LANE J.A. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 205 Date: 20050502 Docket: QBG2393/2001 Judicial Centre: Regina BETWEEN: N.M. PATERSON SONS LIMITED and DARYL LOWENBERG Counsel: M.W. Froese for the plaintiff G. Schmidt for the defendant JUDGMENT KYLE J. May 2, 2005 [1] The plaintiff is in the business of buying and selling grain. The defendant is farmer in the Grenfell, Saskatchewan, district. [2] After calling several times to determine the market price for flax the defendant agreed to sell to the plaintiff 300 metric tonnes of flax at a net price of $264.65 per tonne. This occurred on June 25, 2001. The defendant had previously delivered to the plaintiff’s elevator 2.043 tonnes of flax which were applied to the contract leaving 297.957 tonnes undelivered. That amount was to be delivered during the rest of June or July, 2001. [3] While the defendant at trial denies that such contract was reached, do not believe him. His demeanour was evasive and his subsequent behaviour was consistent with the contract having been reached. [4] The plaintiff’s agent, Rudy Lepp, was accompanied by his regional supervisor when the contract was made. Both testified. The quantity was substantial and it is not surprising that both have clear recollection of the event. The defendant stopped calling for prices after the contract was made. [5] During the week of July 2, 2001, the defendant attended at the plaintiff’s elevator in Grenfell, Saskatchewan, and acknowledged the terms of the contract. [6] When Mr. Lepp called the defendant on July 19 to advise that he had adequate space to take delivery of the flax he was told that the defendant would not deliver the flax. The market price had risen substantially by that time. [7] The defendant did not deliver the balance of the flax before August, 2001, or at any time and he is therefore in breach of the contract. [8] I find that a verbal contract was in force from the time the telephone conversation ended on June 25, 2001. Had the price dropped, the plaintiff would have sustained loss. As the price rose the plaintiff would have profited by $36.50 per tonne which is the loss of profit upon which the plaintiff’s claim is based multiplied by 297.957 and totals $10,875.43. [9] The plaintiff also claims an administrative fee of $10.00 per tonne which, while it may be customary, has not been proven or explained to my satisfaction and will not allow it. [10] The defendant has advanced the argument that The Sale of Goods Act, R.S.S. 1978, c. S-1, requires some writing to support a contract such as this, however, the part performance involving the sale under the contract of 2.043 tonnes is sufficient to meet the requirements of the Act. [11] document was created to record the sale but as it was never completed by the defendant who denies even receiving it, it has no effect on the contract. [12] The plaintiff will have judgment for the sum of $10,875.43, together with pre-judgment interest from August 1, 2001, and its costs of this action which was tried in summary way under Part 40 of the Rules of Court.
The plaintiff is in the business of buying and selling grain. The defendant is a farmer. After calling the plaintiff several times to determine the market price for flax, the defendant agreed to sell the plaintiff 300 metric tonnes of flax of which 297.957 tonnes remain undelivered. HELD: 1) The defendant did not deliver the balance of the flax before August, 2001 or at anytime and he is in breach of the contract. 2) The verbal contract was in force from the time of the telephone conversation ended in June 2001. As the price rose, the plaintiff would have profited by $36.50 per tonne. That is the loss of profit that the plaintiff's claim is based on multiplied by 297.957 and totals $10,875.43. 3) The part performance involving the sale under the contract of 2.043 tonnes is sufficient to meet the requirements of The Sale of Goods Act.