Friesen Ltd. v. Cypress Colony, (1993) 87 Man.R.(2d) 250 (QB)

Judge:Jewers, J.
Court:Court of Queen's Bench of Manitoba
Case Date:July 06, 1993
Jurisdiction:Manitoba
Citations:(1993), 87 Man.R.(2d) 250 (QB)
 
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Friesen Ltd. v. Cypress Colony (1993), 87 Man.R.(2d) 250 (QB)

MLB headnote and full text

P.H. Friesen Ltd. carrying on business under the firm name and style of East-Man Feeds and the East-Man Feeds (plaintiffs) v. Cypress Colony Farms Ltd. (defendant) and William H. Granovsky carrying on business under the firm name and style of William Granovsky and Company and the said William H. Granovsky and I.D.C. Products Ltd. (third parties)

(Suit No. 89-02-336)

Indexed As: Friesen (P.H.) Ltd. v. Cypress Colony Farms Ltd. et al.

Manitoba Court of Queen's Bench

Brandon Centre

Jewers, J.

July 6, 1993.

Summary:

Cypress Colony Farms Ltd. (Cypress) purchased feed from Granovsky on a prepaid basis. I.D.C. Products Ltd. hauled the feed for Granovsky. The usual practice was for Cypress to place the orders with I.D.C., I.D.C. would then pick up the feed as arranged by Granovsky and Granovsky would bill the shipments to Cypress's account. Later, Granovsky defaulted and failed to supply the feed that Cypress had paid for. Cypress contacted I.D.C. and ordered more feed. I.D.C. placed the orders with East-Man Feeds. East-Man charged Cypress for the feed. Cypress refused to pay claiming it thought that it was still dealing with Gran­ovsky and that the feed had been paid for. East-Man sued Cypress for pay­ment on the grounds of contract and unjust enrichment.

The Manitoba Court of Queen's Bench allowed East-Man's claim on the ground of unjust enrichment.

Agency - Topic 322

Creation of relations - Parties - What constitutes an agent - [See Contracts - Topic 1595 ].

Contracts - Topic 1595

Formation of contract - Mistake, misun­derstanding or misrepresentation - General - Cypress purchased feed from Granovsky on a prepaid basis - I.D.C. hauled the feed - Cypress usually ordered the feed through I.D.C. - Granovsky defaulted and failed to provide the feed that had been paid for - When Cypress ordered more feed through I.D.C., I.D.C. placed the orders with East-Man Feeds - East-Man's name was on some of the bills of lading in five orders filled by East-Man - East-Man sued Cypress for payment in contract on the basis that I.D.C. was its agent - Cypress refused to pay claiming it thought it was dealing with Granovsky - The Manitoba Court of Queen's Bench dismissed East-Man's claim in contract - See paragraphs 1 to 21.

Interest - Topic 5482

As damages (prejudgment interest) - Res­titution - Cypress purchased feed from Granovsky on a prepaid basis - I.D.C. hauled the feed - Cypress usually ordered the feed through I.D.C. - Granov­sky defaulted and failed to provide the prepaid feed - When Cypress ordered more feed through I.D.C., I.D.C. placed the orders with East-Man Feeds - East-Man's name was on some of the bills of lading in five orders filled by East-Man - East-Man invoiced Cypress - Cypress refused to pay claiming it thought it was dealing with Granovsky - East-Man sued for unjust enrichment and claimed interest at the invoiced amount of 24% per annum - The Manitoba Court of Queen's Bench awarded East-Man prejudgment interest at the statutory rate of 11.5% - See para­graphs 32 and 33.

Restitution - Topic 62

Unjust enrichment - General - What constitutes - Cypress purchased feed from Granovsky on a prepaid basis - I.D.C. hauled the feed - Cypress usually ordered the feed through I.D.C. - Granovsky defaulted and failed to provide the feed that had been paid for - When Cypress ordered more feed through I.D.C., I.D.C. placed the orders with East-Man Feeds (i.e., $46,007.54) - East-Man's name was on some of the bills of lading in five orders filled by East-Man - East-Man sued Cypress on the ground of, inter alia, unjust enrichment - Cypress refused to pay claiming it thought it was dealing with Granovsky - The Manitoba Court of Queen's Bench held there was an unjust enrichment and allowed East-Man's claim - See paragraphs 22 to 31.

Cases Noticed:

Peter v. Beblow (1993), 150 N.R. 1 (S.C.C.), consd. [para. 26].

Cherrington v. Mayhew's Perma-Plants Ltd., [1990] 5 W.W.R. 208 (B.C.C.A.), consd. [para. 28].

Counsel:

B. Johnstone, for the plaintiffs;

W. Riedel, for the defendant;

The third parties were not represented.

This matter was heard in Brandon, Mani­toba, by Jewers, J., of the Manitoba Court of Queen's Bench, who delivered the following decision on July 6, 1993.

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