Brian Clunas v. Bobbie Jo Clunas, 2018 SKPC 59

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2018 SKPC 059 Date: October 12, 2018 File: 183/17 Location: Esterhazy _____________________________________________________________________________ Between: Brian Clunas and Bobbie Jo Clunas - and - Guenther Kreisle and Petra Kreisle Self-represented For the Plaintiffs/Defendants by Counterclaim Self-represented For the Defendants/Plaintiffs by Counterclaim ______________________________________________________________________________ JUDGMENT R.

GREEN , J ______________________________________________________________________________ I INTRODUCTION [ 1 ] This is a dispute about cutting and baling hay and about what happened to the bales produced. [ 2 ] The plaintiffs Brian and Bobbie Jo Clunas live near Russell, Manitoba. The defendants Guenther and Petra Kreisle live in Saskatchewan, near the Manitoba/Saskatchewan border and not far from the plaintiffs’ farm.

[ 3 ] In 2015, Mr. Kreisle came to the plaintiffs’ farm, and asked Mr. Clunas to cut and bale hay for him on the defendants’ land. The two men agreed that Mr. Clunas, with the help of his son, would cut and bale the defendants’ hay. The plaintiffs, in return, would receive two-thirds of the bales produced, and the defendants would receive one-third of the bales. [ 4 ] Mr. Clunas, with the assistance of his son, cut and baled hay on the defendant’s land in 2015, 2016 and 2017.

The plaintiffs claim that the defendants breached the agreement, by retaining 41 of the bales produced in 2016 and 2017, which belonged to them by virtue of the two-thirds/one-third split. They seek damages, as a result of this breach of contract, in the amount of $2,250.00 (41 bales at $55.00 per bale) which they say is the value of the bales wrongfully retained by the defendants. The plaintiffs do not seek return of the 41 bales, as Mr. Clunas said he does not believe they still exist, and I gather, regardless, that the condition of the bales may have deteriorated over time.

Indeed, while saying they took 30 and not 41 of the plaintiffs’ bales (for reasons I will soon outline), the defendants admit that only 10 of the bales they took from the plaintiffs’ share from 2016 and 2017 still exist. [ 5 ] The defendants deny that they owe anything to the plaintiffs.

That is because they say the plaintiffs violated their agreement by: (1) not taking a second cut of hay in 2016 and 2017; (2) not doing a satisfactory job in baling, by not producing the quantity of bales that the hay on their land should have produced; (3) entering onto their property to pick up their bales on September 11, 2017 without calling ahead by telephone to the defendants before attending; and (4) placing too high a value on the bales of hay involved.

The defendants, as well, counterclaim against the plaintiffs, seeking an order that they be allowed to keep 30 bales that they admit to taking from the plaintiffs share over 2016 and 2017, because of the breaches of contract they claim against the plaintiffs, albeit, as noted above, they say only 10 of the bales still exist. [ 6 ] There were four witnesses at the trial: Mr. And Mrs. Clunas, and Mr. And Mrs. Kreisle. Both Mrs. Clunas and Mrs. Kreisle wrote out, in advance, a detailed chronology of what they say happened between the parties (Exhibits P-1 and D-1).

While these chronologies were of assistance in understanding the position of both parties to the dispute, I am satisfied that the baling agreement was reached between Mr. Clunas and Mr. Kreisle, and that most of the critical discussions and actions in fulfilling the terms of the agreement were taken between these two men, although their spouses did observe some of the interaction between them and some of the actions taken towards performance of the agreement. [ 7 ] To say the least, there was much tension and acrimony between the parties at this trial.

Without doubting how stressful it can be for parties to appear in court and present and argue their case, I am left to decide this case on the evidence presented and the legal principles by which I am bound. In my view, the issues to be determined are:

(1) What was the agreement between Mr. Clunas and Mr. Kreisle?

(2) How many bales of the plaintiffs’ share did the defendants take? and

(3) What, if any, damages should the defendants pay to the plaintiffs for the bales they took? II WHAT WAS THE AGREEMENT BETWEEN MR. CLUNAS AND MR. KREISLE? [ 8 ] Mr. Clunas is 51 years of age. He has been cutting and baling hay since he was 14 years of age. Both Mr. and Mrs. Kreisle agreed that they had no experience in the practice of hay cutting and baling. [ 9 ] According to Mr. Clunas, in 2015, Mr. Kreisle drove into his yard. Mr. Kreisle said he was unhappy with the person or people who had been cutting and baling his hay in the past, and asked whether Mr. Clunas would take over doing this. Mr.

Clunas said he felt sorry for Mr. Kreisle, and he agreed to cut and bale Mr. Kreisle’s hay, with Mr. Clunas’s son helping, on the basis that Mr. and Mrs. Clunas would receive two thirds of the hay bales produced, and that Mr. and Mrs. Kreisle would receive one third of the bales. [ 10 ] Mr. Clunas said he never agreed to do a second cut of hay each year for the defendants. He said whether a second cut was taken would depend on a number of factors, such as the height of the regrowth of hay in the field, the condition of the field and, in particular, the weather conditions that year.

He said he agreed to take a second cut for the Kreisles in 2015, after he surveyed their fields and saw that the growth of hay was sufficient for a second cut. He denied any agreement to telephone the Kreisles before he attended at their property. [ 11 ] Mr. Kreisle testified that he and Mr. Clunas discussed the issue of taking a second cut when they first spoke in 2015. The two agreed that Mr. Clunas would take a second cut in 2015, which he subsequently did. Mr. Kreisle, however, said he thought Mr. Clunas was agreeing to taking a second cut every year. [ 12 ] I accept and find that Mr.

Kreisle was mistaken in that understanding. In addition to the denial by Mr. Clunas on this point, which I view to be credible, Mr. Clunas was the one witness at this trial with the experience and knowledge of when and how to cut and

bale hay. I accept that he made inquiries in both 2016 and 2017 to ascertain whether a second cut was possible on the Kreisle’s land. I do not accept that he would have taken these steps if he had agreed to take a second cut of the Kreisle’s hay every year, a second cut he said he did not take on his own land or the land of two other farmers he cut hay for in the years 2016 and 2017. [ 13 ] Mr. Kreisle, as well, said there was an agreement that the Mr.

Clunas would telephone ahead before attending to the Kreisle’s property, as the Kreisle had animals that needed to be tended to before others attended on their property. Mr. Clunas, as noted above, denied any such agreement, although he agreed that in the fall of 2016 he respected Mr. Kreisle’s request that the bales not be taken off the defendants’ land at that time by Mr. Clunas, given the wet condition of the field that fall. [ 14 ] Taken together, this was an oral agreement by which Mr. Clunas agreed to cut and bale hay on the defendants’ property.

In my view, such an agreement would make no sense, and would be unworkable, if Mr. Clunas was not free to attend upon the Kreisle property when he was able, to cut and bale the hay and to pick up his bales. While it is possible that Mr. Kreisle told Mr. Clunas about their animals, and while Mr. Clunas agreed in 2016 not to come onto their property to pick up the bales, I am not satisfied on the evidence at this trial that there was an ongoing agreement by Mr. Clunas to telephone the Kreisles in advance each time Mr. Clunas planned to come onto their property.

III HOW MANY BALES OF THE PLAINTIFFS ’ SHARE DID THE DEFENDANTS TAKE? [ 15 ] The plaintiffs claim the defendants took 41 of their bales for the years of 2016 and 2017. Mrs. Clunas, in her testimony, said that 92 bales were produced on the defendants’ land in 2016, which meant the plaintiffs would receive 61 bales in and the defendants would receive 31. Because Mr. Clunas agreed not to haul any bales off the defendants’ land in the fall of 2016, due to the wet conditions that fall, the plaintiffs returned in 2017 to discover that only 47 of their 61 bales remained.

This meant the defendants had taken 14 of the plaintiffs’ bales. [ 16 ] I note that the Mrs. Kreisle, in her statement (Exhibit D-1), which she adopted in her testimony, said at page 2 and under the heading of: “Hay production 2016": “Guenther took an additional 14 bales from the hayfield, like Brian had offered, to make sure the winter feed for the animals was enough”. While I am not certain, from the rest of the statement, exactly what they claim Mr. Clunas had offered, this statement, together with the evidence of Mrs.

Clunas, satisfies me that the defendants took 14 of the plaintiffs’ bales from 2016. [ 17 ] Regarding 2017, Mrs. Clunas said that it was a poor year for hay production, and, as a result, only 42 bales were produced, with 28 going to the plaintiffs and 14 going to the defendants. She said on August 30, 2017, Mr. Kreisle came to their farm and offered to buy the plaintiffs’ share of these bales. Mr. Clunas said he would sell the bales to Mr. Kreisle for $55.00 a bale, but Mr. Kreisle was angry with this offer, and departed. Then on September 8, 2017, Mr.

Clunas and his son Dawson went to the defendants’ farm and counted the bales. There, they discovered that the defendants had taken an additional 31 from the group of bales which belonged to the plaintiffs, a group which included their bales remaining from 2016 and their bales from 2017. Despite the defendants’ position at trial that they took, in total, only 30 bales from the plaintiffs’ share for 2016 and 2017, I note that at page 4 of Mrs. Kreisle’s statement, in clearly referring to the days after the meeting with Mr.

Clunas on August 30, 2017, she said: When Guenther came back to the Kreisle premises, he told his wife Petra about his talk with Brian. Both supposed there are more broken agreements to come and decided to bring 30 from the old 2016 hay bales in to avoid the animals starving. [ 18 ] This passage satisfies me that, in addition to the 14 bales he took in 2016, Mr. Kreisle took at least 30 additional bales belonging to the plaintiffs after the meeting on August 30, 2017. While Mrs.

Kreisle said these were taken from the 2016 bales belonging to the plaintiffs, I am satisfied that the plaintiffs’ bales for 2016 and 2017 were grouped together in the defendants’ field, and that the subsequent bales taken by Mr. Kreisle were taken from this group. I am as well satisfied that Mr.

Clunas and his son did take the time to count the bales on September 8, 2017, and I accept that 31 bales were missing and that these had been taken by the defendants. [ 19 ] Lastly, the plaintiffs acknowledged that the defendants only took 10 of their 14 bales from 2017, and agree to deduct these four bales from the total taken by the defendants. [ 20 ] Taken together, I accept and find that the defendants took 14 bales of the plaintiffs’ share from 2016, and 31 bales from the group of bales belonging to the plaintiffs from 2016 and 2017 in early September, 2017, but that they only took 10 of their share of 14 bales from 2017.

As a result, I find that the defendants took 41 bales belonging to the plaintiffs from the bale production of 2016 and 2017 (14 + 31 - 4 = 41). [ 21 ] Before leaving the issue of the number of bales taken by the defendants, much of the trial focused on what happened on September 11, 2017, the day the plaintiffs came to get their bales from the defendants’ land. [ 22 ] The plaintiffs tendered pictures showing how the defendants stored the bales they took on their yard site, which Mrs. Clunas said showed the defendants had placed an electric fence around these bales (Exhibits P-8).

The defendants said the fence was there already. The plaintiffs, as well, described how the defendants blocked the entrance to their yard site, to prevent them from getting their bales. The defendants admitted this, but said they did so to prevent the plaintiffs from wrongfully taking bales the defendants were entitled to have. The plaintiffs said Mr. Kreisle threatened Mr. Clunas, and played, at the trial, a recorded portion of the angry

confrontation between the two men on September 11. Mr. Clunas, thereafter, went to the RCMP about what he believed was a threat against him by Mr. Kreisle, but the RCMP told Mr. Clunas that it was a civil matter. Mr. Kreisle said he was not threatening Mr. Clunas personally (i.e. his well-being) but he was only warning the plaintiffs not to take the bales they were not entitled to take. [ 23 ] At the end of the day, in my view, the incident was a confirmation of the lack of trust between the parties, but does not answer the ultimate question, which I will now consider.

IV WHAT, IF ANY, DAMAGES SHOULD THE DEFENDANTS PAY TO THE PLAINTIFFS FOR THE BALES THEY TOOK? [ 24 ] What this case really comes down to is what damages, if any, should the defendants pay to the plaintiffs for the 41 bales they took from the plaintiffs’ share for 2016 and 2017? The defendants argued they should be allowed to keep the bales they took, and, in any event, not to pay damages to the plaintiffs for these, because of a number of breaches of the agreement by the plaintiffs. I disagree, for the following reasons.

Did the plaintiffs breach the agreement by not taking a second cut of hay from the defendants ’ land in 2016 and 2017? [ 25 ] As noted above, despite taking a second cut on the defendants’ land in 2015, I am not satisfied that Mr. Clunas agreed to take a second cut of hay on their land ever year. As a result, his not doing so in 2016 and 2017 does not constitute a breach of the agreement by Mr. Clunas.

Did the plaintiffs breach the agreement by doing an unsatisfactory job in baling the defendants ’ hay, and in particular by not producing the quantify of bales that the hay on their land should have produced? [ 26 ] The defendants contend that Mr. Clunas and his son did an unsatisfactory job in producing sufficient bales from their land in 2016 and 2017.

Assuming for a moment that an implied term that a reasonable number of bales of hay be produced was a part of this agreement - when no level of bale production was agreed to by the parties - I, nevertheless, am not satisfied that the plaintiffs failed to produce a reasonable number of bales. [ 27 ] Mr. Clunas said the defendants’ land was rocky, and as a result the cut of hay could not be taken directly to ground level.

He as well explained how he attended at the defendants’ land after the first cut in both 2016 and 2017, and given his 37 years of experience in cutting and baling hay, he did not believe there was sufficient hay for a satisfactory and safe second cut. I accept his evidence on this. [ 28 ] Mrs. Kreisle filed pictures (Exhibit D-2), taken a few days after the plaintiffs baled their hay in July, 2017, which she claimed showed sufficient hay remaining for a second cut, and pictures taken on September 11 and 13, and November 13, 2017 (Exhibit D-3 and D-4), which she said showed the same thing.

She as well claimed her neighbors produced more bales than this on their land in 2017, and that her neighbors, as well, took a second cut on their land. Lastly, she filed a picture from August of 2018 (D-5), which she said shows a significantly higher production of bales on their land, which she claimed was 103 bales. [ 29 ] That said, because I am satisfied that Mr. Clunas was the only person with experience in cutting and baling hay who testified at this trial, I am satisfied that he made appropriate inspections of the defendants’ field to ascertain whether a second cut was possible and prudent. Further, Mr.

Clunas said that 2017 was very dry and that the hay crop was poor. That statement is supported by the Crop Report from the Government of Saskatchewan (Exhibit P-2 and dated July 27, 2017) which provides in part: Hay yields have been significantly less than normal for many producers and hay will be in short supply this year in some areas. Most producers have indicated that there will not be a second cut of hay this year. [ 30 ] Taken together, when I as well consider Mr.

Clunas’s statement - which I accept - that he did not take a second cut of hay on his land or on the land of two other farmers he baled hay for in 2016 or 2017, I am not satisfied that the plaintiffs in any way breached

this agreement through the number of cuts taken or the number of bales produced, regardless of how many bales were claimed to have been produced on the defendants’ land in 2018. [ 31 ] The defendants, as well, claimed that the plaintiffs did an unsatisfactory job in baling because they damaged their hay field. In support of this claim, Mrs. Kreisle tendered a picture of their hay field (Exhibit D-4, taken on October 15, 2017) which showed tracks she claimed were made by Mr. Clunas on September 11, 2017. This, in her words, was a “ new highway” he made in their hay field. [ 32 ] Mr.

Clunas acknowledged that on that day he brought two trucks to the defendants’ land, to load his bales. As a result, he said he made three to four trips into the field. This was done in the context of him not having attended to pick up his share in 2016 at the request of Mr. Kreisle. Mr. Clunas, however, denied damaging the defendants’ field, and submitted that the tracks in the picture were caused by Mr. Kreisle, who admitted that he hauled all of the bales he took, including the ones taken from the plaintiffs’ share, one at a time from the field to the defendants’ yard site.

As I have found that the defendants took 31 bales belonging to the plaintiffs shortly before Mr. Clunas attended to pick up his bales on September 11, 2017, and as Mr. Kreisle acknowledged that he hauled these bales one at a time back to his yard site, that means Mr. Kreisle drove across his hay field with a tractor at least 62 times to pick up and bring back the bales. Taken together, I am not sure who caused the damage which is pictured, nor am satisfied that there was any agreement, expressed or implied, about how the bales were to be picked up by the plaintiffs.

Did the plaintiffs breach the agreement by entering onto the defendants ’ property on September 11, 2017 to pick up their bales without calling ahead by telephone to the defendants before attending? [ 33 ] The defendants, as well, claimed this lack of telephone call and notice resulted in Mr. Clunas disturbing their animals. But, as I have already said, I am not satisfied that there was an agreement between the parties by which the plaintiffs were required to telephone first, or otherwise give notice, before they attended to the defendants’ property.

Even if there had been such an agreement, I fail to see how the actions of the plaintiffs in picking up their bales without calling ahead first, would have caused any quantifiable damages to the defendants or, in any event, justified the defendants in retaining any of the plaintiffs’ bales. The value of the bales [ 34 ] Having determined that the defendants are liable to compensate the plaintiffs for the 41 bales they took, that leaves the question of the value of the bales. The defendants claimed that the value of $55.00 per bale, advocated by Mr. Clunas, was too high. Mr.

Kreisle said that, at a time before this dispute arose, Mr. Clunas had agreed to sell other hay to them at $30.00 per bale. Mr. Clunas denied any such agreement with Mr. Kreisle, and, further, said that the price of hay varies from year to year, depending on the weather and on supply and demand. Mr. Clunas said, in 2018, the price of hay has varied between $70.00 and $150.00 per bale. [ 35 ] I view the best evidence on the value of the bales involved in this case to be that given by Mr. Clunas about hay his son sold to another farmer around the time of this dispute. Mr.

Clunas tendered a receipt (Exhibit P-7) from October 3, 2017, for the sale of 25 bales of hay by his son Dawson to the farmer for $55.00 per bale and 22 bales for 50.00 per bale. He said the more expensive hay was of better quality than the lower priced hay. Because the plaintiffs must prove their damages, and because we have no evidence about how the hay from the defendants’ land compares to that sold by Mr. Clunas’s son, I am satisfied that the hay bales involved in this action should be valued at $50.00 per bale.

V CONCLUSION [ 36 ] In conclusion, I find: (1) that the defendants breached their agreement with the plaintiffs by taking 41 of the plaintiffs’ bales of hay from 2016 and 2017; and (2) that the plaintiffs suffered damages from this breach of contract which total $2,050.00 (41 bales valued at $50.00 per bale).

As a result the plaintiffs will have judgment against the defendants in the amount of $2,050.00, together with interest on this amount from September 11, 2017 under the Pre-judgment Interest Act , SS 1984-85-86, c P-22.2, and costs in the amount of $114.50, which are the cost of having the Sheriff at Yorkton Queen’s Bench serve the defendants ($91.50) and the cost of issuing this claim ($23.00). _______________________ R. Green, J