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Counsel:

William F. Fenton, Esq., for the plaintiff

Gordon Hunter, Esq., for the defendant

[1]  Dickson, J.: In this action the plaintiff, who resides at Juniper, claims against the defendant company, which has its head office at Bristol and there carries on a motor vehicle dealership, rescission of a contract made by him with the defendant in September 1980 for the purchase of a 1980 GMC 3/4-ton truck and repayment of the purchase price of $10,950.00 paid by him to the defendant together with interest, or alternatively, the return to him of the truck purchased with installed therein a motor meeting the specifications of that which he says was the subject of the contract. The plaintiff alleges that it had been represented to him by the defendant at the time of the purchase that the truck was equipped with a 292 cubic inch 6-cylinder motor whereas the truck delivered to him was equipped with a 252 cubic inch motor. The plaintiff relies on s.4 of the Consumer Product Warranty and Liabilities [sic] Act, c.C-18.1, R.S.N.B. 1973 (herein "the Act"). Alternatively the plaintiff bases his entitlement to the relief claimed on the alleged circumstance that representations made by the defendant as to the size of the motor, either express or implied, were material, were false, and constituted fraudulent misrepresentation. The defendant denies that it was ever represented to the plaintiff that the vehicle had a 292 cubic inch motor and further denies the plaintiff's entitlement to the relief claimed. More particularly, in respect of the plaintiff's reliance upon the Act, the defendant alleges that the vehicle involved was not a consumer product within the meaning of the Act and that therefore the Act has no application to its sale.

[2] The pertinent circumstances as disclosed by the evidence were as hereunder set out and I so find.

[3] The plaintiff, who is 54 years of age, has for many years been engaged on a self-employed basis, in lumbering and in cutting and dealing in logs, pulp and firewood. At all relevant times he has owned a skidder and has employed a couple of men. The defendant company, of which one Dale Hitchcock is president and owner, holds a GMC dealership and operates from a garage premises at Bristol.

[4] The truck complained of was purchased by the plaintiff from the defendant on September 2, 1980. It was a 1980 GMC 3/4-ton with a 252 cubic inch motor and automatic transmission. The vehicle was new except for having been driven a couple of months as a service vehicle by employees of the defendant, of which circumstance the plaintiff was aware.

[5] The plaintiff had done business with the defendant for about twelve years or so and over that period had purchased three or four 1/2-ton trucks and "a couple of cars". In early 1980 he owned a 1979 GMC 1/2-ton with a 252 cubic inch motor and a 3-speed manual transmission which he had purchased from the defendant in the fall of 1978. This he used in connection with his woods operations and for his personal use in lieu of an automobile.

[6] In January 1980 he had begun to think about trading because, as he says, the vehicle, which by then had considerable mileage on it, was using oil and he did not find its power adequate. At the time he had been accustomed to dropping in frequently at the defendant's premises and there looking over the trucks on the sales lot and discussing them casually with the defendant's various salesmen.

[7] Here one might note that the lighter GMC truck range comprises both 1/2-ton and 3/4-ton trucks which are equipped with various options in motor sizes and types of transmission, etc. The body and general appearance of 3/4-ton and 1/2-ton models are essentially identical, with the principal exception being that the former is equipped with larger tires and wheels and stands higher off the ground. The 3/4-ton model also frequently has a longer wheel base and a larger box and sometimes a different gear ratio in the transmission system. Both types of vehicle are normally equipped with either a 6-cylinder 252 cubic inch or a V-8 5-litre (or 305 cubic inch) engine. Some engines manufactured by the same and other manufacturers are apparently 292 cubic inch or 4.8 litres. While a 252 2-carburetor engine is rated at 130 hp, a 292 1-carburetor engine is rated at only 115 hp.

[8] Here it may also be noted that the 3/4-ton vehicle sold in September 1980 -- if it has any real significance -- had at all material times affixed to the top of the radiator under the hood a small instruction sheet bearing instructions in small print and a diagram covering the vehicle emission control system of the vehicle. In one corner of the sheet, also in small print, it was indicated that the instructions applied to a "VR 5-litre" engine. The engine of this particular vehicle was not of course that type of engine but a 6-cylinder 252 cubic inch.

[9] The plaintiff claims that he was fully led to believe that in September he was purchasing a truck with a heavier engine than his previous one had, namely one of 292 cubic inch capacity. And in so claiming he says that he relied upon representations made to him by Mr. Hitchcock when he first enquired concerning the vehicle in the early spring of. 1980 and as well upon reference to a "5-litre" engine in the emission control instruction, and upon reference also, as he claims, to a 292 cubic inch engine in a sales sticker which was affixed to a window of the vehicle at the time of sale.

[10] The plaintiff testified that in the spring of 1980 he had looked over various trucks on the lot and had observed on the truck which he subsequently bought a window sticker indicating "1980 GMC -- 6 cylinder -- 292 c.i." and that he had assumed it had a larger motor than the truck he then owned; that in speaking at the time with Mr. Hitchcock in his office the latter had told him that the truck had a 300 cubic inch motor and quoted a price of $4,000.00 after allowance for the trade-in of his then vehicle; that Mr. Hitchcock had appreciated that he wanted a "heavier" truck; that he could not afford to buy a vehicle then and let the matter go, although later he had called by at the garage frequently and had talked to various salesmen about vehicles; that he had decided to buy the 1980 GMC on September 2 and had then dealt with another salesman, one Matthews; that before doing so he had enquired of Mr. Hitchcock's father, who was employed by the defendant as a mechanic, and who he knew had been using the truck through the summer as a service vehicle, about its performance and had been assured that it performed well and gave good mileage; that he could not recall whether he had actually tried out the truck on the road before completing the purchase; that he had paid a cash balance of $5,400.00 for the truck, after allowance for the trade-in of his 1979 vehicle, and had arranged financing through a bank; that the bank loan (which included other financing as well) had involved monthly payments of $325.00 which he has since kept up; that he had driven the truck for about a week when he had become dissatisfied with it, particularly as he found that it stalled on occasion and also shifted from one gear to another unduly frequently; and that shortly after that he had complained about the truck and had been told that the defendant would take the matter up with the manufacturer.

[11] The plaintiff further testified that nothing had come of this and that he had subsequently returned the vehicle to the defendant's yard where he had left it. He acknowledged that he had talked to Mr. Hitchcock on only the one occasion, viz. in the latter's office. After the return of the truck he had used another truck which he owned, and subsequently in the summer of 1982 had purchased a truck from another dealer but this has since required replacement of two engines.

[12] Other witnesses give a different account of the initial conversation with Mr. Hitchcock and of what was contained on the window sticker.

[13] Mr. Hitchcock testified that the plaintiff, during one of his frequent visits to the garage, about the end of January had advised him that he found his 1/2 ton too light for its work; that he had at the time tried out a 1979 Ford manual but in which he was not interested; that he had at the same time looked at the 1980 GMC which was also on the lot; that in late February he had again looked at the GMC in company with a salesman one Ellis and the two of them had attended on him in his office; that the plaintiff had enquired of him if the truck had a "292 motor" to which he had mistakenly replied in the affirmative; that Mr. Ellis immediately corrected him and stated to the plaintiff that it was in fact a 252; that he had no further conversation with the plaintiff until October although he was aware that the plaintiff had purchased the truck through another of his salesmen one Matthews in early September.

[14] Mr. Hitchcock further testified that when Matthews had advised him of the sale he (Hitchcock) had made up a bill of sale which was given to the plaintiff in order to arrange bank financing; that the bill of sale (which is in evidence) showed the stock number of the vehicle as "No. 372"; that a description of the model-type on the bill of sale as "1/2 ton" was entered in error; that the window sticker placed on the vehicles were normally filled out by salesmen and showed only the stock number, the make, model and year, type of transmission and colour, with no reference to the size of motor; that in October the plaintiff had visited him and had enquired if he knew the truck had only a 250 cubic inch motor; that as the plaintiff was dissatisfied with the truck he had undertaken to check with the manufacturer's representative to see "if anything could be done"; that in November the plaintiff had subsequently left the vehicle at the defendant's premises for servicing but had never picked it up and there it still sits; that the next he heard about it was by letter from the plaintiff's lawyer; that he learned of the reference to a 5-litre motor on the radiator sticker only at the discovery after the action had commenced and the matter of any representation having been made thereby was at no time earlier raised.

[15] The salesman Ellis, who retired in the fall of 1981 after 9 years with the defendant company, testified that he had placed the sales sticker on the window; that there was no reference to a 292 cubic inch motor on the sticker; that to the best of his knowledge the defendant had never had at any time in stock a GMC vehicle with a 292 motor; that he had been present with the plaintiff in Hitchcock's office when the plaintiff had enquired whether the truck had a 292 motor and had corrected Hitchcock, pointing out that it was "a 250"; (by which term a 252 is apparently at some times loosely described); that he had been aware of the reference to a 5-litre engine on the emission control sheet but at no time considered it of any significance; that in the initial conversations about the time the plaintiff had talked to Hitchcock he had stated only that he wanted "a heavier truck", which meant to him (Ellis) only that he wanted a higher truck with larger wheels; and that the plaintiff had not again talked to him after the initial conversation.

[16] Mr. Hitchcock's father testified that the plaintiff, who visited the premises frequently, had casually enquired of him about the truck about a week before he purchased it; that the plaintiff had enquired particularly how it worked and if the gas mileage were satisfactory; that he had told the plaintiff that its performance and mileage were both good; that he also stated to the plaintiff that it was an automatic and had a "small six" motor; and that he had suggested to the plaintiff that he try out the vehicle, but was not aware if he had in fact taken it for a test-drive.

[17] I am unable on the basis of the evidence to conclude that the plaintiff was in any way led to believe by representations of the defendant or its agents that the truck he purchased in September 1980 had a motor any more powerful or larger than that with which it was equipped. The plaintiff gave the impression of being an honest and sincere witness even though much of his evidence could only be considered somewhat vague. I am satisfied that he is wrong in his recollection of the nature of the conversation with Mr. Hitchcock when they discussed the vehicle in the latter's office in February. I accept totally the version of that conversation as described in the testimony of Mr. Hitchcock and of Mr. Ellis. In any event the plaintiff's dealings at the time, which could only have been rather casual in nature, were primarily with the salesman Ellis. He did not again talk to Mr. Ellis about the matter and when he finally decided, some six months later, on purchase chose to deal with another salesman. The plaintiff has acknowledged in his testimony that the motor, on visual inspection, gave every appearance of being the same size and capacity as the 252 motor in the truck which he then owned. Any reasonable person would surely in that circumstance have made further enquiry and not relied upon a casual conversation which took place some six months earlier.

[18] I am also satisfied on the evidence that the sale sticker on the vehicle's window made no reference to the size of the motor. It did in fact bear the stock number "372". The sticker had disappeared from the window shortly after the purchase and is no longer available for inspection. I have no doubt that the frustrations which the plaintiff may very possibly have subsequently experienced in his use of the vehicle for the purposes for which it was employed may well have coloured, post facto, his recollection of the actual number on the sticker and of its import.

[19] I am further satisfied that the contents of the small emission control system instruction sheet affixed to the radiator had no bearing whatever in inducing the plaintiff to believe that the motor was larger than it in fact was. It was clearly an instruction sheet pertaining only to the emission control system. It referred to a V-type motor, which that particular motor patently was not. No reference was made to the contents of the sheet in the plaintiff's complaints to the defendant following the purchase and the matter appears first to have been mentioned only at the time of discovery. Having heard the plaintiff 's testimony one can only suspect most strongly that the plaintiff, even assuming that he was aware of the sheet before the purchase was made, had no appreciation of the significance of the description "5-litre" in terms of cubic inch capacity. In particular, I find that it would in any event be unreasonable for the plaintiff to have relied on any information contained in the instruction sheet, insofar as motor size was concerned, and that therefore such information could not be considered a warranty under s.4 of the Act.

[20] In the result it is unnecessary for me to decide whether or not the vehicle sold was a consumer product within the meaning of the Act. I may observe that had such been necessary I would have been inclined to have found in the affirmative, because surely a 1/2 ton or 3/4 ton truck required for use by one living in a rural area -- and perhaps therefore in any area -- must be considered just as much an item of personal property "commonly used for personal (or) family . . . purposes" as would any automobile or other similar lighter form of conveyance.

[21] The plaintiff's claim is dismissed with costs to follow the event. Such costs shall be those provided for under Scale 3 of the tariff based on an "amount involved" of $7,000.00.

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