Stendel v. Moidel

Stendel v. Moidel

The seller’s participation in the work and endorsement of a promissory note did not constitute an express or tacit renunciation of his hypothecary rights; cancellation of the sale under the resolutory clause therefore extinguished the contractor’s privilege, and the factual finding to that effect by the lower courts was not shown to be obviously wrong.

Citation
[1977] 2 SCR 256
Parties
Appellant (trustee in Bankruptcy of Adler): David Stendel; Respondent: Eric Bruce Moidel; Respondent (liquidator/trustee): Peter Lawrence; Plaintiff (general Contractor): Leon M. Adler; Defendant (transferee): Hôtel de Lasalle (1965) Inc.; Defendant (buyer): Hôtel Président Inc.; Seller/transferee of Vendor's Rights: S.L. Caplan; Co Obligor/endoser: N.H. Caplan; Mis En Cause: The Registrar of the Registry Office of the Registry Division of Montreal
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
25 February 1976
Procedural Posture
Civil Appeal Concerning Sale, Property Security and Contractor's Privilege / On Appeal to the Supreme Court of Canada From the Court of Appeal for Quebec; Final Judgment
Outcome
Appeal dismissed
Legal Topics
Resolutory Clause, Contractor's Privilege, Tacit Renunciation, Hypothec, Promissory Note, Priority of Security
Source Language
English
Sale Property Security Interests Contract Law Insolvency/bankruptcy Resolutory Clause Contractor's Privilege Tacit Renunciation +3 more

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Parties

David Stendel

Appellant (trustee in Bankruptcy of Adler)

Eric Bruce Moidel

Respondent

Peter Lawrence

Respondent (liquidator/trustee)

Leon M. Adler

Plaintiff (general Contractor)

Hôtel de Lasalle (1965) Inc.

Defendant (transferee)

Hôtel Président Inc.

Defendant (buyer)

S.L. Caplan

Seller/transferee of Vendor's Rights

N.H. Caplan

Co Obligor/endoser

The Registrar of the Registry Office of the Registry Division of Montreal

Mis En Cause

Procedural Posture

Civil Appeal Concerning Sale, Property Security and Contractor's Privilege / On Appeal to the Supreme Court of Canada From the Court of Appeal for Quebec; Final Judgment

Legal Issues

  1. 1 Whether seller’s conduct and endorsement of a promissory note constituted tacit renunciation of his right to extinguish a contractor’s privilege upon cancellation of sale
  2. 2 Whether a promissory note signed by the seller created a real security or priority over the seller’s hypothec
  3. 3 Standard of review for factual finding of tacit renunciation (when Supreme Court will overturn concurrent factual findings)

Ratio Decidendi

The seller’s participation in the work and endorsement of a promissory note did not constitute an express or tacit renunciation of his hypothecary rights; cancellation of the sale under the resolutory clause therefore extinguished the contractor’s privilege, and the factual finding to that effect by the lower courts was not shown to be obviously wrong.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs
  • Contractor's privilege struck out in accordance with the resolutory clause and lower courts' orders