Cushing v. Knight

Cushing v. Knight

The unpaid $10,000 cash payment required by the agreement was a condition precedent/consideration for the vendors' obligation to sell and to exhibit good title; the purchaser's refusal to make that payment amounted to repudiation, entitling the vendors to rescind and precluding specific performance.

Citation
(1912) 46 SCR 555
Parties
Defendant / Appellant: Alfred B. Cushing; Defendant / Appellant: Arthur T. Cushing; Plaintiff / Respondent: Richard H. Knight
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
4 June 1912
Procedural Posture
Sale of Land / Specific Performance (appeal) / On Appeal to the Supreme Court of Canada From the Supreme Court of Alberta
Outcome
Appeal allowed; judgment of trial judge restored; action for specific performance dismissed
Legal Topics
Specific Performance, Condition Precedent, Deposit, Repudiation, Vendor and Purchaser, Mortgage Apportionment, Time of Essence Clause
Source Language
English
Property Contract Equity Real Estate Law Civil Procedure Specific Performance Condition Precedent Deposit +4 more

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Parties

Alfred B. Cushing

Defendant / Appellant

Arthur T. Cushing

Defendant / Appellant

Richard H. Knight

Plaintiff / Respondent

Procedural Posture

Sale of Land / Specific Performance (appeal) / On Appeal to the Supreme Court of Canada From the Supreme Court of Alberta

Legal Issues

  1. 1 Whether payment of $10,000 cash on signing was a condition precedent to vendors' obligation to sell and convey
  2. 2 Whether the purchaser's refusal to pay pending mortgage severance amounted to repudiation
  3. 3 Whether vendors validly rescinded the agreement and thus whether specific performance could be granted

Ratio Decidendi

The unpaid $10,000 cash payment required by the agreement was a condition precedent/consideration for the vendors' obligation to sell and to exhibit good title; the purchaser's refusal to make that payment amounted to repudiation, entitling the vendors to rescind and precluding specific performance.

Court Disposition

Appeal allowed; judgment of trial judge restored; action for specific performance dismissed

Orders

  • Appeal allowed with costs in this court and in the court en banc
  • Judgment of the Supreme Court of Alberta in banc reversed and trial judge's judgment restored