C. & L. Transport Ltd. v. Brine
Counsel
Leonard C. Jones, for the Plaintiff
Hazen Brien, for the Defendant
[1] Miller J.: Both plaintiff and defendant were involved in hauling pulp and logs from various locations to a mill in Saint John. It was through this common endeavour that Clarence Cormier, owner of the plaintiff company, and the defendant became acquainted.
[2] In the month of May, 1987, the defendant purchased a 1982 Ford tractor (truck) from another party similarly employed. This equipment was used in the same operation and was operated by an employee, one Vincent Breau, until the end of September, 1987.
[3] Mr. Cormier approached the defendant attempting to purchase the tractor. Initially, the defendant was only interested in selling the trailer but the plaintiff wanted both tractor and trailer.
[4] The evidence does not indicate that there was any negotiation or bargaining as to price. Cormier did not take the vehicle for a test drive, did not check the odometer and did not have the vehicle examined by a mechanic.
[5] Cormier knew that the previous owner had trouble with the tractor and he was told by both the defendant and the defendant's driver that the tractor was burning or using three to four gallons of oil per week. He was also told that the defendant had had no trouble with the tractor except for the excessive use of oil.
[6] Despite this information the plaintiff purchased the tractor at a price of $30,000.00 plus tax and the trailer for $15,000.00 plus tax.
[7] The transaction was completed October 6, 1987, and the defendant was paid the purchase price. On the following three days, Clarence Cormier drove the tractor, making a total of four trips to the Saint John mill. Then his employee Donald LeBlanc drove the vehicle until October 23, 1987, when it was taken off the road and towed back to the plaintiff's premises.
[8] The tractor was later taken to the premises of Tractors & Equipment (1962) Limited in Moncton where major repairs were carried out at the cost of $16,603.79.
[9] The basis of the action is that, according to the plaintiff, from the time the tractor was purchased it used, not the three to four gallons of oil per week as Cormier was informed by the defendant, but three to four gallons of oil per trip. The documentary evidence does not support this allegation of the plaintiff but the defendant is in no position to deny the quantity of oil used.
[10] On the other hand, the plaintiff did offer in evidence a diary kept by the defendant's employee in which he recorded the fuel and oil purchased and used in the vehicle. This document does support the defendant's version of the amount of oil used and the information given by the defendant to the plaintiff's owner Clarence Cormier.
[11] There can be little doubt that the vehicle was not functioning properly when it was purchased. The plaintiff's expert witness confirmed that the information given Mr. Cormier would indicate to him that the engine was not functioning properly. It should be noted that Mr. Cormier has been a truck driver for some 20 years.
[12] John Pickel, the manager of the company which carried out the repairs, could not state whether all of the problems rectified, when the engine was repaired, arose before the tractor was purchased by the plaintiff.
[13] But I think that question is not an issue in the determination of this action.
[14] The plaintiff seeks to recover the costs of repairs, interest and damages for loss of use.
[15] There was no evidence whatsoever that the defendant warranted or guaranteed the tractor at the time of the sale. The defendant disclosed the only problem of which he was aware and the plaintiff purchased it with full knowledge of the problem and without any further examination or investigation. There is no basis for the plaintiff's claim at common law.
[16] The plaintiff also has relied on the Sale of Goods Act, R.S.N.B. 1973, C. S-1 with particular reliance on Section 15, as well as on the Consumer Product Warranty and Liability Act, R.S.N.B. 1973, C. 18.1.
[17] The latter mentioned statute clearly has no application for Section 2(2) provides:
2(2) This Act does not apply to the sale or supply of a consumer product by a seller or supplier
(a) who is not a distributor of consumer products of that kind and does not hold himself out as such;
[18] The defendant was known to the plaintiff as a trucker and not as a distributor of motor vehicles. This legislation designed to protect consumers has no application in private transactions such as this purchase and sale.
[19] The applicability of Section 15 of the Sale of Goods Act provides no more comfort for the plaintiff:
15 Subject to the provisions of this Act and of any Statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:
(a) where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description that it is in the course of the seller's business to supply, whether he is the manufacturer or not, there is an implied condition that the goods are reasonably fit for the purpose, but in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose;
(b) where goods are bought by description from a seller who deals in goods of that description, whether he is the manufacturer or not, there is an implied condition that the goods are of merchantable quality; but if the buyer has examined the goods, there is no implied condition as regards defects that such examination ought to have revealed;
(c) an implied warranty or condition as to quality or fitness for a particulr purpose may be annexed by the usage of trade;
(d) an express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.
[20] Both counsel in pre-trial briefs appear to adopt the position of Professor Fridman, in Sale of Goods in Canada wherein he refers to the relevant factors attaching to the implied conditions of Section 15. He says:
Three factors are therefore relevant: (i) the course of the seller's business; (ii) knowledge on the part of the seller of the purpose of the goods; (iii) reliance on the seller's skill or judgment. Only if a contract of sale satisfies these requirements will it be possible to imply into it the condition of fitness of the goods that is contained in this subsection.
[21] In my opinion it is clear that the plaintiff can find no support in this statutory provision for the very basic reason that the sale of the tractor was not in the course of the seller's business. For as Professor Fridman adds:
The requirement that the goods be of the kind which the seller normally deals with in the course of his business means that a private sale is not within the section.
[22] The plaintiff's action is therefore dismissed with costs. The defendant will be entitled to costs (as well as disbursements) in an amount of $2,100.00 applying Scale 2 to an amount involved of $20,000.00.
Back to New Brunswick's Consumer Product Warranty Legislation Home Page.