March Brothers & Wells v. Banton

March Brothers & Wells v. Banton

Because the vendors did not give the thirty‑day written notice required by the agreement, they could not treat the $600 paid on account of the purchase price as forfeited; the payment being part of the purchase price (not an earnest) was recoverable on rescission, and rescission was implied by the plaintiff's claim for repayment when specific performance was denied.

Citation
(1911) 45 SCR 338
Parties
Vendor (appellant): March Brothers & Wells; Purchaser (respondent): Harry W. Banton
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
6 December 1911
Procedural Posture
Civil Appeal (contract for Sale of Land) / Final Judgment on Appeal to Supreme Court of Canada From Supreme Court of Saskatchewan
Outcome
Appeal dismissed with costs; judgment of Saskatchewan courts affirmed.
Legal Topics
Specific Performance, Rescission, Forfeiture, Deposit Vs Part Payment, Notice Requirements, Vendor and Purchaser
Source Language
English
Sale Contract Property Equity Remedies Specific Performance Rescission Forfeiture +3 more

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Parties

March Brothers & Wells

Vendor (appellant)

Harry W. Banton

Purchaser (respondent)

Procedural Posture

Civil Appeal (contract for Sale of Land) / Final Judgment on Appeal to Supreme Court of Canada From Supreme Court of Saskatchewan

Legal Issues

  1. 1 Whether vendor could retain $600 paid on account where contractual 30‑day notice for cancellation was not given
  2. 2 Whether money paid was forfeited as deposit or refundable as part payment on rescission
  3. 3 Whether a claim for repayment implies rescission when specific performance is refused

Ratio Decidendi

Because the vendors did not give the thirty‑day written notice required by the agreement, they could not treat the $600 paid on account of the purchase price as forfeited; the payment being part of the purchase price (not an earnest) was recoverable on rescission, and rescission was implied by the plaintiff's claim for repayment when specific performance was denied.

Court Disposition

Appeal dismissed with costs; judgment of Saskatchewan courts affirmed.

Orders

  • Appeal dismissed with costs
  • Order directing repayment of $600 to respondent Harry W. Banton