Judgment of the Court — DE GRANDPRÉ J.
The judgment of the Court was delivered by
DE GRANDPRÉ J.—In my view, there is no substantive difference between the question raised by this appeal and the one answered today by this Court in Stendel v. Moidel and Lawrence[1].
Appellant is an electrical contractor who registered a privilege for the sum of $45,051.63 on January 25, 1967. As the general contractor, he contracted with the new purchaser of the immovable, Hôtel Président Inc., to perform various types of work, which he did under the very eyes of the seller Caplan (respondent Lawrence was trustee of the Caplan interests), who used his influence and credit to hasten completion of the work as much as possible. By his action, he is seeking inter alia recognition of his privilege, notwithstanding the cancellation of the sale obtained by the seller under the terms of a resolutory clause.
The Quebec courts refused to allow his action. Appellant submits that they erred, principally by failing to give sufficient weight to a letter written by Caplan to Meco on November 11, 1966:
In virtue of a letter dated the 14th July 1966 from Greenspoon, Freedlander, Plachta & Kryton, Architects which was subsequently followed by a work order dated the 29th July 1966 signed by the said firm, as well as by Mr. I. Kugiel of the LaSalle Hotel, you entered into an Agreement for the supply and installation of a complete indoor substation at the said hotel, the whole for a price
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Of FORTY-TWO THOUSAND AND TWENTY DOLLARS ($42,020.00), including special delivery charges.
Subsequently, you invoiced various smaller charges totalling THREE THOUSAND AND THIRTY-ONE DOLLARS AND SIXTY-THREE CENTS ($3,031.63).
I understand that of the total amount of FORTY-FIVE THOUSAND AND FIFTY-ONE DOLLARS AND SIXTY-THREE CENTS ($45,051.63) the sum of TWENTY THOUSAND SIX HUNDRED AND EIGHTY DOLLARS AND THREE CENTS ($20,680.03) is presently due and unpaid, while the balance of work and materials remains, for reasons well known to me, still to be supplied.
This will confirm our verbal understanding to the effect that you will proceed with all due diligence to complete this work, and that in consideration thereof, I will be bound jointly and severally with the debtor for the payment of the said full sum of FORTY-FIVE THOUSAND AND FIFTY-ONE DOLLARS AND SIXTY-THREE CENTS ($45,051.63); it is nevertheless understood, that you will not require payment of the said sum prior to the 25th January 1967.
In appellant’s view, this letter is much more favourable to his case than the note in question in Stendel.
I cannot share this opinion. Neither the joint and several obligation expressed in the letter nor the promise contained in the note is capable in itself of removing Caplan’s priority interest in the building. Moreover, the Quebec courts unanimously held that the record contained no evidence of a tacit renunciation on Caplan’s part of the ordinary effects of cancellation of the sale, namely the annihilation of all privileges caused to encumber the immovable by the purchaser. I see no grounds for intervention.
For these reasons and those expressed in Stendel, I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Tinkoff, Seal, Shaposnick & Moscowitz, Montréal.
Solicitors for the respondent: Lapointe, Rosen-stein, White, Lemaître-Auger & Konigsberg, Montréal.
Footnotes
- [1] [1977] 2 S.C.R. 256.