2011 QCCQ 3092, 2011 QCCQ 3092

Basseltex inc. c. Schneider 2011 QCCQ 3092 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-171043-105 DATE: March 28, 2011 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ BASSELTEX INC. Plaintiff v.

STEPHEN SCHNEIDER and GLORIA DAVID SCHNEIDER Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendants, jointly and severally, the sum of $9,000.00$. [ 2 ] According to Plaintiff, this amount is owed to it by Defendants pursuant to a loan concluded on April 23, 2007 (exhibit P-1). [ 3 ] In support of its claim, Plaintiff alleges the following in the "motion introductive of instance": « 1.

That Plaintiff agreed to loan unto Defendant sums of money and for which Defendants herein acknowledged their indebtedness on April 23 rd , 2007, to the extent of $36,188.50, the whole as more fully appears from their acknowledgement, which is herewith produced as Plaintiff's Exhibit P-1, the whole to avail as if more fully set forth at length; 2.

That at the present time there remains due and owing by Defendants to the Plaintiff, the sum of $9,000.00, representing six (6) cheques each in the amount of $1,000.00, and a final payment in the amount of $3,000.00, one of which dated April 30, 2010 was presented for payment, which a stop payment order was effected, the whole of more fully appears from the said cheques, which are herewith filed and produced en-liasse as Plaintiff's Exhibit P-2, same being tendered unto Defendants for payment for all legal purposes; (…) 4.

That in view of the foregoing, Plaintiff claims from Defendants jointly and severely the sum of $9,000.00 together with interest and legal indemnity calculated from May 14 th , 2010, with costs. » [ 4 ] Defendants contest Plaintiff's action. [ 5 ] More particularly, in the contestation that they have filed in court, Defendants allege that the loan has been repaid in full and that in fact, Plaintiff owes them an amount of $1,298.83 as a result of an overpayment.

This amount is claimed by Defendants by way of cross-demand. [ 6 ] Louis Fleischer, president of Plaintiff, testified on his behalf, as did Stephan Schneider for defendants. Defendant, Gloria David Schneider, did not testify on her behalf. [ 7 ] In his testimony, Mr. Fleischer declared that Defendants acknowledged their indebtedness towards Plaintiff on April 23, 2007 pursuant to a document signed by said Defendants (exhibit P-1). [ 8 ] This acknowledgement of debt was preceded by a loan document concluded on April 9, 2007 between 177281 Canada Inc.

and Plaintiff for an amount of $37,403.50. [ 9 ] Defendants guaranteed the repayment of the loan. [ 10 ] The evidence adduced at trial has revealed that Defendants made several payments to Plaintiff in repayment of the amounts owed to it by them. [ 11 ] In March 2010, Mr. Fleischer met with Defendant, Steven Schneider, to discuss the modalities of repayment of the outstanding balance of the loan. Previously to this meeting, Defendants had remitted merchandise to Plaintiff who had given them a credit in the amount of $9,000.00 to be applied in reduction of the outstanding debt.

Defendant, Gloria David Schneider, was not present at this meeting. [ 12 ] After having discussed the matter, Mrs.

Fleischer and Defendant, Steven Schneider, agreed that an outstanding balance of $9,000.00 was still owed by Defendants to Plaintiff. [ 13 ] To pay this outstanding balance, Defendant, Steven Schneider, agreed to issue seven (7) postdated cheques (exhibit P-2) totaling the amount of $9,000.00. [ 14 ] After having remitted the cheques to Plaintiff, alleging that he subsequently realized that the amount of $9,000.00 was not owed to Plaintiff, Defendant, Steven Schneider, ordered his bank to stop payment of the said cheques.

As a result of this stop payment order, Plaintiff instituted the present judicial proceedings. [ 15 ] In the opinion of the Court, by issuing the seven cheques totaling $9,000.00, Defendant, Steven Schneider, acknowledged that the said amount was still owed to Plaintiff by Defendants. [ 16 ] In order to put aside this acknowledgment of debt, Defendants must establish that the loan in the amount of $36,188,50 was repaid in full and that they were erroneously led to believe by Mr.

Fleischer that $9,000.00 was still owed to Plaintiff. [ 17 ] The documentary evidence filed by Defendants to support their allegation of full payment of the loan, and more particularly, the evidence regarding alleged cash payments made to Plaintiff was clearly inconclusive. [ 18 ] The Court is in the opinion that Defendants have not established, by convincing documentary evidence, that the loan intervened on April 23, 2007 was repaid in full to Plaintiff.

Furthermore, Defendants did not establish that the seven (7) cheques totaling the amount of $9,000.00 were issued by mistake. [ 19 ] Consequently, Plaintiff's action is maintained against both Defendants. FOR THE FOREGOING REASONS , the Court: MAINTAINS Plaintiff's action. CONDEMNS Defendants, jointly and severally, to pay to Plaintiff the sum of $9,000.00 with interests at legal rate plus the additional indemnity provided for by

article 1619 of the Civil Code of Quebec as of May 14, 2010, the whole with costs. DISMISSES Defendants cross-demand, without costs. ________________________________ ARMANDO AZNAR, J.Q.C. Me Edward Druker DRUKER NARVEY GREEN SCHWARTZ Plaintiff attorney Mr. Stephen Schneider Mrs. Gloria David Schneider Defendants

Date of hearing: February 10, 2011