Supreme Court of Canada
Kelly Douglas & Company Limited v. Mutual
Leaseholds Limited, [1969] S.C.R. 952
Date: 1969-02-14
Kelly Douglas &
Company Limited (Defendant) Appellant;
and
Mutual Leaseholders
Limited (Plaintiff) Respondent.
1969: February 14.
Present: Cartwright C.J. and Abbott,
Ritchie, Hall and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
BRITISH COLUMBIA
Contract—Lease—Rectification of written
lease.
The respondent sued the appellant for a
portion of the rent accrued under a lease. The appellant counterclaimed for
rectification of the lease. The lease stipulated an annual rent of $12,000
“together with additional rent in a sum equal to the amount (if any) by which
one (1%) per cent of the annual gross sales of the business carried on by the lessee…
exceeds the said minimum annual rental…”. The expression “gross sales” is
further defined as meaning the appellant’s gross revenues less certain
deductions, including “… any amount paid by
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the lessee hereunder for taxes and insurance
premiums”. The appellant alleged that the true agreement between the parties
was that taxes and insurance premiums were to be deducted from one per cent of
gross sales rather than from gross sales. The trial judge dismissed the claim
for rectification. The Court of Appeal held that the appellant had failed to
adduce evidence of a prior concluded agreement in the terms alleged by it and
that the trial judge had reached the right conclusion. The appellant appealed
to this Court.
Held: The
appeal should be dismissed.
APPEAL from a judgment of the Court of Appeal for British
Columbia affirming a judgment of Nemetz J. Appeal dismissed.
R.P. Anderson, for the defendant,
appellant.
D.M.M. Goldie, for the plaintiff,
respondent.
At the conclusion of the argument of counsel for
the appellant, the following judgment was delivered:
THE CHIEF JUSTICE (orally for the Court):—Mr. Goldie,
we do not find it necessary to call upon you. Mr. Anderson has said
everything that could be said in support of this appeal and has done so most
persuasively; but we find ourselves unable to reverse the concurrent findings
of fact made in the Courts below.
The appeal is dismissed with costs.
Appeal dismissed with costs.
Solicitors for the defendant, appellant:
Boughton, Anderson, Dunfee & Mortimer, Vancouver.
Solicitors for the plaintiff, respondent:
Russell & Dumoulin, Vancouver.
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