Cite as: Eastern Building Centres Ltd. v. Transeastern Properties Ltd., 1991 NSCA 2 IN THE SUPREME COURT APPEAL DIVISION Jones, Hallett and Freeman, JJ.A. BETWEEN: EASTERN BUILDING CENTRES LIMITED, a body corporate Appellant - and - TRANSEASTERN PROPERTIES LIMITED, a body corporate Respondent THE COURT: Appeal dismissed with costs per oral reasons for judgment of Jone~, J.A.~ Hallett and Freeman, JJ.A. concurring S.C.A. No. 02248 OF NOVA SCOTIA David G. Coles for the appellant Michael J. Wood for the respondent Appeal Heard: February 4, 1991 Judgment Delivered: February 4, 1991
The reasons for judgment by: JONES, J. A. : This is an appe~l from for breach of contract. The appellant the respondent with windows respondent I s building at the corner of Argyle and Blowers Street in the City of Halfiax for $17,994.00. were specified by the architect unique design of the bui Iding. did not fit the specifications. construction delays the respondent and installed the windows. It trial judge allowed $1,971 for together with architectural fees no appeal regarding those items. In a 110wing for loss of judge stated: "There is no doubt that the loss is significant. The windows occupy a large portion of the face of the building which is sidewalk. The disproportionate is obvious to passers by, that whichever of the two is used, it could not be of $14,171.91 would be unreasonable. Nevertheless, I must consider that if I the full amount of replacement, could benefit in two ways. betterment in that the windows which are removed, may have value. Also, the plaintiff may not to make the renovations were delivered orally an assessment of damages agreed to supply to be installed in the The windows and were part of the The windows as delivered In order to avoid adjusted the framing sued for damages. The installing the windows of $1,386. There is the windows the trial in line with the aesthetics and I would consider measures of damage said that the sum awarded the plaintiff It could receive elect and simply retain
- 2 the cash. I suspect advantages would be offset in cost of replacement since estimate or the diminution of on whether the replacement there is any doubt on these points, it should not be the defendant who is for the plaintiff to claim to the court's satisfaction of these contingencies remain and for this reason, I am going to reduce this head of damage from $14,171.91 to $10,000." We agree with the appellant's this was a contract for the sale of of the Sale of Goods Act provides as follows: " ( 1 ) Where there is a breach the seller or where the compelled to treat any breach on the part of the seller warranty, the buyer is not such breach of warranty the goods, but the buyer may (a) set up against the of warranty, in diminution of the price: or (b) maintain an action for damages for the breach of warranty. (2) The measure of damages warranty is the estimated naturally resulting, in of events, from the breach of warranty. (3) In the case of breach quality, such loss is prima facie the difference between the value of the of delivery to the buyer would have had if they had answered the warranty. ( 4) The fact that the buyer breach of warranty, in diminution or extinction of the price, does not prevent maintaining an action for warranty if he has suffered further damage." that these apparent by the increase the date of the value, depending occurred. But if should suffer. It advance the damage and some unknown to me contention that goods. Section 54 of warranty by buyer elects or is of a condition as a breach of by reason only of entitled to reject seller the breach or extinction against the seller for breach of loss directly and the ordinary course of warranty of goods at the time and the value they has set up the the buyer from the same breach of
- 3 Essentially the appellant respondent failed to establish particular that it suffered any unable to agree. The principle assessment of damages was stated Sunnyside Greenhouses Ltd. v. 27 D.L.R. <3d) 434 at 438 as follows: "The principle there expressed a breach of an impled of purpose, where the buyer the circumstances of the case to seek his remedy in damages rather than is prima facie the amount of the full purchase price, subject to diminution value, if any, to the may be able to establish. panels alone are concerned, trial was directed to on this principle." No evidence was adduced to the residual value of the windows as installed. their unique design it is doubtful if they had any value. Having regard to the evidence damages as assessed by Davison, therefore the appeal is dismissed fix at $1,000.00. Concurred in: Hallett, J.A. Freeman, ,J.A. :-- / " ~ ,. - ,, " /r " . argues that the its damages and in financial loss. We are applicable on the by Clement, J.A. in Golden West Seeds Ltd. is that upon condition for fitness is compelled by rescission, the damage by such residual buyer that the seller In so far as the the evidence at assessment of damage by the appellant as Given we are satisfied that the J. were reasonable and with costs which we J.A.
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