IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Mark Jacques Custom Upholstery v. Buchanan, 2017 NSSM 63

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1 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Mark Jacques Custom Upholstery v. Buchanan, 2017 NSSM 63 Claim: SCAR and SCY No Registry: Yarmouth Between: MARK JACQUES CUSTOM UPHOLSTERY CLAIMANT and LARRY BUCHANAN DEFENDANT Adjudicator: Andrew S. Nickerson, Q.C. Heard: April 27, 2017 Decision: May 10, 2017 Appearances: The Claimant, Misty Morrison The Defendant, self-represented AMENDED DECISION FACTS [1] Mark Jacques, the Claimant, testified that he is been in the upholstery business for 27 years and has owned his own business for the last seven years. He says that he was approached in February 2016 to do upholstery work in relation to the restoration of a vintage car for the Defendant. He says that they met in Yarmouth discussed material and design and that a sketch was produced. An estimate of $2900 to $3000 was given and a deposit of $1000 was paid. The Claimant says that the scope of the work was to be a complete interior for the vehicle including front dash, seats, door panels, sun visors, front armrests, back armrests, back dash panel, kick panels, headliner, soundproofing, underlay and trunk liner. [2] The Defendant, Larry Buchanan, resides in Yarmouth. He says that he was restoring a 1938 Ford and had heard of the Claimant s work. He acknowledged that they did meet in Yarmouth in February 2016 and says that they looked at some of the old original seats but that

2 no drawing was prepared. He does say that he did go through what he wanted, they discussed colour and that the Claimant knew what he wanted. [3] The Claimant says that he proceeded to order material and started to work as directed within three or four days. The seats and other elements were to be green and white. He says that he started cutting out the pieces and sent the Defendant an with photographs. He says he received a reply indicating that he was to reverse the colours. This was not pleasing to him as he had to order six more yards of the green material in order to accomplish this. He says that he then completed a second attempt which was not satisfactory to the Defendant either. Apparently this was as a result of the views of the vehicle restorer engaged by the Defendant. [4] The Claimant says that he had to make changes on four occasions. He expressed his frustration that he repeatedly asked the Claimant to come to his shop in Bear River, Nova Scotia to give him specific instructions and work out exactly what was to be done. This did not occur except once but the Defendant sent the gentleman who was restoring the vehicle named Ron who apparently operates in Weymouth Nova Scotia. He understood that Ron had authority from the Defendant to give him direction. [5] On the other hand, the Defendant says that all of the changes were necessary in order to make it right with what the Claimant had agreed to do. He says that the colours were not right. He says that when he did go to the Claimant s shop that he did instruct the Claimant that he was to do it the way Ron instructed. The Defendant acknowledged that he did send Ron twice for me. He thought after the meeting he went to personally everything was fine and everything would be done correctly. [6] The Claimant says that he called the Defendant and advised him that the pieces were done and ready for installation. He alleges that it was five months before he heard anything further and had not received any further funds. Eventually the Defendant called him and asked him to come to Yarmouth to install the headliner and other parts. The Claimant declined to do this stating that he had to have the vehicle in his shop to do the work properly but he was prepared to come to Yarmouth for an additional cost. The Defendant was not prepared to pay anything further. [7] In addition to the original work at the request of the Defendant, the Claimant produced some fender welting and this was supplied to the Defendant by the Claimant. Both parties acknowledged this. The Defendant says that all he wanted the Claimant to do was to come to

3 Yarmouth and put the headliner in and that he would at that time square up with him. In crossexamination the Defendant did acknowledge that until this point in time he understood that the installation would take place in Bear River. The Defendant did not want to put his vehicle in that shop because he considered it not to be sufficiently neat and tidy to be a suitable place for the work to be done. [8] There were a number of discussions and negotiations between the parties in an effort to settle the matter, none of which came to fruition. In addition there appeared to be a confrontation between the parties at the Claimant s shop in which the RCMP became involved. [9] The Claimant alleged that he should be paid $4,582 for the work that he did but gives credit for the $1000 that he was paid already. He also claims for interest, the storage of the completed material, the cost of filing and the cost of service. The Defendant says that he has not received anything but in any event he should never be required to pay anything greater than $2,900 in total even if his material is delivered. Submissions [10] Ms. Morrison urges me that I should award the account as submitted by the Claimant. She suggests there was a verbal contract to design and create the necessary material and that installation was to take place at the Claimant s shop. She argues that there were extensive changes made by the Defendant which I should not consider to be part of the original contract. She suggests that I should compensate the Claimant fairly for the time and materials and effort which he put in. [11] The Defendant suggests that the transaction was that he was to get an interior satisfactory to him for a price of approximately $3000 regardless of how many corrections were required. He suggests that I should reduce whatever award I make by $1100 because that is what he would have to pay to put the headliner in his vehicle. He does not believe that he should be required to pay for the fender welting. [12] At the end of the case I asked Ms. Morrison to confirm that the materials which the Claimant had prepared for the Defendant were in fact still available and could be delivered.

4 Analysis and law [13] Overall my assessment of the evidence is that the Claimant was quite capable of being impulsive and emotional, but I do believe that he sincerely tried to do the job to the best of his ability. On the other hand, my assessment of the Defendant is that he knew in his mind what he wanted for his vehicle, but did not make sufficient effort to communicate that to the Claimant. This is not to be critical of either of these gentlemen. It simply highlights the underlying problems with respect to communication between them. I am satisfied that whether or not a sketch was prepared the Claimant left the February 2016 meeting in Yarmouth with a fairly clear idea of what the Defendant wanted, but lacking in detail, leaving quite a lot to the Claimant s judgment. I am further satisfied that the Defendant did change his mind about certain aspects of the work. [14] I am satisfied that the Defendant did send his restorer, Ron, to the Claimant s shop to give instructions and that Ron did indeed have authority to give those instructions. I am satisfied that eventually the Claimant performed the work to Ron s satisfaction and to the Defendant s satisfaction. The dispute that remained largely centred around where the installation would take place. I find that the contract was that the installation was to take place in the Claimant s shop in Bear River. I cannot fault the Claimant for refusing to do the installation elsewhere. [15] I am not satisfied that the Defendant was diligent in conveying to and explaining to the Claimant precisely and exactly what was required. I do agree with the Claimant that the Defendant should have gone to his shop, sat down and given very clear and precise instructions. The Defendant did not do this. It is clear to me that the Defendant had a general vision in his head of what he wanted, but I don t think he understood how difficult it is to make that vision precise and to communicate that vison. Things of an artistic and creative nature take effort to work out and communicate and the Claimant cannot be expected to know what is expected without more effort than the Defendant gave this process. I am satisfied that this did indeed cause the Claimant to have to do additional work that should not have been necessary. The evidence is unclear as to exactly how much extra work and materials was required because of the Defendant s changes or how to place an exact cost on it. [16] I am also satisfied that the welting was not part of the contract and that the Claimant should be compensated for it. The Claimant s documentation claims $ for the preparation and provision of that material. I am prepared to allow that amount.

5 [17] As to the Defendant s claim of $1,100 to do the installation I really do not have any evidence concerning that other than the Defendant s assertion in his submissions. He did not refer to it during his testimony from the witness stand. I am not prepared to allow a deduction for this. [18] I am satisfied that the Claimant was ready willing and able to do the installation at his facility in Bear River. He cannot be faulted that the Defendant declined. [19] In my view the fair balancing of the unquantifiable amount for the extra work and the unquantifiable amount for the installation would be for the Defendant not to have to pay anything more than the original price and the Claimant not to be required to do the installation. [20] I find that the original price quoted was $2,900, of which $1,000 has been paid. As to the claim I therefore am prepared to allow for the contract and the welting a total sum of $3, The net judgement will be for $2, [21] My order will further direct that the amounts I will order paid will be paid to Ms. Morrison in escrow. The condition of the escrow will be the delivery of the completed pieces by Mr. Jacques to the Defendant, which Mr. Jacques will do at his expense. [22] I find that the Claimant has been relatively successful and I therefore am prepared to allow costs consisting of the filing fee of $ The file indicates that a process server was used but I do not have a copy of the process server s invoice. I will allow Ms. Morrison 10 days from receipt of this decision to provide a copy of the invoice for, failing which I will enter judgment without that cost being allowed. [23] I wish the parties to understand that I was not present during their discussions and can never be certain of exactly what went on between them, but I have done my best to determine what the agreement was and determine a fair resolution. My impression of both parties was that they were in general good hard-working people. This case, as many cases do, highlights the fact that when people are not careful and precise in their communications and allow their emotions to govern their judgment that courts often end up having to resolve matters between them. Dated at Yarmouth, NS this 21st day of June, Andrew S. Nickerson Q.C., Adjudicator