Bater et al v. Kare et al.

Bater et al v. Kare et al.

The agreement between the parties (paragraph 6) obligated Bater to bear the first $50,000 of the company's liability for which both were sureties, so appellants were not entitled to contribution for that amount; furthermore, after Kare's withdrawal the continuing benefit of the suretyship vested solely in Bater, so under the equitable principle that the one who gets the benefit must bear the burden, appellants were not entitled to contribution for the $9,034.21 excess; the mortgage was valid on the facts and was not set aside.

Citation
[1964] SCR 206
Parties
Plaintiff Appellant: Barbara Murray Bater and Frances Lynne Brock as Executrices of the Will of the Late George Benjamin Gordon Bater; Barbara Murray Bater; Defendant Respondent: Isaac Kare
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
28 January 1964
Procedural Posture
Civil Appeal (suretyship) / Appeal to the Supreme Court of Canada From the Court of Appeal for Manitoba
Outcome
Appeal dismissed with costs; action dismissed in its entirety
Legal Topics
Contribution Among Co Sureties, Interpretation of Surety Agreement, Validity of Mortgage, Undue Influence, Allocation of Liability Under Guarantee
Source Language
English
Guarantee and Suretyship Equity Contract Law Contribution Among Co Sureties Interpretation of Surety Agreement Validity of Mortgage Undue Influence Allocation of Liability Under Guarantee

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 2 Party arguments 2 Amounts and remedies 11
Sign in to unlock

Parties

Barbara Murray Bater and Frances Lynne Brock as Executrices of the Will of the Late George Benjamin Gordon Bater; Barbara Murray Bater

Plaintiff Appellant

Isaac Kare

Defendant Respondent

Procedural Posture

Civil Appeal (suretyship) / Appeal to the Supreme Court of Canada From the Court of Appeal for Manitoba

Legal Issues

  1. 1 Whether the mortgage from Bater to Kare should be set aside for lack of consideration, misrepresentation or undue influence
  2. 2 Whether appellants are entitled to contribution from Kare for amounts paid by Bater and his estate under the bank guarantee
  3. 3 Whether the parties' agreement allocated the first $50,000 of the company's liability to Bater and thus barred contribution for that portion

Ratio Decidendi

The agreement between the parties (paragraph 6) obligated Bater to bear the first $50,000 of the company's liability for which both were sureties, so appellants were not entitled to contribution for that amount; furthermore, after Kare's withdrawal the continuing benefit of the suretyship vested solely in Bater, so under the equitable principle that the one who gets the benefit must bear the burden, appellants were not entitled to contribution for the $9,034.21 excess; the mortgage was valid on the facts and was not set aside.

Court Disposition

Appeal dismissed with costs; action dismissed in its entirety

Orders

  • Appeal dismissed with costs
  • Action dismissed