2011 QCCQ 15723, 2011 QCCQ 15723

D & G D'Alesio Aluminium inc. c. Forgione 2011 QCCQ 15723 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-123483-101 DATE: December 19, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ D & G D’ALESIO ALUMINIUM INC. 6, Ronald drive, Montréal-Ouest, Québec, H4X 1M8 Plaintiff v. JOE FORGIONE -and- LUIGI FORGIONE [...], St-Léonard, Qc., [...] Defendants/Plaintiffs in warranty v.

LAURA McCARTHY [...] Lasalle, Qc., [...] Defendant in warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff D & G D'Alesio Aluminium inc. is suing Giovanni “Joe” Forgione and Luigi Forgione for $2,257.50 for construction work it performed. Defendants deny the claim and called Anne Laura McCarthy in warranty. The evidence: [ 2 ] In April 2008, Joe Forgione contacted Plaintiff, a company, which sells, installs and services windows, doors and siding.

At his request, Plaintiff created a shelter under the rear balcony and finished a bay window with aluminium. [ 3 ] The contract was verbal and the work was done immediately. Plaintiff sent Mr. Forgione a bill for $2,257.50 and followed it with repeated telephone calls for payment. [ 4 ] Mr. Forgione responded with threats. [ 5 ] Plaintiff called Joe Forgione's father, Luigi, who assured Plaintiff he would take care of the bill and pay Plaintiff personally.

He asked Plaintiff not to put a lean on the house; he guaranteed Plaintiff he would cover the cost of the work. [ 6 ] Luigi Forgione claimed he was only the “prête-nom” for the house and that his son Joe and Joe's ex wife, Ms. McCarthy, were then the property's owners. The house was for sale. Mr. Luigi Forgione testified he had told Plaintiff he would pay for the job if he received money from the sale of the house but claimed he would assume only half the cost. [ 7 ] The house was sold. After paying the mortgage and liens, there remained $26,000. Luigi Forgione did not receive any funds

from the sale of the house since his portion was seized before judgment; ultimately, he never paid Plaintiff. [ 8 ] Joe Forgione claims he paid Plaintiff $1,000 in cash and then had no money to pay for the rest of the work. Plaintiff maintains it did not receive any money. [ 9 ] Laura McCarthy denied responsibility for the job. She had not asked for the work and pointed to the divorce settlement in which the parties acknowledged that each party is responsible for his or her debts. Analysis: [ 10 ] Plaintiff contracted with Joe Forgione to do work in the house in which Joe Forgione resided.

When he failed to pay Plaintiff's invoice, his father Luigi verbally undertook to pay the debt, as a surety. Luigi Forgione claims he only agreed to pay if he received money from the sale; he says he did not pay Plaintiff since he did not receive any funds. [ 11 ] Plaintiff testified that Luigi undertook to pay the bill upon the sale of the house; no conditions were specified. [ 12 ] Of the two versions, the Court prefers Plaintiff's testimony. [ 13 ] Plaintiff was consistent in his version of the facts.

Defendants allege having paid $1,000 in cash but in their written contestation, they claim they paid $1,500 in cash. In addition, Defendants maintain that Plaintiff only sent an invoice with the tax included after Plaintiff was unable to obtain payment. However, the work was done in April; it took one week. The bill was sent immediately; it is dated April 9th. [ 14 ] Luigi says he suggested that Plaintiff put a lien on the property. The Court considers this allegation improbable. Plaintiff wanted to put a lien on the house but stated that Luigi Forgione insisted Plaintiff not do so since Luigi guaranteed payment.

Given Plaintiff's intention to put a lien on the house, the Court believes he was deterred only by Luigi's promise to pay. It is most likely that Plaintiff would have instituted legal procedures had he not received an undertaking from Luigi. [ 15 ] In sum, the Court finds Plaintiff's testimony more credible and concludes that Luigi Forgione promised to pay Plaintiff's bill on behalf of his son Joe.

Luigi has an obligation to honour the undertaking he assumed and is therefore liable for the debt. [ 16 ] Joe Forgione, having filed for an assignment in bankruptcy, cannot be sued. [ 17 ] Defendant instituted an action against Laura McCarthy. The Consent to Judgment signed by Joe Forgione and Laura (Ann) McCarthy in the context of their divorce proceedings indicates that “each party shall be responsible for all debts contracted in his/her own name…” . Given that Ms. McCarthy did not contract any debt or provide any undertaking to pay for Plaintiff’s services, she is not liable for the claim.

FOR THESE REASONS, THE COURT: GRANTS Plaintiff's action against Luigi Forgione; CONDEMNS Luigi Forgione to pay D & G D'Alesio Aluminium inc. the sum of $2,257.50, plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Québec since September 10, 2009, plus judicial fees of $148. DISMISSES Plaintiff’s action against Joe Forgione; DISMISSES Defendants’ action in warranty against Laura (Ann) McCarthy; THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q.

Date of hearing: October 24, 2011