Douglas Ukrainetz carrying on business under the firm name v. style of, 2014 SKPC 82

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 082 Date: May 26, 2014 File: 123/12 Location: Yorkton _____________________________________________________________________________ Between: Douglas Ukrainetz carrying on business under the firm name and style of Ukrainetz Auctioneering - and - Len Borowski Gordon Pritchard For the Plaintiff Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT P.A. REIS , J _____________________________________________________________________________ I. INTRODUCTION

[ 1 ] The Plaintiff is Douglas Ukrainetz who is the owner of Ukrainetz Auctioneering. The Defendant is Len Borowski of Wishart, Saskatchewan. [ 2 ] Mr. Ukrainetz conducted an auction at the farm of Del and Eileen Henderson, in the Kelliher area, on October 6, 2012. Mr. Borowski attended the auction and made a successful bid for a John Deere 4640 tractor, which he took possession of and paid $1,800.00 to the Plaintiff for, receiving an invoice in this amount. II. THE ISSUES [ 3 ] Mr.

Ukrainetz claims that the winning bid for the tractor was actually $18,000.00, and not $1,800.00, an amount entered in error by his staff member as she was creating the invoice provided to Mr. Borowski. Mr. Ukrainetz sues for the difference between what he says was agreed ($18,000.00) and what Mr. Borowski paid ($1,800.00): $16,200.00. He as well claims against Mr. Borowski for the loss of a later sale of this tractor to third parties. As a result, the issues are: (1) whether the winning bid for the tractor was for $1,800.00 or $18,000.00; and (2) whether or not Mr.

Ukrainetz should be compensated for the loss of the later sale to third parties. [ 4 ] The trial began before a judge who was, during the course of the trial, appointed to the Court of Queen’s Bench. As a result, he did not complete the trial and it began anew before me. III. THE EVIDENCE [ 5 ] Mr. Ukrainetz testified as to his extensive experience with auctioneering. He was hired to do an auction at the Henderson farm on October 6, 2012. He explained his role at the auction and those of his staff: his two ringmen, his clerk, and his cashier.

Through his evidence some documents were filed, marked and made Exhibits P1-P5. He said that the tractor had a front end loader that increased its value by $8,000.00–$10,000.00. He described in detail the bidding that occurred for the tractor and said that Mr. Borowski had the winning bid of $18,000.00 and that the ringman was Perry Neuman. [ 6 ] Mr. Ukrainetz said that his clerk, Christine Dyky, was also with him on the auction truck and that it was her role to enter the winning bid information on her computer, to create the invoice and to send it down to the cashier, for printing and receiving payment.

He said that his clerk made a clerical error by missing a zero. As a result, the invoice (Exhibit P4) read 1,800.00 and not 18,000.00. When that mistake was later discovered, after contact from the Hendersons, Mr. Borowski was contacted but he would not agree to pay the difference. A corrected invoice (Exhibit P5) was prepared and sent to Mr. Borowski, which he did not pay. [ 7 ] Mr. Ukrainetz also described making later arrangements to sell the tractor to third parties, but that the sale did not go through because he never got possession of the tractor.

No admissible evidence was called, nor would it have been allowed, as to why this event took place, which had also led to the proper striking of certain paragraphs of Mr. Ukrainetz’s amended claim by the previous trial judge. Mr. Borowski had elicited inadmissable evidence through his cross-examination, which could not be considered. [ 8 ] Mr.

Ukrainetz called Terry Lastiwka as a witness who said that he attended the auction and that the opening bid on the tractor was 10,000.00, that he bid fifteen, later saying 15,000.00, that the second highest bid was 17,500.00 and that the winning bid was 18,000.00. [ 9 ] Christine Dyky gave evidence on behalf of Mr. Ukrainetz and said that she was a clerk for Mr. Ukrainetz at the auction and that her responsibilities included climbing onto the auction truck, entering items sold onto her laptop and sending them to the trailer, to the cashier.

The last item bid on that day was the tractor and the winning bid was 18,000.00. She said that she made a mistake by typing in 1,800.00 and not 18,000.00. [ 10 ] Perry Neuman also gave evidence saying that he was working as a ringman for Mr. Ukrainetz and that he took the winning bid

of 18,000.00 which he relayed to Mr. Ukrainetz, after confirming the number, as he wanted to make sure. He also said that the second highest bid was seventeen five and that the highest was $18,000.00. [ 11 ] John Liske also gave evidence that he was a ringman for Mr.

Ukrainetz and took a bid of seventeen thousand five for the runner up, Richard Wessing, after the bidding had started at ten, to fifteen, to seventeen five, seventeen thousand five and that the winning bid was 18,000.00. [ 12 ] Richard Wessing, who is a farmer from Ituna, testified that an opening bid was made in the amount of 10,000.00, that he made a bid of 17,500.00 and that the winning bid was 18,000.00. [ 13 ] Dan Hoover gave evidence that he is a farmer near Westband and that he was standing in front of the auction truck.

He thought the opening bid was nine, he remembered 10,000.00, thought seventeen five, heard eighteen and later that seventeen five was the winning bid. [ 14 ] Ed Sagan testified that he has been a farmer since he was fifteen and that the winning bid was 18,000.00. [ 15 ] Through the evidence of Kristie Evanovich, who is the daughter of Douglas Ukrainetz, other documents were made Exhibits P6-P8 and a video of the auction was made Exhibit P9. She said that she dealt with Mr. Borowski as the cashier that day when he had purchased a John Deere tractor which was invoiced for 1,800.00.

When she asked if he had paid 1,800.00, he said yes but that there was a red flag for her. She did not work in the auction ring nor near it and assumed that the price was 1,800.00 and took Mr. Borowski’s word for it. It was not until the payout had been completed and Mrs. Henderson contacted them that she learned of the mistake and that the actual price should have been 18,000.00. When Mr. Borowski was contacted about it, he was advised that it was a clerical error. He claimed the price was 1,800.00 and wouldn’t pay the rest. She was going to check the video thinking that the entire auction was taped; it was not.

Later, she adjusted the consignor settlement that was sent to the Hendersons and revised the invoice with the correction from 1,800.00 to 18,000.00 (Exhibit P5), to reflect the proper price for the sale of the tractor. [ 16 ] Mr. Borowski chose to call no evidence on his own behalf. IV. ANALYSIS [ 17 ] Mr. Borowski cross-examined all of the witnesses in an apparent effort to challenge their credibility. In particular, he asked many questions of Mr. Ukrainetz and many of his daughter, Kristie Evanovich, especially pertaining to some of the documents filed as exhibits.

Apparently, through this cross-examination and argument, he was attempting to establish that his winning bid for the tractor was $1,800.00 and not $18,000.00 or that some type of fraud had been perpetrated upon him or that there had been some form of breach of The Sale of Goods Act or The Small Claims Act or that other forms of impropriety had been foisted upon him - all of which I do not accept. [ 18 ] In particular, it is significant that under cross-examination, Mr.

Ukrainetz offered a reasonable explanation as to why the entire auction was not videotaped (it was unintentional) and expressed lament that the part relating to the auction of the tractor was not videotaped. Notably under cross-examination, he also said that he had paid out 18,000.00 to the Hendersons, after being advised of the mistake. [ 19 ] I accept all of the evidence tendered by the Plaintiff, described above. I find that Mr.

Ukrainetz, and all of his witnesses, were credible, and that their testimony was supported by the exhibits filed by the Plaintiff. [ 20 ] When I consider the evidence of Douglas Ukrainetz, Terry Lastiwka, Christine Dyky, Perry Neuman, John Liske, Richard Wessing and Ed Sagan, I am, as well, satisfied on a balance of probabilities that the winning bid of Mr. Borowski at the auction was $18,000.00 and not $1,800.00.

[21] The evidence of all in attendance at the auction who heard the bidding clearly establishes that the bidding was in thethousands and not in the hundreds of dollars. As well, I am satisfied based on the evidence of several witnesses that $18,000.00 was afair and reasonable price to pay for the tractor. [22] In particular, I accept that Christine Dyky made a clerical error by typing in 1,800.00 and not 18,000.00 as she was creatingthe invoice. I am satisfied that Mr.

Borowski seized on the mistake, to obtain a benefit he knew or ought to have known that he was not entitled in law to have.[1] [23] I, as well, accept that there was in this case an unjust enrichment: an enrichment of or to Mr. Borowski with a corresponding deprivation of Mr. Ukrainetz and an absence of a juristic reason for the enrichment.[2] V. CONCLUSION [24] For the reasons above, there will be judgment in favour of Mr. Ukrainetz for $16,200.00 (GST exempt), together with interestunder The Prejudgment Interest Act from October 6, 2012 (the date of the auction).

As well, I award costs in the amount of $100.00 forissuance of the summons, $9.40 to effect service and $517.02 for witness fees. [25] I deny Mr. Ukrainetz’s further claim for damages for the loss of the later sale of the tractor to third parties, as Mr. Ukrainetzsimply did not at that time own nor possess the tractor to sell. P.A. Reis, J [1] See Farm Credit Corp. v. Mihilewicz, (SK KB), 1995 CarswellSask 420, 50 R.P.R. (2d) 121, 139 Sask. R. 81. [2] See Love v.

Love, 2013 CarswellSask 162, 2013 SKCA 31, 225 A.C.W.S. (3d) 1112, 85 E.T.R. (3d) 205, [2013] 5 W.W.R. 662, 2013 C.E.B. & P.G.R. 8026, 25 R.F.L. (7th) 1, 359 D.L.R. (4th) 504, 20 C.C.L.I. (5th) 1.