Bender v. Carrier

Bender v. Carrier

Because the respondents had not constructed the engine in accordance with the contract (Herreshoff system) and the engine could not function as contracted, the respondents had not performed and their action for the price was premature; the appellant was entitled to incidental damages proven ($750) and to the deduction found by experts ($225).

Citation
(1887) 15 SCR 19
Parties
Appellant / Defendant: Eugene Prosper Bender; Respondents / Plaintiffs: Charles W. Carrier et al.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
13 December 1887
Procedural Posture
Contract / Appeal and Cross Appeal to the Supreme Court of Canada From the Court of Queen's Bench (appeal Side)
Outcome
Appeal allowed; cross-appeal dismissed.
Legal Topics
Executory Contract, Non Performance, Action for Price, Saisie Conservatoire (attachment), Incidental Demand (cross Claim for Damages), Expert Report, Effect of Sale of Attached Property
Source Language
English
Contract Remedies Procedure Security/attachment Executory Contract Non Performance Action for Price Saisie Conservatoire (attachment) +3 more

Case Brief

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Parties

Eugene Prosper Bender

Appellant / Defendant

Charles W. Carrier et al.

Respondents / Plaintiffs

Procedural Posture

Contract / Appeal and Cross Appeal to the Supreme Court of Canada From the Court of Queen's Bench (appeal Side)

Legal Issues

  1. 1 Whether plaintiffs who contracted to build and deliver an engine had performed such that they could maintain an action for the price
  2. 2 Whether the saisie conservatoire was lawful and whether subsequent sale of the yacht affected substantive rights
  3. 3 Whether the appellant proved his incidental demand (damages) and amount thereof

Ratio Decidendi

Because the respondents had not constructed the engine in accordance with the contract (Herreshoff system) and the engine could not function as contracted, the respondents had not performed and their action for the price was premature; the appellant was entitled to incidental damages proven ($750) and to the deduction found by experts ($225).

Court Disposition

Appeal allowed; cross-appeal dismissed.

Orders

  • Respondents' principal claim for the contract price dismissed as premature due to non-performance.
  • Appellant awarded incidental damages of $750 with costs.