Dobson v. Winton and Robbins Ltd.

Dobson v. Winton and Robbins Ltd.

Where a vendor pleads alternatively for specific performance and for common law damages in the alternative, the pleading is equivocal and does not constitute an election preventing pursuit of damages if specific performance becomes impossible; the plaintiff was entitled to recover the price difference (contract price less resale price) credited by the deposit, together with interest and taxes from closing until resale and reasonable expenses of the second sale (excluding real estate commission), and a reference should be directed to ascertain those damages with defendant allowed to challenge mitigation if it elects before judgment.

Citation
[1959] SCR 775
Parties
Plaintiff/appellant (vendor): Roland Dobson; Defendant/respondent (purchaser): Winton and Robbins Limited
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
6 October 1959
Procedural Posture
Contract (sale of Land) Specific Performance and Damages / Appeal to Supreme Court of Canada From Court of Appeal for Ontario; Judgment on Merits
Outcome
Appeal allowed; judgment for plaintiff subject to reference to quantify damages; costs awarded to plaintiff; defendant granted option to challenge mitigation under conditions.
Legal Topics
Specific Performance, Damages for Breach of Contract, Pleadings and Amendment, Election of Remedies, Mitigation of Damages, Jurisdiction Under Judicature Act, Vendor and Purchaser Obligations
Source Language
English
Property Law Contract Law Equity Civil Procedure Specific Performance Damages for Breach of Contract Pleadings and Amendment Election of Remedies +3 more

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Parties

Roland Dobson

Plaintiff/appellant (vendor)

Winton and Robbins Limited

Defendant/respondent (purchaser)

Procedural Posture

Contract (sale of Land) Specific Performance and Damages / Appeal to Supreme Court of Canada From Court of Appeal for Ontario; Judgment on Merits

Legal Issues

  1. 1 Whether vendor who sold property while specific performance claim pending could pursue common law damages
  2. 2 Whether pleadings sufficiently pleaded an alternative common law claim for damages and thus avoided an election of remedies at institution of suit
  3. 3 What items of loss are recoverable (price difference, interest, taxes, resale expenses, commission)

Ratio Decidendi

Where a vendor pleads alternatively for specific performance and for common law damages in the alternative, the pleading is equivocal and does not constitute an election preventing pursuit of damages if specific performance becomes impossible; the plaintiff was entitled to recover the price difference (contract price less resale price) credited by the deposit, together with interest and taxes from closing until resale and reasonable expenses of the second sale (excluding real estate commission), and a reference should be directed to ascertain those damages with defendant allowed to challenge mitigation if it elects before judgment.

Court Disposition

Appeal allowed; judgment for plaintiff subject to reference to quantify damages; costs awarded to plaintiff; defendant granted option to challenge mitigation under conditions.

Orders

  • Appeal allowed with costs throughout to the plaintiff
  • Direct a reference to ascertain damages in accordance with reasons (price difference less deposit; interest at 5% on specified principal from closing to resale; taxes; reasonable expenses of second sale including solicitor’s fee)