Q.B.G. A.D. 1995 No. 260 J.C.B. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: PETER CHOBOTAR PLAINTIFF (DEFENDANT BY COUNTERCLAIM) and MARIE CHOBOTAR, GLEN CHOBOTAR, EDWARD CHOBOTAR, each in their personal capacity, and MARIE CHOBOTAR and GLEN CHOBOTAR in their representative capacity as Executors of the Estate of GEORGE NICHOLAS CHOBOTAR, late of Buchanan, Saskatchewan, Farmer, Deceased DEFENDANTS (PLAINTIFFS BY COUNTERCLAIM) R.M. Peet for Peter Chobotar R.A. Gibbons for all defendants (except Edward Chobotar, who did not appear and was not represented) JUDGMENT BAYNTON J. November 7, 1996 Peter sues his father\'s estate for damages forbreach of a farm lease and for the value of his farm labour. The estate counterclaims for a mortgage debt incurred by thefather on behalf of Peter. ISSUES The issues raised by the pleadings and at the trial of this case are: (a)Is there valid lease agreement between the plaintiff and his deceased father? (b)If so, was the lease repudiated by Peter? (c)If the lease is valid, is Peter estopped from suing on it? (d)What is the quantum of Peter's damages, considering his alleged failure to mitigate? (e)Is Peter entitled to reimbursement from the estate on quantum meruit basis for the value of his farm labour, and if so what is the quantum of his claim? (f)Does Peter owe debt to the estate of $17,800.00 (with interest) that was paid by his deceased father to clear his land titles that were mortgaged on Peter's behalf? FACTS Peter's breach of lease claim is based on an unsigned lease memorandum. It was written out by his father on the back of an envelope in the spring of 1993. copy was given to Peter and his father kept copy. The agreement gave Peter the right to farm two quarters of his father's land in 1994 with his father's farm machinery. In return, Peter was to give his father one-third of the crop harvested, was to pay $1,000.00 for the use of the machinery, was to do some summer fallowing in 1993, and was to pay for some diesel fuel his father had on hand. Peter's labour claim is quantum meruit claim for the value of his labour in 1993 in performing farming operations for his father. Peter is farm labourer and has for several years helped with his father's farming operation. The deteriorating health of the father required him to seek more assistance each year with the farm. He was helped by his other sons as well but the help came primarily from Peter. The sons were paid meagre amounts from time to time for expenses but they contributed their time primarily to assist their father rather than with the expectation that they would be fully reimbursed for their efforts. In the mid eighties Peter acquired some farm land of his own. His father assisted him by granting the lender, Bank of Montreal, collateral mortgage on his own land. Peter was not able to meet the financial obligations of the loan and in 1989 his father was required to remortgage his land to Farm Credit Corporation for $17,800.00. He did this to raise $17,500.00 required by the Bank of Montreal for release of the father's land from the bank's foreclosure. Through the foreclosure Peter lost his investment in the land he had purchased. The father never made claim against Peter to repay the $17,800.00. This amount with interest has been claimed by the estate from Peter by way of counterclaim in Peter's action. The father died in November 1993. Prior to his death, he showed the handwritten memorandum on the envelope to Elsie Lamber, one of his daughters, and acknowledged to her that Peter would be farming the father's land the following year. Peter did not farm the land in 1994 as it was farmed by Glen, one of the executors, on behalf of the estate. Peter did not vigorously pursue his right to farm under the lease assuming from the position taken by the executors that it would be pointless to do so. Peter was not included in his father's will as beneficiary of the estate. The will contained no reference to the $17,800.00 mortgage amount. The father's statement of assets filed in his divorce and matrimonial property action did not disclose it as an asset. Nor was it shown as an asset of the estate in the statement of assets filed in connection with the probate application. ANALYSIS OF THE EVIDENCE a. The Memorandum of Lease I am satisfied that the unsigned handwrittenmemorandum evidences a binding agreement for lease betweenPeter and his father. It sets out the terms with sufficient particularity to be enforceable. In any event, it is not the terms of the lease that are in dispute. The father considered the document to be lease. He kept a copy of it on hisperson and he showed it to his daughter, Elsie, when he stayedwith her for a week shortly before he died. He in effectaffirmed the lease in his discussions with her, saying Peterwould be farming the land in 1994. It is odd that the executor, Glen, denies any knowledge of the handwritten document even though he was told of it at the farm in March 1994 by Elsie Lamber. His brother, Alex, was present and testified that he cannot say whether he heard the conversation with Elsie. accept the evidence of Elsie. As residual beneficiary of the estate, she stands to lose if the lease is upheld. The lease was performed in part when Peter did some of the summer fallowing and paid for some of the diesel fuel. Although Peter voluntarily and without expectation of payment contributed his labour from time to time to help his ailing father, it is not feasible that he would take on what he agreed to do under the lease without being paid some remuneration or share of the crop. Nor is it feasible that he would pay his father for fuel if he was doing the farm work for his father without compensation. b. Repudiation of the Lease The estate maintains that Peter had fight with his father and abandoned the lease. It is also submitted that Peter breached the lease by not doing the summer fallowing properly. The weight of the evidence on this issue is to the contrary. The relationships in the family were stormy at times and find that the father, in the heat of an argument, arbitrarily and without justification repudiated the agreement. Had he remained alive in 1994, he likely would have permitted Peter to complete the lease. Peter also testified that he did not want to upset the precarious health of his father by fighting with him so he withdrew from the land hoping his father would subsequently change his mind and let him farm. Although both Peter's brother, Alex, and Glen, one of the executors, testified that the summer fallow was covered with high weeds, this is inconsistent with the examination for discovery evidence of Glen. I find that Peter neither repudiated the lease norfailed to complete his obligations under it. Estoppel It is suggested by the estate that Peter is estopped from enforcing the lease as he did not oppose the farming of the land in 1994 by the executors of the estate. I find inthe circumstances that the fact Peter did not vigorouslycontest the right of his brother to farm the land on behalf ofthe estate does not estop him from suing the estate fordamages for his father\'s breach of the lease. accept the evidence of Peter and Elsie over that of Glen that the estate was aware of Peter's lease prior to putting in the crop in 1994. To avoid confrontation, Peter did nothing hoping that he would be fairly treated by the estate. d. Quantum of Damages for Breach of Lease Understandably, the evidence as to the quantum of damages leaves much to be desired, but the court must do the best it can to assess those damages. There was conflicting evidence as to most of the components making up the damage claim for what could reasonably have been realized in 1994 from Canola crop grown on the land, including yield, quality, sale price, and the costs of putting the crop in and taking it off. Obviously the plaintiff is only entitled to the net return he would have realized had he farmed the land in accordance with the lease in 1994. This involves assessing not only the gross return he would likely have received but as well the input expenses he likely would have incurred. In the rather peculiar circumstances of this case, Peter could likely have mitigated his damages somewhat had he been more forceful in asserting his claim against the estate. He never showed the agreement to Glen until July of 1994 when it was too late to let Peter farm the land. Nor did he raise the matter when the will was read. Even though he is not estopped from bringing his claim, any doubt about the accuracy of his forecast of damages should be determined in favour of the estate. The plaintiff submitted written calculation showing that his damages represented his loss of net profit of $10,984.00. Based on the evidence heard, the calculation overestimates the gross return and underestimates the input costs. conclude that his net return would have been approximately $6,216.67 calculated as follows: Gross Return 140 acres 20 bushels per acre at $7.00 (No. 1) $19,600.00 Less 1/3 crop to father 6,533.33 Less $1,000 equipment rental to father 1,000.00 Less balance of fuel purchase owed to father 250.00 Gross return to Peter 11,816.67 Input Costs Peter's input costs (@ $40.00 per acre) 5,600.00 Net Return Peter's estimated net return 6,216.67 In arriving at these amounts, have considered Peter's testimony that he would have realized 24 bushels to the acre at $8.00 per bushel, and that his input costs (excluding fuel for harvest) would be $30.00 $35.00 per acre. Against this is Alex's testimony, an experienced farmer, that although Canola crop usually yields 25-30 bushels per acre in the area, yields were down for 1994. His estimate was 12-15 bushels per acre. He also testified that much of the Canola crop grown in the area in 1994 was graded down to No. or even to sample. He estimated input costs (excluding harvesting) to be $40.00-$45.00 per acre. I fix Peter\'s damages at the rounded figure of$6,500.00. e. Quantum Meruit Claim The plaintiff has not proven that he is entitled to be reimbursed for his farm labour expended on behalf of his father in 1993. He was not able to produce any documents toshow that he had been reimbursed for his contributions inprior years. Nor was he able to produce any independent evidence to establish an understanding between his father and himself that he was to be paid for helping out on the farm. Other family members as well helped the father farm from timeto time due to his ailing health and advancing age. Even the plaintiff\'s own evidence does not establishhis quantum meruit claim. By his own conduct he did nothingwhile his father was alive to demand or obtain payment. One of the aspects of claim in the nature of an amount due for wages or labour (as contrasted with debt or other similar obligation payable at future time) is that payment is normally made during, or immediately following, the provision of the services. If there was an understanding that Peter was to be paid, it is odd he would not have demanded payment at least prior to his father's death which occurred months after the labour had been performed. It is clear from the questions and answers read in from his examination for discovery that he performed the services out the "goodness of his heart" for his ailing father because there was no one else to help him. He testified that his father had never paid him over period of some nine years, that he did not expect to be paid, and that he never sent his father bill for his labour. However once he learned that he, unlike most of his brothers and sisters, were not included in his father's estate, he felt he was entitled to some compensation for his labour. The quantum meruit claim is accordingly dismissed. f. Foreclosure Debt am not satisfied that the $17,800.00 mortgage granted by the father in 1989 to Farm Credit Corporation to obtain funds to clear his land from the Bank of Montreal mortgage foreclosure is debt owed the estate. The father's initial mortgage of his land to the Bank of Montreal was not to secure loan to Peter. The father simply put up his land as additional security so that Peter could get the loan to acquire his own land. Nor did the father redeem the Bank of Montreal mortgage to salvage his land. Instead he remortgaged the land to Farm Credit Corporation (a mortgage which still remains on his titles) to raise the funds required to discharge the bank mortgage from his land. Although he likely could have taken action against Peter to recover this amount, it is clear that he never did so. The estate counterclaims on the basis that Peter agreed to repay this amount (and interest) and that payment has been demanded of him from time to time by his father. Yet there is no evidence of any document or agreement to support this claim. In fact the examination for discovery evidence of Peter's sister, Marie, who is one of the executors of the estate, is that her father never mentioned any debt to her even though she discussed his affairs with him on various occasions prior to his death. Likewise the examination for discovery evidence of Glen, the other executor, is that he knew of no agreement whereby Peter had agreed to pay the alleged debt. He in fact testified that he knew Peter had never agreed to repay the amount. Nor is there any evidence of conduct on the part of Peter or his father to indicate that they considered the $17,800.00 (and interest) as debt due and owing. On the other hand, there are several indications inthe conduct of Peter and his father that even if the amountwas considered as a debt in 1989 it was subsequently forgiven. It is significant that Peter continued to help his father on the farm for several years without any reimbursement other than for expenses. It is also significant that Peter was notincluded as a beneficiary of his father\'s will made on April22, 1993. The estate farm land is valued at $57,050.00 and was left to three beneficiaries equally. On this basis, the value of their respective shares would be $19,016.67, an amount similar to the $17,800.00 alleged debt. Before, during, and after the date the father made his will, he was on good terms with Peter. Peter continued to help on the farm as he had done in previous years. It was also at this approximate time that the father granted Peter the lease of the land. The inference is that the father concluded that Peter had already received his share of the estate by way of the father's contribution to Peter's failed farm venture. No other reason has been suggested as to why Peter would have been cut out of the estate. It also significant that this substantial amount was not shown as an asset either on the father's financial statement in his divorce and matrimonial property action in 1993 nor in the statement of assets filed by the executors in support of their probate application. Glen testified that "he forgot about it" even though he also testified that he argued with Peter about the alleged mortgage debt on several occasions prior to his father's death. It was only after Peter commenced his claim that the $17,800.00 was alleged pursuant to the counterclaim to be debt due and owing by CONCLUSION For the reasons given, judgment shall issue as follows: 1.Peter suffered damages from his father's breach of the lease. 2.The quantum of the damages are $6,500.00. 3.Peter does not have an enforceable quantum meruit claim for the value of his farm labour in 1993 expended on behalf of his father. 4.The $17,800.00 mortgage (and interest) granted by the father to Farm Credit Corporation to raise the sum of $17,500.00 to clear his land from the Bank of Montreal mortgage is not debt enforceable by the estate against Peter. 5.Peter shall have his costs against the estate on a party andparty basis for that portion of his claim on which he wassuccessful and for defending the counterclaim. The issues raised by the claim and counterclaim are not typical "estate" issues. Solicitor and client costs against the estate are accordingly not appropriate. 6.It was agreed by the parties that judgment should not issue against the non appearing defendant, Edward Chobotar, nor against any of the other defendants personally. Judgmentshall issue only against Marie Chobotar, and Glen Chobotar intheir representative capacity as executors of the Estate ofGeorge Nicholas Chobotar, deceased.
The plaintiff sued his father's estate for breach of a farm lease and for the value of his farm labour. The estate counterclaimed for a mortgage debt incurred by the father on behalf of the plaintiff. The plaintiff was not included in his father's Will as a beneficiary and the Will contained no reference to the mortgage debt. The father's statement of assets filed in his divorce and matrimonial property action did not disclose it as an asset. HELD: 1)The unsigned handwritten memorandum evidenced a binding agreement for lease between the plaintiff and his father. He affirmed the lease in his discussions with a daughter. 2)The plaintiff neither repudiated the lease nor failed to complete his obligations under it.  The fact that he did not vigorously contest the right of his brother to farm the land on behalf of the estate did not estop him from suing for damages for his father's breach of the lease.  Damages of $6,500 were awarded. 3)The plaintiff failed to establish a quantum meruit claim. He did not produce any documents to show he had been reimbursed for his labour on the farm in prior years. Other family members helped with the farming from time to time. He did nothing while his father was alive to demand or obtain payment. 4)Even if the mortgage was considered a debt in 1989 it was subsequently forgiven. It was significant that the plaintiff was not included as a beneficiary and the amount of the mortgage was similar to the bequests to the other children. 5)The plaintiff was awarded his costs against the estate on a party and party basis for that portion of his claim on which he was successful and for defending the counterclaim. Solicitor and client costs against the estate were not appropriate as the issues raised by the claim and counterclaim were not typical estate issues. Judgment issued against the two executors in their representative capacity.