DATE: 20010216

DOCKET: C33044

COURT OF APPEAL FOR ONTARIO

RE: FIERMAN PRODUCE EXCHANGE INC. (Plaintiff/ Respondent) –and– GERARD ARTHUR DAVOREN, DESMOND JOSEPH DAVOREN and SEAN PATRICK DAVOREN and GERARD ARTHUR DAVOREN, DESMOND JOSEPH DAVOREN and SEAN PATRICK DAVOREN carrying on business as 3-D ENTERPRISES, 3‑D INDUSTRIES LIMITED (Defendants/Appellants)

BEFORE: MORDEN, WEILER and CHARRON JJ.A.

COUNSEL: Andrew Y.J. Sheremeta, for the appellants

Helen Pelton, for the respondent

HEARD: February 14, 2001

RELEASED ORALLY: February 14, 2001

On appeal from the judgment of Justice Paul G. Philp dated September 20, 1999.

E N D O R S E M E N T

[1] The appellants appeal from the judgment of Philp J. awarding damages of $24,882.30 plus interest to the respondent. This sum represented the deposit paid by the respondent for the delivery of a machine known as a quadmatic baling system poly/paper model.

[2] The appellants submit that the trial judge erred in finding that the partnership “3-D Enterprises” was a party to the contract as opposed to the company “3-D Industries Ltd.”

[3] There was evidence on which the trial judge could find that the partnership 3‑D Enterprises was a party to the contract. Among them is the fact that the respondent’s cheque made out to 3-D Enterprises as a deposit on the machine was not returned to him but was negotiated.

[4] The evidence reasonably supports the further findings that the contract was breached by the appellants in October of 1990; that, thereafter, the parties were never ad idem on the terms relating to the sale of this machine; that, as a result, the respondent was not obliged to make the second payment on the machine and, ultimately, was entitled to the return of its deposit.

[5] We are also of the opinion that the trial judge did not err in dismissing the appellants’ counterclaim given his acceptance of the evidence of the respondent and his rejection of the evidence of the appellants’ witness.

[6] The appellants’ submission concerning the rate of prejudgment interest is answered by the respondent’s submission that the appellants had in effect agreed to pay even more interest than was awarded.

[7] The appeal is therefore dismissed with costs.

Signed: “J.W. Morden J.A.”

“K.M. Weiler J.A.”

“Louise Charron J.A.”