2013 QCCQ 1747, 2013 QCCQ 1747

Ollo c. Clayman 2013 QCCQ 1747 COURT OF QUEBEC "Small Claims Division" CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N° : 500-32-121978-102 DATE : February 21, 2013 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ BENJAMIN OLLO Plaintiff v.

CHARLES CLAYMAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff seeks from the Defendant the reimbursement of the amount paid to purchase the latter's shares in C.A.

Distribution Gourmande Inc. [ 2 ] The Defendant contests the Plaintiff's claim and seeks, by his cross-demand, the balance owed under the sale contract. [ 3 ] On September 7 th , 2009, an agreement is concluded between the parties whereby the Plaintiff agrees to pay $11,500.00 for the purchase of Defendant's shares in the company (Exhibit P-1). [ 4 ] $4,000.00 is paid on the date the contract is signed and the remainder of $7,500.00 to be paid on October 15, 2009. [ 5 ] Shortly after paying the first instalment, the Plaintiff learns that the company owes an amount to the individual who made some renovations to the store.

The Plaintiff also learns that the Defendant and his partner in C.A.

Distribution Gourmande Inc, Alain Sultan, had personally guaranteed the payment of the rent and in fact the company owed several months of rent to the landlord, who had instituted an action to recover the rent and obtain the cancellation of the lease, as appears from the claim in Cour du Québec (Exhibit P- 2). [ 6 ] The Plaintiff adds that the Defendant had never informed him of these facts. [ 7 ] Upon learning this, the Plaintiff refused to start operating the store and asked the Defendant to cancel the agreement and reimburse him the amount paid, which the Defendant refused. [ 8 ] Moreover, the Plaintiff request that the Defendant reimburse the sum of $4,668.41 that the Plaintiff paid to cover one and a half month of rent.

According to the Plaintiff, this amount was paid in cash. The Plaintiff refers the Court to his monthly statement. [ 9 ] The Defendant denies Plaintiff's claim and adds that the reason Plaintiff asks that the agreement be cancelled, is because Plaintiff was unable to make the business profitable. [ 10 ] The Defendant did not convince the Court and the explanations provided by the Plaintiff is more credible. [ 11 ] However, the plaintiff did not provide the necessary evidence to convince the Court that an amount of $4,668.41 was paid to the defendant for the rent.

WHEREFORE THE COURT HEREBY: GRANTS in part plaintiff’s action; CONDEMNS the Defendant to pay to Plaintiff the sum of $4,000.00 plus interest at the legal rate of 5% and the additional indemnity provided for by art. 1619 C.C.Q., as of March 4 th , 2010, WITH COSTS in the amount of $157.00 representing the judicial stamp of the application. DISMISSES Defendant's cross-claim without costs.

__________________________________ DIANE QUENNEVILLE, J.C.Q. Date of hearing : October 16, 2012