages of $12000 and
present
the
of
appellant
refusal
alleged
of the
balance
1951
the
delivered
that
balance
the
fulfilled its
asked
the
for
dated September
defence
and
1950
and
lumber
the
of
price
be cancelled to
instituted
respondent
the
recover
to
September
the
LTEE
Tessier
St-FSlicien Cher
LEO PERRAULT
the the
appeal
reasons
Court of Queens
of
Bench
Bissonnette
and
Que Q.B
420
there
and is
am
in
Hyde JJ
little
that
COURT
SUP1.EME
702 1958
can
add
usefully
the
balance
the
to which
parties AbbottL
buyer
of
is
breach
in
October
15
have
this
that
date
to
that
breach
treat
the
in
As
et
who
is
other
of
his
himself
is
the
cannot
breach of the
himself Locke in
out
and
at
time
his option
contract
for
the
to
ask
and
be
it
to
up
At any
owing
that
law
contract
in default
for
for
speaking pointed
action
the
cross-demand
synallagmatic
party
the
amount
the
continued
entitled
terminating for
was
30
dissolved
Beaudoin.1
al
the
to in
as
action
obligation
appellant
instituted
was
par-
both
of
September
default
its
was
respondent
conclusions
Caplette
that
take
to
principal
from
and
action
contract
C.C 1532
price
respectively
prior to
balance
The
referred
deliver
conduct
subsequent
obligation
time respondents
the
by the
of
letter
to
by respondent
called for the
the
pay
to
of
refusal
of
light
TESSIER
cannot interpret the
as
lumber
of the
in
ticularly
them
to
16 1950
September
CANADA
OF
well settled
damages from
claim
the
As Taschereau
contract
Fauteux
JJ
and Abbott
Commissaires
Lebel
Quebec
in
party to such contract
dEcoles
has
Mont
de
morency2 Cest
doctrine
la
chaque
contractant
garantie
de
son
ce
soit
lui
qui
lautre
obligation
Planiol TraitØ sex prime
MalgrØ Dans
le
exiger
is
dexØcuter dans
la
son
of
et
tant
peut
partie
lune
que
parties
que
comme
une
dexØcuter
refuse
mØme
de
agir
de
des
veut
qui
doit
Droit
Vol
Civil
329
949
de
rapport
nos
lui
qui
prestation
Les
obligation
du
textes
droit
nous
Œtre
due
est contrats
exØcutØs
donc
pouvons chacune
synaliagmatique
que
si
deux
parties
elle
offre
elle-meme
synaliagmatiques scion
notre
cette
formuler
des
doivent
expression
ne
donc
populaire
donnant
The of
majority
be dismissed
should
appeal
RAND the
di
ElØmentaire
silence
tout
rigueur
donnant
The
est
considØrer quil
autorisØ
ainsi
rŁgle peut
NON AD1MPLETI CONTRACTUS
de
16
September
is
vendor
the
after
the
remaining
of
repudiation
11926
41
assume
not deliver
will
three
finding
inclined
in
which
that
the
letter
as
definitive
to
of
fact
view
398
at
405
the
the
more lumber
any
shipments
subsequent deliveries
Que K.B
Abbott
not to be interpreted
that
mentioned drawn am
costs
brother
Court concur
notice
on that
my
of
reasons the
with
legal
letter
which
the
in
letter
conclusion as
positive
would
S.C.R 298
is
at
call
305
for
SUPREME
S.C.R the
consideration
cumstances and
join
in
the
important
of
defer
COURT
to
the
dismissal
of
OF
CANADA
the
but in the
principles
interpretation
703
of
the
cir-
majority
LEO
appeaL dismissed
Appeal
with costs
TESSIER
RandJ Attorneys
the
defendant
appellant
Chait
Montreal
Aronovitch
Attorneys Bergeron
for
for
the
Montreal
plaintiff
respondent
Bergeron
