A-203-85
Jacques Beauchamp (Plaintiff) (Respondent)
v.
Coastal Corporation and the Ship Wayward Prin
cess (Defendants) (Appellants)
and
Roynat Incorporated (Intervenor)
INDEXED AS: BEAUCHAMP V. COASTAL CORP. (F.C.A.)
Court of Appeal, Thurlow C.J., Mahoney and
MacGuigan JJ.—Toronto, February 5 and 6;
Ottawa, March 17, 1986.
Maritime law — Contracts — Specific performance
Appeal from Trial Division decision awarding damages for
repudiation of contract for sale of vessel — Alternative claim
for specific performance or damages — Prior to trial, defend
ants (appellants) tendering documents purporting to close
agreement — Appellants arguing contract open for completion
as respondent still seeking specific performance — Case law
explained — Claim for specific performance not amounting to
election of that remedy: Dobson v. Winton & Robbins Ltd.,
[19591 S.C.R. 775; 20 D.L.R. (2d) 164 — Alternative claim for
specific performance not retaining contract in effect and
enforceable at any time by either party, but invoking Court's
jurisdiction to enforce contract if equitable and otherwise to
award damages for breach — Court to determine terms for
completion of contract — Innocent party retaining option to
elect remedies — Inequitable to retain contract as in effect for
all purposes and enforceable at instance of either party as
would deprive innocent party of election arising from other
party's original default — Unfair to abrogate distinction be
tween wronged and wronging party.
Practice — Res judicata — Action for specific performance
or damages — Documents tendered to close agreement prior to
trial — Motion for specific performance denied as opposition
to judgment for specific performance indicating election to
treat contract as repudiated by fundamental breach — Argu
ment issue as to effect of tender res judicata as dealt with by
Strayer J. and not appealed considerable — As desirable to
leave substantive issues as open as possible pending trial,
preferable not to decide appeal on narrow ground.
This is an appeal from a Trial Division decision awarding
damages for repudiation of a contract for the sale of a vessel.
The Trial Judge found that there was a valid contract of sale
which the purchaser wished to have completed, but which the
vendor refused to complete. The purchaser brought an action
seeking specific performance or, alternatively, damages for
failure to complete the contract. The appellants moved for
specific performance and tendered documents on the respond
ent's solicitors purporting to close the agreement. The motion
was dismissed. Strayer J. concluded that while the defendants
cannot force the plaintiff to accept specific performance, the
plaintiff has, by opposing a judgment in his favour for specific
performance and at the same time applying for judgment for
damages, indicated that he has chosen to treat the contract as
repudiated by a fundamental breach.
The appellants argue that, there having been no election by
the respondent to retract the claim for specific performance,
the contract was still open for completion; the respondent's
refusal to complete was a repudiation of the contract, which
until that time had continued to exist; thus, the respondent,
rather than the appellants, was in breach of contract.
Held, the appeal should be dismissed.
The respondent's argument of res judicata is not inconsider
able, but because of the general desirability of leaving substan
tive issues as open as possible pending trial, it is preferable not
to decide the case on this narrow ground.
The appellants relied on a passage from Halsbury's Laws of
England stating that the right of election ceases if the defend
ant remedies the breach before the plaintiff accepts the
repudiation. However, this statement was based on Frost v.
Knight (1872), L.R. 7 Exch. 111, which dealt with an anticipa
tory breach of contract. It has no precedential value for a case
of actual breach of contract.
The appellants also relied on a statement in Sharpe, Injunc
tions and Specific Performance, that "An unaccepted repudia
tion is a thing writ in water and of no value to anybody: it
confers no legal rights of any sort or kind." This was taken
from Howard v. Pickford Tool Co. Ld., [1951] 1 K.B. 417
(C.A.), where the Court refused to entertain the plaintiff's
claim, since the problem was academic. The other authority
relied upon by Sharpe was Goldenberg et al. v. Lieberman,
[1951] 2 D.L.R. 584 (Ont. H.C.), where the statement that
where a claim is for specific performance or damages, it is open
to a defendant at any time before judgment to elect to carry out
the contract, thereby relieving him of any liability on the
alternative claim for damages, was obiter. These views were
repeated in obiter in Dobson v. Winton & Robbins Ltd. (1958),
14 D.L.R. (2d) 110 (Ont. H.C.). The Supreme Court reversed
the dismissal of the claim for damages and held that the
plaintiff must elect which remedy he will take, but he is under
no compulsion to elect until judgment. Where a -writ for
specific performance is issued with an alternative common law
claim for damages, the writ is equivocal and there is no
election.
The present claim for specific performance is not an election
of that remedy alone. It was always accompanied by the
alternative claim for damages. An action for specific perform
ance does not retain the contract in effect and enforceable at
any time at the instance of either, but when brought with an
alternative claim for damages, invokes the jurisdiction of the
Court to enforce the contract, if it can be equitably enforced,
and otherwise to award damages for its breach. If the contract
can be equitably enforced it is for the Court to determine the
terms for completion and what adjustments are to be made for
losses resulting from the breach.
If the effect of claiming specific performance were to retain
the contract as in effect for all purposes, and enforceable at the
instance of either party, the innocent party would be deprived
of his election, which he alone has as the result of the other
party's original default. The election to forego specific perform
ance can be made at any time during the litigation. It existed
when the appellants made their tender of performance if it had
not already been irrevocably foregone by either a solicitor's
letter indicating an intent not to pursue the claim for specific
performance or opposition to the appellants' motion for specific
performance. If a tender of performance by the defaulting
party could cure his breach he would have, simply because of
there being a claim for specific performance, after breaking the
contract, as much right to enforce it as the innocent party has.
This would not be equity because it would not be fair, in
relation to a contract of which time was of the essence, to
abrogate the distinction between the wronged and wronging
party. The election of remedies must remain at the option of
the innocent party, and to that extent, the contract will be alive
but will be enforceable if at all, only by the originally non-
defaulting party on such terms as to compensation as a court of
equity may prescribe.
CASES JUDICIALLY CONSIDERED
APPLIED:
Dobson v. Winton & Robbins Ltd., [1959] S.C.R. 775; 20
D.L.R. (2d) 164; Public Trustee v. Pearlberg, [1940] 2
K.B. 1 (C.A.); Johnson y Agnew, [1979] 1 All ER 883
(H.L.).
NOT FOLLOWED:
Dobson v. Winton & Robbins Ltd. (1958), 14 D.L.R.
(2d) 110 (Ont. H.C.).
DISTINGUISHED:
Frost v. Knight (1872), L.R. 7 Exch. 111.
CONSIDERED:
Howard v. Pickford Tool Co. Ld., [1951] 1 K.B. 417
(C.A.); Goldenberg et al. v. Lieberman, [1951] 2 D.L.R.
584 (Ont. H.C.); Lyew v. 418658 Ontario Ltd. (1982),
134 D.L.R. (3d) 384 (Ont. C.A.).
REFERRED TO:
Lyew v. 418658 Ontario Ltd. (1982), 132 D.L.R. (3d)
472 (Ont. H.C.).
COUNSEL:
George R. Strathy for plaintiff (respondent).
Burton Tait and R. Geoffrey Newbury for
defendants (appellants).
SOLICITORS:
Campbell, Godfrey & Lewtas, Toronto, for
plaintiff (respondent).
R. Geoffrey Newbury, Toronto, for defend
ants (appellants).
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This is an appeal from a judg
ment of Mr. Justice Walsh [Beauchamp v. Coastal
Corporation, judgment dated January 23, 1985,
Federal Court, Appeal Division, T-2736-83, not
yet reported] awarding the respondent the sum of
$207,500 together with pre-judgment interest and
costs for repudiation of a contract for the sale of
the vessel Wayward Princess.
The Trial Judge's conclusions [at pages 34 to
41] were as follows:
I conclude ... that as of November 16, 1983 there was a
valid contract of sale which the purchaser wished to have
completed and had tendered payment in order to do so but
which the vendor refused to complete. The plaintiff was there
fore entitled on November 17, 1983 to institute proceedings as
was done seeking in the alternative specific performance or
damages for failure to complete the contract, and to seize the
Wayward Princess in rem.
The defendant no longer seriously disputes that there was a
valid contract for the sale of the vessel and in fact admits this in
its pleadings and by the fact that it tendered specific perform
ance. The defendant now seeks to hold the plaintiff to specific
performance as a result of the affidavit filed by the plaintiffs
counsel on February 23, 1984 stating that the plaintiff intended
to pursue its claim for specific performance. It is evident that
this affidavit was made as a matter of caution in view of the
fact that the defendant was disputing the jurisdiction of the
Court in rem over the vessel if the claim for specific perform
ance was removed from the proceedings and they became
merely an action for damages for breach of contract. It is
evident that the plaintiff merely wished to keep his options open
as he was entitled to do. The defendant's arguments at trial are
largely repetition of those made and dealt with in the various
motions to which reference has been made (supra). The judg
ment of Mr. Justice Strayer of March 26, 1984 [[1984] 1 F.C.
833 (T.D.)] found that the plaintiff was entitled to keep his
options open and that the defendant could not force the plain
tiff to make his choice in favour of specific performance by a
confession of judgment for this. Mr. Justice Strayer concluded
however that by refusing this, the plaintiff in effect indicated
an option to proceed for damages, and that is what is being
claimed in the present proceedings. He also found that the fact
that specific performance was no longer an issue did not remove
the matter from the jurisdiction of the Court. The defendant
now concedes the jurisdiction of the Court, but in connection
with the damages claimed in his cross-demand suggests that the
plaintiff had no right to maintain the seizure in rem after
March 9, 1984 when the confession of judgment for specific
performance was refused.
The defendant argues that the claim for damages is now only
against the defendant corporation and not against the vessel.
This may be so but the vessel is the sole asset of the corpora
tion. I know of no proposition in law nor was I referred to any
jurisprudence in point to the effect that, if an action once
commenced in rem over which the Court still has jurisdiction
becomes an action in personam then there is no longer any
right to hold the vessel itself even though the Court still has
jurisdiction over the subject-matter of the action.
The plaintiff was certainly within his rights in maintaining
the seizure in the absence of a bond and in not agreeing to ...
alternative suggestions.
Judgment will therefore be rendered in favour of the plaintiff
for $207,500 with interest at the legal rate from November 16,
1983 and costs.
The only events relevant to the appeal are those
of February and March 1984. In a letter to the
appellants' solicitor on February 2, in the course of
applying for a trial date, one of the respondent's
solicitors stated that his client would not proceed
with his claim for specific performance but would
ask the Court for damages only.
The appellants then brought a motion dated
February 15 inter alia to strike the respondent's
claim for specific performance. In response to that
application, one of the respondent's solicitors deliv
ered an affidavit stating that the respondent
wished to pursue his claim for specific perform
ance. The appellants' motion was dismissed on
February 28 by Madam Justice Reed [ [ 1984] 2
F.C. 511 (T.D.)], who took the position that such
issues should not be determined in a summary
fashion by way of interlocutory motion.
On March 7 the appellants filed a motion for
judgment against themselves for specific perform
ance and a confession of judgment for specific
performance, without any abatement of purchase
price, and on the same day advised the respondent
by letter of their intention to tender on March 9
the documentation required to complete the pur
chase and sale. On March 9 the appellants' solici
tors tendered documents on the respondent's solici
tors purporting to close the agreement. The
respondent's solicitors did not accept the tender.
The appellants' motion for specific performance
and the respondent's cross-motion for judgment
for damages were dismissed by Mr. Justice Strayer
on March 26 [[1984] 1 F.C. 833 (T.D.)]. The
relevant part of his reasons for this order is as
follows [at pages 836-837]:
Conclusions
I have reached the following conclusions.
1. I accept that the plaintiff is entitled to plead in the
alternative as he has done, seeking either specific perform
ance or damages. See Dobson v. Winton and Robbins Lim
ited, [1959] S.C.R. 775; Widrig v. Strazer et al., [1964]
S.C.R. 376; Johnson et al. v. Agnew, [1980] A.C. 367
(H.L.).
2. I also accept that plaintiff is entitled, though he may have
pursued specific performance even as far as obtaining judg
ment for that remedy, to elect later instead for damages if
specific performance has in fact not been carried out. (See
the cases cited above.) The election is his and a defendant
cannot force him to choose specific performance alone as the
defendants have tried to do here. For that reason I am
dismissing the defendants' application that a judgment for
specific performance be entered against them.
3. I have found no authority, however, for the converse
proposition that a plaintiff may first elect damages and then
later seek specific performance, and I do not think it is sound
law. The reason one may first elect specific performance and
later elect damages is that specific performance is based on
the continued existence of the contract. So specific perform
ance having failed, the plaintiff can at that time repudiate
the contract and seek damages instead. But if he has first
clearly elected for damages, in my view he cannot later claim
specific performance because the election for damages
amounts to a repudiation of the contract which cannot later
be revived to sustain a claim for specific performance. As
explained in Sharpe, Injunctions and Specific Performance
(1983), paragraphs 776-777:
Where the promisee decides to claim damages, he is said
to "accept the breach". His election is to treat the contract
as having been broken at the point of breach and in effect,
to discharge the promisor from any further contractual
obligation other than to pay damages.
The accepted position is that subsequent insistence upon
specific performance is inconsistent with the acceptance of
the promisor's breach. The effect of acceptance, or the
assertion of a damages claim, is to discharge both parties
from further performance, and hence, specific perform
ance is no longer possible.
I have concluded therefore that while the defendants cannot
force the plaintiff here to accept specific performance, the
plaintiff has by opposing a judgment in his favour for specific
performance and by applying at the same time for judgment
for damages has in the clearest possible way indicated that
he has chosen to treat the contract as repudiated by a
fundamental breach.
The only remedy left to him is damages. Even if this were
not the position at law, this would be an obvious case for the
equitable discretion to be exercised against a grant of specific
performance.
An appeal was initially brought but was subse
quently abandoned.
The principal issue pressed by the appellants in
oral argument related to the effect of their tender
of March 9, which they contended "cured" their
original failure to complete on November 16.
More fully stated, the appellants' argument is that,
there having been no election by the respondent to
retract the claim for specific performance, the
contract was still open for completion, on the basis
of the general contract principle that where a
party continues to treat a contract as outstanding
and is seeking its performance, the other party
may proceed to perform his part of the bargain;
the respondent's refusal to complete was a
repudiation of the contract, which until that time
had continued to exist; in this situation it was then
the respondent rather than the appellants that was
in breach of contract, and the appellants were
entitled to sue for damages for this breach.
The respondent argued that this issue as to the
effect of the tender of March 9 was considered and
decided in precise terms by Strayer J. and that,
since his decision was not appealed, the issue is
now res judicata. This is a not inconsiderable
argument, but because of the general desirability
of leaving substantive issues as open as possible
pending trial, I prefer not to decide the case on this
narrow ground but rather to deal with it in the
broader terms in which it was argued by the
appellants.
In support of their contention the appellants cite
the following passage from Halsbury's Laws of
England, 4th ed., Vol. 44, page 383.
561. Election between remedies. A plaintiff claiming specific
performance or damages in the alternative may before the trial
elect to accept the repudiation of the contract by the defendant
and abandon the claim to specific performance, by com
municating his election to the defendant or by other acts
showing an unequivocal election to terminate the contract. The
right of election will cease, however, if the defendant remedies
the breach before the plaintiff accepts the repudiation and the
defendant is able and willing to perform his part of the con
tract....
The case relied on by Halsbury for the effect of
remedying a breach of contract is Frost v. Knight
(1872), L.R. 7 Exch. 111, at page 112. However,
the reference in that case to keeping the contract
alive for the benefit of the other party as well as
for his own is strictly related to an anticipatory
breach of contract, where the promisee's decision
to treat the breach as inoperative has the effect of
keeping the contract alive until its original date of
completion. It has no precedential value for a case
of actual breach of contract as here.
The appellants also rely on a statement in
Robert J. Sharpe, Injunctions and Specific
Performance, Toronto, 1983, at pages 398-399:
The other option is to insist upon further performance. This
usually involves suing for specific performance, but a similar
issue arises where the innocent party is able to perform his side
of the contract without further co-operation from the repudiat
ing party other than payment. The effect of suing for specific
performance is to keep the contract alive. The obligation to
perform remains for both parties, and certain important
implications follow. The promisee must remain ready, willing
and able to complete his side of the contract .... If the
innocent party does choose to keep the contract alive, he must
take care not to put himself in breach by failing to meet his
own obligations. In the often-quoted language of Asquith, L.J.:
"An unaccepted repudiation is a thing writ in water and of no
value to anybody: it confers no legal rights of any sort or kind."
The risk the promisee takes in keeping the contract alive,
although usually slight, is that he keeps the contract alive for
both parties, and if subsequent events arise which excuse the
defendant from performing, the defendant will be excused
despite his earlier breach .... Similarly, the innocent party
who decides to pursue performance must himself be careful to
avoid committing an act which will put him in breach of the
sort to excuse performance by the defendant, as the contract is
said to be alive for all purposes.
The quotation from Asquith L.J., which was
much used by counsel for the appellants, is from
Howard v. Pickford Tool Co. Ld., [1951] 1 K.B.
417 (C.A.), at page 421, a case in which the Court
refused to entertain a claim for a declaration that
a six-year contract for personal services of the
plaintiff had been repudiated by the conduct of the
defendants since the fact that the plaintiff was
continuing to perform his part of the contract in
the particular situation rendered the problem
academic.
The other authority relied upon by Sharpe, in
addition, to Frost v. Knight, supra, was Golden-
berg et al. v. Lieberman, [1951] 2 D.L.R. 584
(Ont. H.C.), at page 586, where McRuer C.J.H.C.
declared:
Where a plaintiff sues for specific performance with an alterna
tive claim for damages it is always open to a defendant at any
time before judgment to accept the plaintiff's election to treat
the contract as subsisting and himself elect to carry it out,
thereby relieving him of any liability on the alternative claim
for damages.
Although I reserve for a moment whether a suit
for specific performance can be said to be an
election for any purpose, and although this state
ment is in any event an obiter dictum, nevertheless
I believe the meaning of the distinguished Chief
Justice is clear and must be treated with respect.
McRuer C.J.H.C. in fact repeated his views, again
by way of an obiter dictum in Dobson v. Winton &
Robbins Ltd. (1958), 14 D.L.R. (2d) 110 (Ont.
H.C.), at page 112:
The plaintiff by his pleading came into Court stating that he
was ready and willing to carry out the contract. The defendant
might have at any time elected to abandon its defence and
carried out the contract. In that case the plaintiff would have
been entitled to his costs and any damages sustained by reason
of the delay in carrying out the contract.
The same view was expressed by Reid J. in Lyew v.
418658 Ontario Ltd. (1982), 132 D.L.R. (3d) 472
(Ont. H.C.). However, this latter decision was
reversed by the Ontario Court of Appeal at
(1982), 134 D.L.R. (3d) 384. Lacourcière J.A.
said for the Court [at page 384]:
The summary judgment is based on the proposition that a
plaintiff who claims specific performance is subject to specific
performance at any time that the defendant elects to submit to
it. We do not accept that proposition as clear law: see Dobson v.
Winton & Robbins Ltd., [1959] S.C.R. 775, 20 D.L.R. (2d)
164, particularly at p. 781 S.C.R., p. 168 D.L.R., which casts
some doubt on the dicta relied upon by the Motions Court
Judge. Accordingly, the matter should proceed to trial where
the matter will be determined on all of the equities.
The Dobson case cited by the Ontario Court of
Appeal, which was the appeal from the judgment
of McRuer C.J.H.C. supra as affirmed by the
Ontario Court of Appeal, is the authority most
directly on point. It was an action for specific
performance of an agreement for the sale of land,
which the purchaser has repudiated. Because the
vendor closed another transaction for the sale of
the same land to a third party while the trial was
pending, the question was whether the vendor, by
selling as he did, could go on with a claim for
damages and whether his pleading was adequate
for this purpose. The dismissal of the claim for
damage by McRuer C.J.H.C. was reversed by a
unanimous Supreme Court [[1959] S.C.R. 775; 20
D.L.R. (2d) 164]. Judson J. wrote for the Court
(at pages 779-781 S.C.R.; 166-168 D.L.R.):
The plaintiffs common law right of action on the facts of
this case, as found by both Courts, is clear. On the purchaser's
repudiation of the contract, the vendor could have forfeited the
deposit and claimed for loss of bargain and out-of-pocket
expenses. The Judicature Act gives him the right to join this
claim with one of the specific performance. At some stage of
the proceedings he must, of course, elect which remedy he will
take. He cannot have both specific performance and a common
law claim for loss of bargain. But he is under no compulsion to
elect until judgment, and the defendant is not entitled to
assume that by issuing the writ for specific performance with a
common law claim for damages in the alternative, the vendor
has elected at the institution of the action to claim specific
performance and nothing else ....
The judgment at trial is based in part upon the proposition
that a claim for specific performance must be deleted by
amendment before the alternative claim for damages for breach
of contract can be considered. The foundation for this theory
must be that by issuing a writ for specific performance the
plaintiff has elected this remedy and that no other is open to
him. Hipgrave v. Case, is cited in support of this principle and
the plaintiffs action has failed in this case largely because of
the construction which the Courts have put upon that decision
The case, however, is not authority for any principle that by
issuing a writ for specific performance with an alternative
common law claim for damages, the plaintiff has elected his
remedy and is bound by the election. If the claim for specific
performance alone is made, that constitutes an affirmation of
the contract and, to that extent, an election to enforce the
contract. But where the alternative common law claim is made,
the writ is equivocal and there is no election. The distinction
was clearly pointed out by Luxmoore L.J. in Public Trustee v.
Pearlberg. The matter is summarized in Williams on Vendor
and Purchaser, 4th ed., p. 1054, as follows:
Thus, if a purchaser of land makes default in carrying out
the contract, and the vendor sues to enforce it specifically, it
will be a good defence that the vendor has subsequently
made some sale or other disposition of the land, which
effectually prevents him from completing the contract. This
would be no defence to a claim by the vendor for damages
for the purchaser's breach of contract.
As the Supreme Court here indicates, the theory
espoused in the Dobson case by McRuer C.J.H.C.
and in the instant case by the appellants is that a
claim for specific performance amounts to an elec
tion of that remedy. The Supreme Court strongly
rejects this proposition. The claim for specific
performance in the present case, even as reaf
firmed in February 1984, is, therefore, not an
election of that remedy alone. It was always
accompanied by the alternative claim for damages.
Further, the effect of bringing an action for
specific performance is not, as the appellants con
tend, to retain the contract in effect and enforce
able at any time at the instance of either. The
bringing of such an action with an alternative
claim for damages invokes the jurisdiction of the
Court to enforce the contract, if it can be equitably
enforced, and otherwise to award damages for its
breach. If the contract can be equitably enforced it
is for the Court to determine when and on what
terms it is to be completed and what adjustments
are to be made for losses resulting from the
breach. Thus in Public Trustee v. Pearlberg,
[1940] 2 K.B. 1 (C.A.), at page 19, a case referred
to by Judson J. in the Dobson case, Luxmoore L.J.
observed:
Where (as in the present case) time for completion is not of the
essence of the contract, it is always open to a vendor to fix a
reasonable time for completion and so make time of the
essence, but where a vendor starts an action for specific
performance it appears to me that the issue of a writ is
equivalent to a notice to the purchaser that he must complete
his purchase at a time which will be fixed by the Court if the
vendor succeeds in his action. Having given notice of this fact it
seems to me to be impossible, while the action is pending, for
the vendor to fix some other and shorter time for completion
under some provision of the contract. [Emphasis added.]
In Johnson y Agnew, [1979] 1 All ER 883
(H.L.), at page 894, Lord Wilberforce wrote:
A vendor who seeks (and gets) specific performance is merely
electing for a course which may or may not lead to implementa
tion of the contract; what he elects for is not eternal and
unconditional affirmation, but a continuance of the contract
under control of the court which control involves the power, in
certain events, to terminate it. If he makes an election at all, he
does so when he decides not to proceed under the order for
specific performance, but to ask the court to terminate the
contract (see the judgment of Greene MR in Austin of East
Ham Ltd v Macey) [[1941] Ch 338 at 341].
It seems to me to follow that until the innocent
party makes an unequivocal election against spe
cific performance the effect of his having claimed
it and of having asserted his readiness, willingness
and ability to perform the contract cannot be, as
the appellants contend, to retain the contract as in
effect for all purposes and enforceable at the
instance of either party. That would deprive the
innocent party of his election, which he alone has
as the result of the other party's original default.
As the election to forego specific performance in
favour of damages can be made at any time during
the litigation, it existed and was exercisable at the
moment when the appellants made their tender of
performance, if indeed the respondent's equitable
right to specific performance had not already been
irrevocably foregone by what had occurred earlier
when the letters of January 5, 1984 and February
2, 1984 (pages 143 and 145 of the case) were
written. Persisting in keeping the claim for specific
performance in the statement of claim is itself of
little significance. It asks for the relief but the
claim can be withdrawn at any moment. If a
tender of performance by the party in default
could cure his breach he would have, simply
because of a claim for specific performance, after
breaking the contract, as much right to enforce it
as the innocent party has. Even if, as with McRuer
C.J.H.C. in the Dobson case [at page 112], the
innocent party were allowed "his costs and any
damages sustained by reason of the delay in carry
ing out the contract" he would still be allowed only
the specific performance option and not the right
to withdraw the claim and take his alternative
common law remedy of damages.
This would not be equity, because it would not
be fair, in relation to a contract of which time was
of the essence, to abrogate the distinction between
the wronged and the wronging party. The election
of remedies must remain at the option of the
innocent party, and to that extent, the contract
will be alive in an unequal way, or, more accurate
ly, it will remain alive but will be enforceable if at
all, only by the originally non-defaulting party on
such terms as to compensation as a court of equity
may prescribe.
The other points raised by counsel for the appel
lants were dealt with at the hearing and counsel
for the respondent was not called on to answer
them.
The appeal accordingly fails and I would dismiss
it with costs.
THURLOW C.J.: I agree.
MAHONEY J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.