Casden v. Cooper Enterprises Ltd.
A-510-90
Linden J.A.
8/2/93
23 pp.
Appeal from Trial Division decision ((1990), 34 F.T.R. 241) dismissing action for breach of contract -- Appellant alleging defects in construction of 60-foot yacht built by respondents-Trial Judge ordering vessel to be completed, sea trialed and delivered to appellant -- Amount of $30,000 paid into Court by appellant pursuant to order -- Sales of vessels held to be covered by British Columbia Sale of Goods Act in United Kingdom and Canada-Contract herein contract for sale of goods -- Act applicable to contract for construction and sale of vessel -- Appellant not permitted to terminate contract on March 9, 1989, date of commencement of action in Trial Division, on basis of anticipatory breach of contract by respondents -- Latter seeking to put vessel into proper condition before trial -- Breach by respondents not inevitable when appellant commenced action -- Whether implied conditions in Sale of Goods Act breached by respondents -- Vessel not delivered prior to commencement of action -- Statutory conditions of Sale of Goods Act not yet applicable -- Act, s. 17 dealing with sale by description -- No specific terms described in contract between parties adding anything to obligations of seller under s. 17 -- Description in contract creating both common law duty and statutory duty -- Vessel not found to not correspond with description -- Trial Judge finding no violation of Act, s. 18 as to fitness of vessel -- Appellate courts' ability to interfere in finding of fact limited to palpable and overriding error affecting Trial Judge's assessment of facts -- Finding of fact on fitness of hull supported by sufficient evidence -- Court should not interfere with finding voids on subject vessel filled by method commonly used in industry -- Trial Judge not lacking evidence, expert or otherwise in overcoming concerns raised by appellant -- No palpable or overriding error by Trial Judge in finding of reasonable fitness -- Courts having placed stringent demands on sellers under implied condition of merchantability -- Concept of merchantability must adjust to circumstances of each case -- Act, ss. 18(a),(b) different provisions to be considered separately -- No violation of s. 18(b) on findings of fact herein -- No false representation in telling appellant vessel Huntingford design -- No fraudulent intent to mislead anyone by respondent -- Latter found by Trial Judge to be credible witness -- No basis for interference with finding representations made before signing of contract not deliberately fraudulent -- No award of damages as no finding of breach of contract -- Appeal dismissed -- Sale of Goods Act, R.S.B.C., 1979, c. 370, ss. 17, 18.