Loretta Crowder Plaintiff (Defendant by Counterclaim) - v. -, 2011 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 038 Date: April 19, 2011 File: SC#84 of 2008 Location: Saskatoon _____________________________________________________________________________ Between: Loretta Crowder Plaintiff (Defendant by Counterclaim) - and - Corey Lawrence Herle and Northside Auto Service Ltd. Defendants (Plaintiffs by Counterclaim) Adam Hnatyshyn For the Plaintiff/Defendant by Counterclaim Tanner Daniels For the Defendants/Plaintiffs by Counterclaim _____________________________________________________________________________ JUDGMENT D.E. LABACH , J _____________________________________________________________________________ INTRODUCTION

[ 1 ] This case involves a dispute between an aunt and her nephew and his company over a transaction involving a purported sale of a Bobcat loader. [ 2 ] The Plaintiff, Loretta Crowder, maintains that she entered into a verbal contract with her nephew, the Defendant, Corey Herle, to sell him a used Bobcat for the sum of $9,000.00. She says Mr. Herle picked up the Bobcat but did not pay for it at the time and has not paid anything for it to date. Instead, he returned the Bobcat in an inoperable state. As a result, Ms. Crowder makes claim against Mr.

Herle and his business, Northside Auto Service Ltd. for the purchase price of the Bobcat or in the alternative, for the cost of the repairs to the Bobcat to put it back into an operable state. [ 3 ] The Defendants, Mr. Herle and Northside Auto Service Ltd., argue that Mr. Herle was going to take the Bobcat and test it out to make sure that it was in proper working order, and if it was, Northside Auto Service Ltd., would pay $9,000.00 to the Plaintiff for the Bobcat. Unfortunately, the Bobcat was not in proper working order as it was leaking antifreeze and overheating. When the Defendant, Mr.

Herle, took the engine apart to determine why the Bobcat was leaking antifreeze, he discovered that two of the cylinders were cracked. As a result, he says that his company was no longer prepared to purchase the Bobcat unless the purchase price could be renegotiated. Ms. Crowder was not prepared to renegotiate the purchase price and eventually Mr. Herle made arrangements for the Bobcat to be delivered back to the Plaintiff. [ 4 ] Mr. Herle and Northside Auto Service Ltd. have counterclaimed as against Ms.

Crowder for the cost of diagnosing the problem with the Bobcat, storing the Bobcat and eventually delivering it back to her. She has refused to pay for these charges. EVIDENCE [ 5 ] In June 2007, Ms. Crowder was selling her late husband’s 843 Melroe Bobcat loader. A number of people called her about the Bobcat including her nephew, Mr. Herle. He and Dwayne Oborowsky ran an auto repair business in North Battleford called Northside Auto Service Ltd. and they wanted to purchase a Bobcat for use around their business. [ 6 ] According to Ms. Crowder, she was interested in selling the Bobcat to her nephew.

She faxed him the original bill of sale for the Bobcat and the number of hours it had on it. She called Mr. Herle and they negotiated a price of $9,000.00. This price included the Bobcat, a six foot snow bucket, a standard bucket and a grapple hook. [ 7 ] Ms. Crowder said that on a Saturday morning toward the end of June, 2007, Mr. Herle and Mr. Oborowsky showed up with a trailer at her farm to pick up the Bobcat. They loaded it onto the trailer along with the Bobcat accessories. Ms. Crowder testified that Mr. Herle told her that he needed the Bobcat to build a barn.

He did not pay her anything for the Bobcat at the time and she did not ask for payment. She said that she told him “if you need it for the barn, we will settle up when I see you next.” According to her, he responded “next time you come down to North Battleford, pick up the cheque.” Then he and Mr. Oborowsky left with the Bobcat. [ 8 ] Ms. Crowder said that she would have taken a cheque from Mr. Herle if he had offered one but same was not offered. She said the agreement for the sale of the Bobcat was not put in writing because Mr. Herle was her nephew and you are supposed to be able to trust your relatives.

Finally, she testified that she did not recall any discussion with Mr. Herle about test driving the Bobcat. [ 9 ] Mr. Herle’s recollection of what transpired is somewhat different. He testified that in the summer of 2007, Ms. Crowder came by with pictures of the Bobcat. He and his partner, Dwayne Oborowsky, were interested in buying a Bobcat for use around their shop. In the last week of June 2007, he and Mr. Oborowsky, drove out to Ms. Crowder’s farm with a trailer to have a look at the Bobcat.

They noticed some minor problems and had trouble getting it started but otherwise it appeared to be okay. [ 10 ] After putting the Bobcat and its accessories on the trailer, Mr. Herle said that he asked Ms. Crowder what she wanted for it. She replied $9,000.00. He and Mr. Oborowsky had earlier determined that they were prepared to spend $8,500.00. They were not going to quibble over $500.00 so they agreed on her $9,000.00 asking price. He had brought a business cheque with him and he asked Ms. Crowder if she wanted payment right now. According to Mr. Herle, Ms.

Crowder responded “no, you take it and if it works fine, we

will do the deal later.” He took this to mean try it out and if it worked fine, then they had a deal and he would pay her the $9,000.00. [ 11 ] Mr. Oborowsky testified much along the same lines as Mr. Herle. He said that Ms. Crowder told them to “take it and see.” He thought they were going to try it out and if everything was okay, they would pay her $9,000.00 for the Bobcat. [ 12 ] Mr. Herle took the Bobcat to his yard site and unloaded it, where it sat for a couple of days. Before he began trying it out, he checked all the fluid levels and noticed that the antifreeze was down.

As a result, he added 8 litres of diesel antifreeze. He then decided to test the Bobcat by cleaning out his corrals. [ 13 ] As he was returning on his second trip to the pasture from his corrals, his son noticed antifreeze leaking out the back of the Bobcat. The temperature gauge in the Bobcat was fine but when he looked in the engine compartment he noticed antifreeze everywhere. He cleaned the engine up and added another three to four litres of antifreeze. He ran the Bobcat for a bit and there were no visible leaks.

So, he continued cleaning out his corrals. [ 14 ] Once again, after taking a second load from the corrals to the pasture, he noticed antifreeze leaking. This time he parked the Bobcat as he did not have time to determine the problem. He called Mr. Oborowsky, told him that the Bobcat was losing antifreeze and asked him to have a look at the Bobcat while he was haying. [ 15 ] Two days later, Mr. Oborowsky came by to get the Bobcat. He lived approximately four miles from Mr. Herle and decided to drive the Bobcat to his place. Halfway home, he noticed that the Bobcat was getting warm.

He checked the antifreeze and it was down. He topped up the antifreeze and continued on his way. When he got home, it was hot again. He topped up the antifreeze once more. He then parked the Bobcat at his acreage. [ 16 ] A few weeks later, Mr. Herle called Ms. Crowder and told her that the antifreeze kept purging and the Bobcat was constantly overheating. He asked her “What are we going to do about it?” She said “We need to deal with it.” She gave him no further instructions at that time. [ 17 ] A few weeks after this conversation, Mr. Herle again called Ms.

Crowder and asked her what she wanted to do with the Bobcat. According to him, he asked her “Do you want me to take this thing apart, diagnose it and figure out what is wrong with it?” She said “We are going to have to deal with it because it is no good the way it is. It never did that before.” He took this to mean that she wanted him to diagnose the problem so he brought the Bobcat into his shop and took the engine apart. Upon doing so, he discovered that the number two and three cylinders were cracked.

This was the cause of the leaking antifreeze which led to the Bobcat overheating. [ 18 ] Before he could call Ms. Crowder, she unexpectedly stopped in at his shop. On August 13, 2007 she came by to show Mr. Herle a new car that she had purchased. Since she was there, he showed her the cracked cylinder heads and he asked her “What do you want to do?” She responded “I guess we are going to have to deal with this thing. It is no good the way it is. I will phone Bobcat of Saskatoon tomorrow.” Then she left. She did not explain to Mr. Herle why she was going to call Bobcat of Saskatoon. [ 19 ] Ten days later, Ms.

Crowder called Mr. Herle and told him, “I can’t do nothing for you guys as far as the Bobcat goes. You guys are on your own. I am not putting another cent into this thing.” [ 20 ] By the time she had called him, Mr. Herle had gotten an opinion on the cylinder heads to see if they were reparable and he also did some research as to what the cost would be. According to an engine rebuilder, the cracks were not fixable because they were too deep. The only way to fix the problem was to put in a new or rebuilt cylinder head. [ 21 ] Mr.

Herle was still interested in purchasing the Bobcat if this problem with the cylinder heads could be fixed. He found some new cylinder heads for $2,800.00 US dollars and a corresponding gasket kit for $700.00. As a result, he told Ms. Crowder that he would be prepared to pay $9,000.00 for the Bobcat if she agreed to pay half the cost of the parts and labour involved in fixing the cylinders. Ms. Crowder was not willing to do that and told Mr. Herle she was not prepared to spend one red cent on the Bobcat. So Mr. Herle

asked her if she was prepared to renegotiate the price of the Bobcat and again she declined because in her words “she didn’t break it”. [ 22 ] Since nothing was able to be worked out on the Bobcat Mr. Herle told Ms. Crowder that he was going to have to bill her something for the time he spent diagnosing the problem. Mr. Herle testified that he would normally make a customer aware of the fee for diagnosing a problem ahead of time and then would review the bill with them but he did not do that in this case because he did not see the need for it. He also admitted that up until this time, he had never told Ms.

Crowder that he was going to bill her for diagnosing the problem with the Bobcat. Mr. Herle never sent Ms. Crowder a bill until he involved a lawyer. It was through his lawyer that he forwarded a bill in the amount of $594.52 to her. [ 23 ] Mr. Herle said that at the beginning of September, 2007 he called Ms. Crowder and told her that he had to get the Bobcat out of his shop. He advised that he would put it in a lot owned by the City of North Battleford right beside Northside Auto Service Ltd. She asked him if he was going to return it to her and he told her no because he was too busy.

He told the Court that he didn’t return the Bobcat because they had not yet settled the matter of diagnosing the Bobcat’s problems and the engine was apart. [ 24 ] On October 8, 2007, Ms. Crowder called Mr. Herle and told him he had 24 hours to get the Bobcat back to her. She said that if he did not return it they would be going to court to which he responded that they were already going to court. [ 25 ] By September 2007, Mr. Herle said he knew that he no longer wanted to purchase the Bobcat and that he was going to give it back to Ms. Crowder.

However, it was not until June 16, 2010, that he made arrangements for Koopman’s Autobody to take the Bobcat back to Ms. Crowder’s farm. The cost of this was $984.48 and he paid it. Upon returning the Bobcat to Ms. Crowder, he had not reassembled the motor because it would have been time consuming to do that, he did not want to spend $700.00 on the required gasket kit and the Bobcat would still have the problems it had before. In addition to the motor being apart, the back door hinge was missing and the window hinge was broken. Thus, while the Bobcat was in a limited operable state when Mr.

Herle got it, it was not operable at all when he returned it to Ms. Crowder. ISSUES

a) Was there a contract between Loretta Crowder and Corey Herle or Northside Auto Service Ltd. for the sale/purchase of the 843 Melroe Bobcat loader?

b) If there was no contract between the parties for the sale/purchase of the Bobcat, is Loretta Crowder entitled to any damages as a result of the state in which the Bobcat was returned to her?

c) Is Northside Auto Service Ltd. entitled to recover the cost of tearing apart the Bobcat engine, diagnosing the problem, storing the Bobcat or returning the Bobcat to Loretta Crowder? ANALYSIS

a) Was there a contract between Loretta Crowder and Corey Herle or Northside Auto Service Ltd. for the sale/purchase of the 843 Melroe Bobcat loader?

[26] There is disagreement between the parties as to what took place on that Saturday morning in late June, 2007 when Mr. Herleand Mr. Oborowsky attended out to Ms. Crowder’s farm. Ms. Crowder felt they had a deal that Mr. Herle would purchase the Bobcatfor $9,000.00. She passed title to the Bobcat and its accessories to Mr. Herle and Mr. Oborowsky on the understanding they would payher later. Mr. Herle and Mr. Oborowsky were of the view that they were going to take the Bobcat and try it out and if it met with theirsatisfaction, they would pay Ms.

Crowder the negotiated price of $9,000.00 for the Bobcat and its accessories. [27] The onus is on the Plaintiff to establish her claim on a balance of probabilities, meaning, in this case, what she says was saidby herself and Mr. Herle is more likely true than what Mr. Herle states was said. See Wood v. Oleksyn, [1999] S.J. No. 24 (Sask.Q.B.)at para. 17. [28] In Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, Mr.

Justice O’Halloran of the British Columbia Courtof Appeal at page 357 set out the test a judge should employ when determining credibility in the face of two conflicting versions of thesame event: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. . . . . See also Grimwood v. Grimwood (1998), (SK KB), 68 Sask. R. 179 (Sask. Q.B.) at page 185; Wood v.Oleksyn, supraat para. 18. [29] In the present case, I am not satisfied on a balance of probabilities that Ms. Crowder passed title of the Bobcat to Mr. Herle orhis company Northside Auto Service Ltd. on the understanding that they would pay her for it later.

If, as she would have me believe,they negotiated a purchase price of $9,000.00 on the phone in the days prior to Mr. Herle and Mr. Oborowsky attending to her farm, itdoes not make sense that he would not have paid her when he was there with his company chequebook or that she would not have askedhim for payment when he picked up the Bobcat. Nephew or no nephew, Ms. Crowder testified that she was a businesswoman. She livedin Blaine Lake District at the time, some considerable distance from Mr. Herle who lived in North Battleford. He was there yet she didnot ask him for payment nor did she give any reason why Mr.

Herle did not offer to pay her. [30] When I consider the whole of the evidence, I am satisfied that what took place that Saturday morning is as testified to by Mr.Herle and corroborated by Mr. Oborowsky. I believe that while they negotiated a price for the Bobcat, the deal was dependent on themtrying it out and ensuring that it met with their satisfaction. If it did, they would pay her $9,000.00. If it did not then there was no deal. Given the amount of money they were spending, it is reasonable to me that irrespective of who they were buying the Bobcat from, Mr.Herle and Mr.

Oborowsky would want to test it out to make sure it was okay. The fact that they had problems getting it started was evenmore reason to test it out to determine if it ran properly and did what it was supposed to do before purchasing it. [31] I also find support for this conclusion in Ms. Crowder’s evidence. I believe Mr. Herle did offer to pay her with a companycheque as she said, but given the problems they had getting the Bobcat started that morning and the fact that he was her nephew, shewanted to make sure they were satisfied with the Bobcat. So, Ms.

Crowder suggested that they try it out and make sure it worked fine. By dealing with her nephew in this fashion she would not only maintain harmony within the family but neither Mr. Herle nor Mr.Oborowsky could complain that they weren’t given an opportunity to thoroughly check out what they were buying. The reason Mr.Herle did not pay Ms. Crowder and she did not ask for payment at the time was simply because there was no deal until they tested it outand decided if it met with their satisfaction. While Ms.

Crowder testified she “did not recall” discussing a test drive, she did not denythat it was discussed. [32] Having concluded that there was a condition precedent to the transaction, title did not pass from Ms. Crowder to either of theDefendants when Mr. Herle or Mr. Oborowsky left the farm with the Bobcat on their truck. Likewise the obligation of the Defendantsor either of them to pay Ms. Crowder the $9,000.00 purchase price was suspended until they tested it out and advised her that it wassatisfactory to them. Upon that event occurring the obligations in the contract between the parties would have crystallized.

[ 33 ] Unfortunately, the Bobcat did not meet with the satisfaction of Mr. Herle or Mr. Oborowsky. They discovered that it had two cracked cylinders and was leaking antifreeze. I digress at this point to state that I am also satisfied that this problem existed before Mr. Herle and Mr. Oborowsky picked up the Bobcat in June, 2007. Immediately upon trying out the Bobcat they noticed antifreeze leaking and a significant amount of it. The antifreeze was leaking because the cylinders were cracked therefore the cylinders had to already have been cracked at this point in time.

They only used the Bobcat for a short time and shut it down and/or topped up the antifreeze each time it leaked out. There is no evidence that their testing of the Bobcat caused the cylinders to crack. [ 34 ] Ms. Crowder testified that sometime prior to Mr. Herle picking up the Bobcat, her daughter’s boyfriend, Curtis Neufeld, was using the Bobcat to clear some trees on her farm. At some point in time while he was using it, he noticed smoke coming out of the Bobcat. He got out to investigate and eventually determined that the upper rad hose had broken. Mr. Neufeld was called as a witness and confirmed this.

She made arrangements for her brother to replace the hose and stated that she ran the Bobcat for three to four hours and it appeared to be fine. [ 35 ] I have no doubt that this occurred. However, there is no evidence as to how long Curtis Neufeld used the Bobcat before he noticed smoke coming out of the engine compartment. If he used it for any length of time while the coolant leaked out, he could have caused the damage to the cylinders if they were not cracked already. The rad hose was repaired but the problem with the cylinders remained. [ 36 ] Ms.

Crowder ran the Bobcat after the rad hose was repaired and it was fine. I take this to mean that she started the engine and there was no smoke coming out of the engine compartment. There is no evidence she used the Bobcat to do any work. Had she, then she would have seen antifreeze leaking out of the engine compartment just as Mr. Herle did when he used the Bobcat to clean out his corral. As a result, I am satisfied that the Bobcat had cracked cylinders before Mr. Herle and Mr. Oborowsky came out to the farm to purchase it. [ 37 ] The cost to repair this cylinder problem was significant. Mr.

Herle tried to renegotiate the purchase price to take into account the cost of the repairs, but Ms. Crowder was not prepared to accept anything less than the $9,000.00 that was initially agreed to. Consequently, in September 2007, Mr. Herle and Northside Auto Service Ltd. advised Ms. Crowder to come and get the Bobcat. It was not satisfactory to them and they were not prepared to purchase it for $9,000.00. In October 2007, Ms. Crowder demanded that Mr. Herle return the Bobcat to her farm.

Eventually in June 2010 he made arrangements to have it transported to her farm. [ 38 ] After testing out the Bobcat and finding problems with it, the evidence is clear that the Defendants rejected it since a new purchase price could not be worked out. As a result of rejecting it, the agreement for the sale of the Bobcat did not crystallize and the Plaintiff’s claim for the $9,000.00 purchase price must fail.

b) If there was no contract between the parties for the sale/purchase of the Bobcat, is Loretta Crowder entitled to any damages as a result of the state in which the Bobcat was returned to her? [ 39 ] Ms. Crowder argued that if there was no contract between herself and either of the Defendants for the sale/purchase of the Bobcat, then the Defendants are bailees of the Bobcat and as such, owed her a duty of care as the owner of the Bobcat to ensure that it was not damaged while in their possession. In Ms. Crowder’s view the Bobcat was significantly damaged as a result of Mr. Herle’s or Mr.

Oborowsky’s negligent operation of the machine and it was not returned to her in the condition in which the Defendants had received it. [ 40 ] In Scrimbit v. Schmaltz , [2005] S.J. No. 268 (Sask. Q.B.) Currie, J. discussed the law of bailment. At paragraphs 10 to 12 of his judgment he said: [10] A case of property being damaged while in possession of someone other than the owner leads one to the law of bailment. Bailment typically arises as a matter of agreement between the owner of the property (the bailor) and the person receiving possession of the property (the bailee):

A bailment, traditionally defined, is a delivery of personal chattels on trust, usually on a contract, express or implied, that the trust shallbe duly executed, and the chattels redelivered in either their original or an altered form, as soon as the time or use for, or condition on,which they were bailed shall have elapsed or been performed. Under modern law, a bailment arises whenever one person (the bailee) isvoluntarily in possession of goods belonging to another person (the bailor).

The legal relationship of bailor and bailee can existindependently of any contract, and is created by the voluntary taking into custody of goods which are the property of another, as in cases of sub-bailment or ofbailment by finding. The element common to all types of bailment is the imposition of an obligation, because the taking of possession inthe circumstances involves an assumption of responsibility for the safekeeping of the goods . . .

Halsbury’s Laws of England, 4th ed., reissue, vol. 2 (London: Butterworths, 1991) at 830, para. 1801. [11] If the bailee is to derive some benefit from the arrangement, he or she is a bailee for reward. If the bailee is not to derive somebenefit, he or she is a gratuitous bailee: Halsbury’s Laws of England, supra, at 832, para. 1802. [12] The duty of a bailee for reward was described by Wilkinson, J in 620357 Saskatchewan Ltd. (c.o.b. Madraga Speed n’ Sport) v.Georget, [2000] S.J. No. 822, 2000 SKQB 552, 202 Sask. R. 131 at para. 2 (Q.B.): [2] The appellant was a bailee for reward.

No exception was taken to the trial judge’s statement of the applicable law as stated in Page v.Austring Moving and Storage (1986), (SK KB), 51 Sask. R. 154 (Q.B.) where McLellan, J, summarized the case lawat pages 155 - 156 as follows: The legal obligations of such a bailee towards the bailor are well settled. He is bound to use ordinary diligence in the care andpreservation of the property entrusted to him. . . The bailee, however, is not an insurer. . . . Therefore, he is not liable for loss by mereaccident not resulting from his negligence . . .

Where goods are lost or damaged while in the bailee’s custody, the onus is on him toprove that it occurred through no want of ordinary care on his part . . . The trial judge also cited Rudoski v. Murray (1992), (SK KB), 103 Sask. R. 5 (Q.B.) at page 6 where Osborne, Jstated that the bailee must disprove negligence on its part, that is, show that he used “ordinary care”. [41] In Zimmer v. Eastview Autobody Ltd., [1971] S.J. No. 124 (Sask.

D.C.) Cruickshank, D.C.J. at paragraph 15 said: The authorities hold that in a bailment the bailer receives the right to claim a redelivery of the property in the condition in which it wasreceived by the bailee; and from this obligation to so return the chattel the bailee can be relieved only by showing that he has exercisedreasonable care in looking after it, or, in other words, that the loss of or injury to the chattel was not the proximate result of hisnegligence . . . . [42] The relationship between the parties in the present case was one of bailment. More specifically Mr.

Herle and Northside AutoService Ltd. were bailees for reward. The bailment was for their benefit. They had taken possession of the Bobcat to try it out anddetermine if they wanted to purchase it. Once they decided that the Bobcat did not meet with their satisfaction and they were not goingto purchase it, then they had an obligation to Ms. Crowder to return it to her in the same or better condition than when they received itfrom her. [43] The problem with the Bobcat did not arise as a result of any negligence on the part of the Defendants.

As I have alreadydetermined, the Bobcat had two cracked cylinders and was leaking antifreeze when Ms. Crowder gave it to Mr. Herle and Mr.Oborowsky to try it out. I don’t believe that Ms. Crowder was aware of these problems with the Bobcat, but the Bobcat had theseproblems nonetheless. These problems existed before the bailment between the Plaintiff and the Defendants arose. [44] When Mr. Herle and Mr. Oborowsky took possession of the Bobcat, it ran, but for all intents and purposes, it was not capableof doing the work which it was meant to perform.

While they had it, they took the engine apart to find out why it was leakingantifreeze. They determined that antifreeze was leaking from the engine because two of the cylinders were cracked. They did not fix the

problem nor did they put the engine back together. Eventually they returned the Bobcat to Ms. Crowder with the engine in pieces. [ 45 ] When the Defendants returned the Bobcat, it was not in the precise condition in which they received it from Ms. Crowder. It was still not capable of being used for the purposes for which it had been intended but now it did not run at all because the engine was apart. Despite this, I am of the view that Ms. Crowder was in a better position when she got the Bobcat back from the Defendants than when she gave it to them.

When she gave the Bobcat to them to test it out, she did not know what problems it had. It ran but could not perform the work that it was meant to do. Consequently, it was of no use to anyone unless those problems were fixed. When she got it back from them, the problems were diagnosed and she was advised of what the problem was. The engine was apart and it was ready to be repaired. As a result, she would not have to pay for a mechanic to rip apart the engine and diagnose the problem.

All she would have to pay for is for the mechanic to fix the problem, which she would have to do anyway to sell the Bobcat or use it herself. Thus, even though the engine was apart, Ms. Crowder was in a better position than when she gave the Bobcat to the Defendants. [ 46 ] Therefore, I conclude that there was no negligence on the part of the Defendants when they had the Bobcat in their possession, they returned it in virtually the same condition in which they received it and as a matter of fact, the Plaintiff was in a better position when she got it back than when she gave it to the Defendants.

Consequently, the Plaintiff’s claim on the ground of bailment also fails.

c) Is Northside Auto Service Ltd. entitled to recover the cost of tearing apart the Bobcat engine, diagnosing the problem, storing the Bobcat or returning the Bobcat to Loretta Crowder? [ 47 ] The Defendants have counterclaimed as against Ms. Crowder for the costs of tearing apart the engine, diagnosing the problem with the Bobcat, storing the Bobcat and eventually arranging for it to be towed back to her residence. It is the Defendant’s responsibility to satisfy me on a balance of probabilities that the Plaintiff authorized this work and agreed to pay for these things.

They have not done so. [ 48 ] There was no express or implied agreement between Ms. Crowder and Mr. Herle or Northside Auto Service Ltd. to diagnose the problem with the Bobcat and fix it. When Mr. Herle first brought to Ms. Crowder’s attention that the Bobcat was leaking antifreeze, she was vague and uncertain about what she wanted to do. Even though it was leaking antifreeze, it was apparent Mr. Herle was still interested in purchasing the Bobcat.

By his own accord he took the engine apart to see what the problem was so that he would be able to determine if the problem was such that it could be fixed and if so, for what cost. [ 49 ] The work the Defendants did on the Bobcat to tear apart the engine and diagnose the problem was done at their own behest to assist them in determining if they wanted the Bobcat and, if so, whether they would pay the agreed on price or whether they should renegotiate the price in light of the problems with it. At no point in time did Ms. Crowder direct them to determine the problem and fix it.

It is clear from the evidence that she was undecided as to what she should do until she finally made it clear to the Defendants that she was not prepared to do anything at all. [ 50 ] After Mr. Herle finally diagnosed the problem and determined how much it would cost to fix the problem, he was still interested in buying the Bobcat albeit only if the purchase price could be re-negotiated. Eventually, in September 2007 he realized that a new deal could not be worked out and he no longer wanted the Bobcat. He had a conversation with Ms. Crowder in September 2007 and advised her of same in not so many words.

At that time she asked him if he was going to return the Bobcat to her and he told her that he was not prepared to do that. All he would do is leave it in a lot owned by the City of North Battleford next to his shop. In the early part of October, 2007 she specifically advised Mr. Herle to deliver the Bobcat back to her. He never did this until June, 2010. [ 51 ] Mr. Herle, upon determining that he did not want the Bobcat in September 2007, had an obligation to return it to Ms. Crowder. She did not ask him to store it for her and she did not agree to pay any storage fees.

She wanted it back and demanded that it be returned to her. It took Mr. Herle almost three years to finally return it to Ms. Crowder. It was his decision not to return it to her after he had rejected it and she had requested its return. As such the Defendants are not entitled to storage fees or the cost to have it towed back to Ms. Crowder.

[ 52 ] It is apparent from the evidence that the costs the Defendants are counterclaiming for never arose until the lawyers got involved. In my view, they were never discussed with the Plaintiff prior to the work being done, she never agreed or authorized any of these costs and they were simply created by the Defendants and his counsel to deter the Plaintiff from any claim or possibly to offset any valid claim she may have. As a result, the Defendants counterclaim is dismissed.

CONCLUSION [ 53 ] Having regard to the evidence presented at trial and the applicable law in this case, the Plaintiff has failed to prove her claim in either contract or bailment on a balance of probabilities and her claim is therefore dismissed. [ 54 ] Likewise, the Defendants have failed to prove their counterclaim on a balance of probabilities and as such, their counterclaim is dismissed. [ 55 ] Given my decision on these matters, no costs are ordered. __________________________ Labach, J