Fischer v. Dyck Forages & Date:, 2011 MBCA 47

Citation: Fischer v. Dyck Forages & Date: 20110601 Grasses Ltd., 2011 MBCA 47 Docket: AI 11-30-07493 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Martin H. Freedman Mr. Justice Alan D. MacInnes BETWEEN : ENGELBERT FISCHER ) G. G. Zazelenchuk ) for the Appellant (Plaintiff) Respondent ) ) S. C.

Scarcello - and - ) for the Respondent ) DYCK FORAGES & GRASSES LTD. ) Appeal heard and ) Decision pronounced: (Defendant) Appellant ) June 1, 2011 HAMILTON J.A. (for the Court): 1 The plaintiff sued in contract for payment of the balance of the price to be paid for seed delivered to the defendant. The contract was only partly in writing. The written portion stated that the payment terms were “1/2 on delivery, balance after receipt of analysis,” that the seed was to be “Eligible for Certified 1 Seed,” and that the price for the seed was $1.50 per pound, less cleaning costs.

To be “Eligible for Certified 1 Seed” requires the germination count to meet a specific threshold. The written contract did not state how the germination count analysis would be done. 2 The defendant employed a very highly qualified analyst who tested the germination count of the loads of seeds as each was delivered by the plaintiff. The defendant did not complain at, or about, that time as to the germination count of any of the loads. 3 Issues subsequently arose as to the germination count of some of the seed after one of the defendant’s customers complained.

As a result, the defendant, who had paid the plaintiff $150,000 on deposit, purported to have the $150,000 applied in full payment of the price for the seed it had bought from the plaintiff and resold.

Such amount was approximately only $1.25 per pound rather than $1.50 per pound for that seed. 4 The defendant eventually returned to the plaintiff the unsold seed, which the plaintiff sold for a price in excess of $1.50 per pound. 5 The plaintiff sued for the payment of $21,006.79, being the difference between the $1.50 and $1.25 per pound for the seed sold by the defendant, less cleaning costs for the seed that the defendant returned to the plaintiff.

The trial judge granted judgment in favour of the plaintiff in this amount plus pre-judgment interest from October 24, 2003. 6 The trial judge was called upon to make numerous findings of fact, with which the defendant takes no issue. These included the finding that the contract contemplated that the assessment of the seed to determine the germination count would be done in- house by the defendant and payment would be made on completion of that assessment. The trial judge found that the payment was not made.

He stated in his reasons that the resale of the unsold seed by the plaintiff was “not in issue in this case” (at para. 8). 7 The defendant appeals, arguing that the term “Eligible for Certified 1 Seed” was a fundamental term of the contract and that the resale by the plaintiff mitigated the plaintiff’s damages. 8 We are not persuaded by either of these grounds of appeal in light of the uncontested findings of fact made by the trial judge. 9 The trial judge understood the issues before him. He made clear findings of fact for which there was supporting evidence.

Crucial to his judgment was the finding that payment of $1.50 per pound was to be made to the plaintiff upon the defendant determining through its in-house analysis that the germination count met the eligibility for “Certified 1 Seed.” 10 As to the mitigation argument, we agree with the plaintiff that the principle of mitigation has no role to play in this claim

given that the plaintiff sued for payment of a contract debt and not for damages for breach of contract. See Manufacturers LifeInsurance Co. et al. v. Granada Investments Ltd. et al. (2001), (ON CA), 150 O.A.C. 253; Wayne Ryan Carpet SalesLtd. v. Wilson (1993), 1993 NSCA 70 , 120 N.S.R. (2d) 87 (C.A.); and Wilmot v. Keenlyside, [1989] B.C.J. No. 2020 (C.A.)(QL). Further, we accept the plaintiff’s argument that the resale of the seed by the plaintiff was a result of a new agreement between theparties. That explains why the trial judge stated that the resale of the unsold seed by the plaintiff was not an issue in this case. 11 The appeal is dismissed with costs. J.A. J.A. J.A.