Philip Furnival v. Kristina Furnival, 2014 SKPC 140

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 140 Date: July 22, 2014 File: 67/13 Location: Moosomin _____________________________________________________________________________ Between: Philip Furnival and Kristina Furnival - and - Quinn Hepburn Robert Hill For the Plaintiffs Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT R. GREEN , J _____________________________________________________________________________ I. INTRODUCTION [ 1 ] This is a dispute over a horse named JD.

On May 19, 2012, the plaintiffs Philip and Kristina Furnival gave a cheque for $400.00 to the defendant Quinn Hepburn. The Furnivals thought this was the full purchase price for JD. Ms. Hepburn thought it was a deposit towards the purchase price of $1,000.00 for the horse which she was giving to them on an initial trial period. The Furnivals took

the horse home with them that day. Approximately eleven months later - after a number of messages sent back and forth between the parties, most of which are not acknowledged as received - Ms. Hepburn came to the Furnivals’ farm and took JD back into her possession. [ 2 ] As a result of what happened, the Furnivals claim Ms. Hepburn breached the contract between them by: (1) trespassing onto their property and repossessing JD; and (2) refusing to return the horse or repay any money received from them. They claim against Ms.

Hepburn for the purchase price of $400.00, the cost of veterinarian bills while JD was in their possession ($2,357.66), and the cost of keeping the horse for 11 months ($3,300.00), and either in the alternative or in addition, the return of JD to them. Imbedded in this claim, although not specifically stated and not apparent until the trial had begun, was an allegation that Ms. Hepburn was negligent in the way she trimmed JD’s hooves on July 5, 2012 and therefore is liable to the Furnivals for the resulting veterinary expenses (mentioned above). [ 3 ] In response, Ms.

Hepburn counterclaims for the veterinarian costs she incurred upon repossessing the horse, because of a breach of contract by the Furnivals, together with the costs associated with this dispute that she incurred for lost wages and for paying a criminal lawyer (after the Furnivals reported the incident of Ms. Hepburn repossessing JD to the RCMP). [ 4 ] On May 19, 2012, Mr. and Mrs. Furnival, along with their daughters, attended to Ms. Hepburn’s farm. Their daughter Laura took a riding lesson that day from Ms. Hepburn, and, after that lesson, the parties went to see the horse JD and discuss a purchase.

These would appear to be the only significant facts not in dispute between the parties. [ 5 ] This was a highly charged trial. Both the Furnivals and Ms. Hepburn were absolutely convinced, and asserted, that the other party was not telling the truth.

Both parties filed a large number of documents related in some way to JD, many taken off the Internet from social media sites and submitted as proof of the other party’s untruthfulness. [ 6 ] Regarding the claim and counterclaim for breach of contract, it is a fundamental principle of contract law that there must be a meeting of minds between the parties to a contract. In legal terminology, this is called being ad idem . [1] [ 7 ] For the reasons that follow, I am not satisfied that there was a meeting of the minds between the Furnivals and Ms.

Hepburn on the fundamental issue in this trial: the purchase price for JD. As a result, I am not satisfied that there was an enforceable contract between the parties, upon which a claim or counterclaim for breach of contract could be founded. Nor am I satisfied that Ms. Hepburn was negligent in any work done on this horse at the Furnivals’ farm on July 5, 2012 or that she trespassed on the Furnivals’ property when she repossessed JD in April 2013. II. WHAT HAPPENED ACCORDING TO THE FURNIVALS? Philip Furnival [ 8 ] Mr. Furnival said they asked Ms. Hepburn how much she wanted for JD and she said $400.00.

They then gave her a cheque in that amount (Exhibit P-1). They loaded the horse onto their trailer and took JD home. He denied that there was any conditions placed on the sale, nor was there any offer by Ms. Hepburn of a written bill of sale. [ 9 ] Mr. Furnival said in July 2012, Ms. Hepburn attended to their farm and gave another riding lesson to their daughter and as well worked on the feet of JD, for which she was paid by cheque (Exhibit P-4). He said, a few days later, their daughter Laura said that JD was lame.

As a result, they consulted a vet clinic in Virden, and encountered costs as a result of the advice and treatment provided by the veterinarians there. After the treatments and some rest, the horse eventually recovered. [ 10 ] Mr. Furnival said that, on April 8, 2013, their daughter came into their house and was upset because she could not find JD. He went with his daughter and looked but could not find the horse. They noted footprints in the ditch beside a field. His wife contacted Ms. Hepburn, who phoned back and said that she had repossessed the horse. As a result of what happened, the Furnivals contacted the

RCMP in Moosomin, and Cst. Chris Pshyk came out to see them. Kristina Furnival [ 11 ] Ms. Furnival supported her husband’s story about what happened on May 19, 2012. She said that they paid $25.00 cash for the riding lesson, but had no cash left after that and asked Ms. Hepburn if a cheque to pay for JD was okay. They paid $400.00 by cheque and she claimed there were no other conditions placed on the sale. She said on July 5, 2012, Ms. Hepburn attended to their farm to give a riding lesson to her daughter and, I take it, to clip JD’s hooves. She said she saw Ms.

Hepburn in the distance, which I take to mean she was not close to Ms. Hepburn. As well, she said she saw Ms. Hepburn a number of times over the summer and there was never any mention of further payment for JD. [ 12 ] On cross-examination, she admitted that the cheque for JD was written out by her daughter and she signed it. She was also asked whether her daughter Laura agreed to work for Ms. Hepburn in August, and I take her response to be that may well have been the case.

She was then shown a series of e-mails apparently between the parties, although it is difficult to say exactly whose account the e- mails came from. In these e-mails the Furnivals were in effect claiming - either on their own behalf or through their daughter - that they did not owe any further money to Ms. Hepburn and that she must retract a statement she had made on the Internet, a statement which I must say is not clear to me through the evidence presented. Cst. Chris Pshyk [ 13 ] Cst. Pshyk said he received a complaint from the Furnivals on April 8, 2013, and attended to their farm in the late afternoon.

The Furnivals took him out to a pasture. By the edge of that pasture, they saw vehicle tracks on the road and some horse footprints coming from the pasture. He testified that there was no gate but said that the barbed wire was wound together, which I take to mean it was lower down than it would normally be. Dr. Everett Moore [ 14 ] Dr. Moore testified as an expert in the area of veterinary medicine. He saw the horse JD on July 25, 2012. He said the horse was sore in both of its front feet. In his opinion, this problem had been brought on by a trimming of the horse’s hooves.

He suggested to the Furnivals that the horse’s feet be soaked in Epson salt and an iodine wrap be applied to the horse’s hooves for a week. He as well blocked one of the hooves and prescribed anti-inflammatories. He said the cost of his services to the Furnivals was $86.92 for the initial visit to his colleague and $176.66 for his consultation with the Furnivals. The drug costs to the Furnivals was an extra $20.00. [ 15 ] In cross-examination, Dr. Moore admitted that he could not say that any trimming done to JD’s hooves was done negligently.

He could only say that the result of the hooves being trimmed was that it triggered lameness in the horse. III. WHAT HAPPENED ACCORDING TO MS. HEPBURN? Quinn Hepburn [ 16 ] Ms. Hepburn testified that she bought JD in December 2010 for $400.00 (the bill of sale was tendered as Exhibit D-24). She subsequently agreed to sell JD to a woman for $400.00, but that woman backed out of the sale.

She said the web posts from Horse Clicks that the Furnivals presented to her on cross-examination (for example Exhibit P-8) - which indicated that the original purchase price was $400.00 - were posts from the original attempted sale of JD in 2011 which could not be removed from the Internet.

[ 17 ] On May 19, 2012, she met with the Furnivals at her farm. She said she showed JD to them and said the horse had poor feet and was a so-called companion horse or pasture pet, broken to ride but not to be ridden at any great length. She said the Furnivals asked if they could take the horse on a thirty-day trial, and she agreed with a $400.00 deposit. She said she made it clear that she was asking $1,000.00, and filed with the Court a list of expenditures on JD in 2011 and 2012 which led her to the conclusion that she could no longer sell JD for $400.00 (Exhibit D-20). [ 18 ] Ms.

Hepburn said she went to the Furnival farm on July 5, 2012 to give Laura Furnival a riding lesson and to trim the hooves of some of their horses. She denied that she trimmed JD’s hooves this day, but said the horses Tex, Misty and Joe she trimmed. [ 19 ] Ms. Hepburn said later that summer she was contacted by Laura Furnival, who said she would work for Ms. Hepburn in exchange for both lessons and the amount left owing on JD. Ms. Hepburn said there was then an arrangement reached which involved Philip and Kristina Furnival, where Laura would work for Ms.

Hepburn in exchange for the cost of riding lessons and the amount left owing on JD and, further, that Ms. Hepburn would pay $10.00 per day for fuel to have Laura brought to Ms. Hepburn’s farm. [ 20 ] Ms. Hepburn said that she sent a Facebook message to Kristina Furnival, telling her to pay for JD or to return the horse. She as well sent a letter to Mr. and Mrs. Furnival on September 21, 2012 (Exhibit D-12) which asked that they pay the remaining $600.00 left owing on JD. As I understand it, she says she never heard back from the Furnivals and the Furnivals deny ever receiving this letter. However, Ms.

Hepburn says a money order attached to that letter (to pay for gas for Laura) was cashed. [ 21 ] Ms. Hepburn, in total, described the situation that arose as, essentially, a war between the parties on Facebook and other social media sites. She presented (Exhibit D-24) the original bill of sale by which she purchased JD from another party in December 2010, and then picked up the horse in January of 2011. She as well said that, after she repossessed JD - by taking the horse from the edge of the Furnivals’ property - she took the horse to Dr. Hill at the vet clinic in Redvers, Saskatchewan.

This veterinarian examined the horse and confirmed that in his opinion it was the horse in her original bill of sale. [ 22 ] On cross-examination, she was asked about a Facebook post which appears to be from August 23, 2012 (although the year does not appear on the message). That message, under the name Quinn Hepburn, says that she sold the horse for $400.00. She responded that this was not sent by her, and that the message had been altered. Ralph Hepburn [ 23 ] Mr. Hepburn is Ms. Hepburn’s stepfather. He was present on May 19, 2012, when the Furnivals attended and viewed JD. He knew that Ms.

Hepburn was asking over $500.00 because of the money they had put into the horse. He has experience in raising horses, and was unhappy with his stepdaughter when she allowed the horse to leave without a written bill of sale. He understood that the horse was going on a 30-day trial. He wasn’t certain of the exact price stated but knew that there was still money owing on the horse after the $400.00 was paid. [ 24 ] Mr. Hepburn helped his stepdaughter pick up the horse on April 8, 2013. He denied that they entered the field to take the horse away. He said, as well, they did not go through the ditch.

He said his stepdaughter was one day away from surgery, and as a result she asked both himself and Wade McQuarter to come with her to get JD. IV. ANALYSIS No meeting of the minds [ 25 ] Having heard the evidence of the parties, I am not satisfied there was a meeting of their minds on the essential questions of what the purchase price for JD was or whether there was to be a trial period.

I do not reject the evidence of either the plaintiffs or the defendant on these issues, but rather find that they had very different understandings of the agreement: with the Furnivals believing the agreement was for $400.00 and no strings attached, and Ms. Hepburn believing the agreements was for $1,000.00, with $400.00 down

and the Furnivals taking the horse for a trial period and pending payment of the remaining $600.00. When I consider the flood of communications back and forth between the parties - albeit many sent through the insecurities and uncertainties of social media sites on the Internet - taken together with the conflicting testimony of the Furnivals, on the one hand, and Ms. Hepburn and her stepfather, on the other, I am satisfied that both the Furnivals and Ms.

Hepburn genuinely believed their version of the original deal. [ 26 ] Obviously, a written documentation of the terms of sale would have likely avoided this dispute. It did not happen, and we are left with a cheque for $400.00, written out by the Furnivals’ teenage daughter, which simply says JD on it. [ 27 ] Given what I conclude was a significant misunderstanding between the parties about the essential terms of the purported agreement, I am not satisfied that a binding contract for the purchase of JD ever existed between the parties.

As a result, neither the claim or counterclaim, based on a breach of contract, can succeed. Negligence not proved [ 28 ] Nor am I satisfied that Ms. Hepburn was negligent when she attended the Furnival farm on July 5, 2012. Even leaving aside her denial that she trimmed the hooves of JD, as opposed to three other horses, Dr. Moore, who testified for the plaintiffs clearly said a trimming of JD’s hooves triggered lameness in the horse but the trimming, whenever it occurred, was not necessarily done in a negligent way. Trespass not proved [ 29 ] Lastly, I am not satisfied on balance of probabilities that Ms.

Hepburn is liable to the Furnivals for trespassing on their land when she repossessed JD. In my view, it is as likely as not - as per the evidence of Ms. Hepburn and Mr. Hepburn - that Mr. Hepburn and Mr. McQuarter went to the edge of the Furnivals’ property and removed the horse without trespass. V. CONCLUSION The appropriate order [ 30 ] It could be said that all disputes are unfortunate.

Whether all are, there is no doubt this one was very unfortunate; created in my view by an initial and substantial misunderstanding and then exacerbated by allegations back and forth between the parties, largely on social media sites. [ 31 ] As stated above, I am not satisfied there was an enforceable contract reached between the parties for the purchase of JD - given there was not a meeting of the minds between them - to support either a claim or counterclaim based on breach of contract. Nor, as stated, am I satisfied that Ms.

Hepburn is liable to the Furnivals for negligence or trespass. [ 32 ] Nevertheless, I am satisfied that it would be unjust to allow Ms. Hepburn to retain the $400.00 payment she received from the Furnivals on May 19, 2012, the date of the misunderstanding, given that she subsequently repossessed the horse. My goal is to return the parties to the position they were in on that original day. [ 33 ] I do not accept, as submitted by Ms. Hepburn, that she should be allowed to retain this sum as a form of rental for the time the Furnivals had JD.

That assumes there was an agreement for rental, and I have found there was not a legal and binding contract reached between the parties. Nor do I accept the Furnivals’ argument that fairness requires some accounting for the money they spent to keep JD for eleven months, given that: (1) this claim is based on the breach of a non-existent contract; and (2) regardless, there was no satisfactory proof of what these expenses were even if a contract had existed.

[ 34 ] In total, I order Ms. Hepburn to repay the sum of $400.00 to the Furnivals, together with interest under The Prejudgment Interest Act from the date it was received (May 19, 2012). The issue of costs [ 35 ]

Section 31 of The Small Claims Act, 1997 provides the authority for me to award costs at the conclusion of a case. This

section excludes lawyer-related costs, and Ms. Hepburn’s claim for the cost of consulting a lawyer about this dispute must fail. As well, I do not accept that she should be compensated for her lost wages related to this action, nor - considering that I have not upheld the claim of either party, but rather returned the parties to where they were on May 19, 2012 - do I view any other award of costs to either party as appropriate. R. Green, J [1] Morrison v. Burton , [1955] A.J. No. 16 (Alta. S.C.) at para. 13 .