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Dunham v Lewis

New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Moncton

Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.

Maritime Law Book Ltd. Summary:

The plaintiff sued for damages arising out of the sale of an allegedly faulty and defective used car. The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action.

Consumer Law - Topic 1601

Performance of the contract - Delivery - Inspection - General - On July 6, 2002, Dunham purchased a 1996 car from Lewis for $4,200 - The day before, Dunham had driven the car around Lewis's yard but was not permitted to leave the property because the car was uninsured - Dunham requested no further inspections - After leaving Lewis's home and driving nine kilometres, Dunham discovered that the car was not working properly - Although Lewis was agreeable to the car being returned at that time, it was agreed that it would be taken to a mechanic - The mechanic determined that the problem was probably the distributor - On July 8, a distributor was located - Lewis refused to pay for the distributor and refused to take the car back - The distributor and rotor were eventually replaced at a cost of $1,353.17 - The New Brunswick Court of Queen's Bench, Trial Division, dismissed Dunham's action for damages - Dunham had all reasonable opportunity to examine the car before making the purchase - It was not unreasonable that Dunham, purchasing a 1996 vehicle for $4,200, might incur mechanical difficulties.

Cases Noticed:

Peters v. Parkway Mercury Sales Ltd. (1975), 10 N.B.R.(2d) 703; 4 A.P.R. 703 (C.A.), refd to. [para. 14].

Counsel:

Claimant appeared on his own behalf;

Defendant appeared on his own behalf.

Tuck, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, heard this action on January 21, 2004, and delivered the following judgment on February 12, 2004.

INTRODUCTION

[1] Tuck , J. : The claimant, Josh Dunham, claims against the defendant, Chris Lewis, for damages arising out of the sale to him by the defendant of an allegedly faulty and defective 1994 Mazda motor vehicle. The claimant's claim alleges breach of contract, misrepresentation and failure to deliver the motor vehicle in good and working order. The defendant alleges the motor vehicle in question was sold in good faith with no misrepresentation. Further particulars of the claim and response as revealed in the filed Form I and Form II.

BACKGROUND

[2] On July 5 th , 2003, Josh Dunham was looking to buy a car. He drove by the home of Chris Lewis and spotted a car for sale. He later called Mr. Lewis then attended Mr. Lewis's home. Mr. Lewis did not want Mr. Dunham to drive the vehicle off the property at this time because he did not have insurance. However, he did let him take the vehicle for a drive around the yard. Mr. Lewis indicated in testimony he would have put insurance on the car the following Monday. Mr. Dunham left without purchasing the vehicle. Mr. Dunham returned on July 6 th , and purchased the vehicle for $4,200.00 from Mr. Lewis. There is no evidence of any request to further inspect the vehicle or to wait until Monday to purchase the vehicle.

[3] Mr. Dunham left with the vehicle in question and after driving about nine kilometers, pulled into an Ultramar gas station because the vehicle was, as he described it, not working properly. After talking to Mr. Lewis, he became aware that sometimes around turns the car may cut out if it is low on gas. Mr. Dunham put gas in the car to no avail. Mr. Lewis admitted he was at this time, agreeable to having Mr. Dunham return the car. According to Mr. Dunham he and Mr. Lewis agreed however that Mr. Dunham could take the car to a mechanic and have it looked at, indicating to the effect that maybe the problem was a minor one. Mr. Lewis testified Mr. Dunham was to take the car home to see if it might be working better.

[4] On July 7 th , when the car would not start, Mr. Dunham had it towed to a garage where it was determined the problem was probably the distributor. After a discussion with Mr. Dunham, Mr. Lewis attended at the garage as he was of the belief he might be able to fix the car by cleaning the distributor cap. After cleaning the distributor, the car would still not start. Mr. Lewis noted he had recalled that some three years earlier there was a problem with water in the distributor cap after the car was shampooed, which he had, at the time, rectified by cleaning it. This time he was not successful. Mr. Dunham and Mr. Lewis agreed to look for a replacement distributor.

[5] On July 8 th , Mr. Dunham found a distributor. However, on July 9 th , Mr. Lewis advised Mr. Dunham he was not going to pay for the distributor. Mr. Dunham testified he had rented a tow dolly on the strength of Mr. Lewis's initial indication he could take the car back. During subsequent phone conversations with Mr. Dunham Mr. Lewis indicated the claimant could not bring the car back. Mr. Lewis testified he was hesitant to take the car back. It had been to his view, a long time since he had sold the car. He had concerns about what might have been done to the car in the intervening period. On cross-examination, Mr. Dunham testified that when the car broke down, he had checked the wires but did not touch the distributor. Further Mr. Lewis indicated his decision also was as a result of seeking legal advice.

[6] On July 10 th , the car was taken to Atlantic Mazda by the claimant and the car was eventually repaired at a cost of $1,353.17. The problem was the distributor and rotor according to the invoice, submitted by the claimant and marked as Exhibit # 1 in this cause. The invoice indicated that the "distributor and rotor cap were damaged by a previous installer". Mileage on the invoice was indicated at 182,482 kilometers.

[7] The vehicle in question was owned by the defendant for four years. The vehicle had been parked for the previous winter. However, the defendant testified that he did drive the vehicle on June 1 st to run some errands, etc. then on the same date took the car to be painted. On the 12 th of June, the defendant brought the vehicle home. Mr. Lewis testified the car worked excellent for him. The defendant did not drive the vehicle from June 12 th to the date of the sale. The defendant indicates he had been laid off work and did not use this particular vehicle in this period of time.

[8] On questioning from the Court, it was determined Mr. Lewis is not in the business of selling cars. The car in question had been used by Mr. Lewis as a family vehicle.

[9] Mr. Lewis called Mr. Pellerin as a witness. Mr. Pellerin has been a qualified mechanic for 27 years. The purpose of calling Mr. Pellerin was an attempt to establish that in his experience as a mechanic when a distributor cap goes it goes. He testified it is either working or not working, noting it usually does not cause a poor running condition after you start the car. He indicated the problem would usually show up at the initial startup. On cross, he admitted the car would start if the plugs were shorted out. Mr. Pellerin's testimony as it would relate specifically to the vehicle in question is not afforded weight by this Court. His evidence was far from definitive and it is noted that he did not examine the vehicle in question.

ANALYSIS AND DECISION

[10] As noted on the evidence Mr. Lewis is not in the business of selling cars. We are dealing with the private sale of a family vehicle. Mr. Lewis was not at the relevant time in the business of selling vehicles nor is there evidence that he held himself out as a distributor within the meaning attached to same in the Consumer Product Warranty and Liability Act , R.S.N.B. Chapter C-18.1.

[11] The fact that some three years prior, Mr. Lewis apparently got water in his distributor cap and was successful in repairing same does not in any way in the circumstances of this particular case attach liability to him for the problem encountered by Mr. Dunham. Further the distributor cap and rotor may have been damaged at some previous point as noted in Exhibit I. However, there is no evidence establishing Mr. Lewis was aware or should have been aware of this. It must be noted as well that the evidence established that the vehicle worked subsequent to the problem Mr. Lewis encountered with the distributor cap and water.

[12] There is no fraud made out on the part of Mr. Lewis. The evidence did not establish the vehicle was expressly sold on an "as is" basis. The evidence does not indicate an appropriate finding that Mr. Lewis was aware of or should have been aware of the existence of the problem that occurred with the vehicle in question. The evidence does not indicate any misrepresentation, negligent, fraudulent or otherwise on the part of Mr. Lewis. The evidence does not make out any breach of any implied warranty of fitness for the purpose pursuant to the Sale of Goods Act , R.S.N.B., 1973, C/5.1.

[13] As unfortunate as it may be that a mechanical problem occurred with the vehicle in question or a mechanical problem manifested itself with respect to the vehicle in question so soon after the purchase of the vehicle this does not give rise to liability in the circumstances of this particular case. In the circumstances of this particular case the buyer had all reasonable opportunity to examine the vehicle in question.

[14] It is not unreasonable that Mr. Dunham purchasing a 1996 vehicle for $4,200.00 may incur mechanical difficulties with said vehicle. Expectations with respect to used vehicles were discussed by then Chief Justice Hughes in Sears v. Parkway Mercury Sales Limited, 10 N.B.R. (2d) 703. Chief Justice Hughes said at page 154:

. . . . .

¶ 16 In my opinion there is a substantial distinction between the implied condition of fitness in the case of the sale of a secondhand car and that which is implied in the sale of a new car. Persons who purchase used cars, especially older models with substantial mileage, must expect defects in such cars will come to light at any time...

¶ 17 In my view the car which the defendant sold the plaintiff was not essentially different in character from what the parties should have had in contemplation. Although the car was in poorer condition than either party probably knew, I do not think the defects amounted to "such a congeries of defects as to destroy the workable character of the machine" and consequently the plaintiff's claim for a declaration that there has been a fundamental breach entitling him to rescission if the contract fails.

. . . . . .

[15] Mr. Dunham at the hearing expressed the view that a purchaser would have 30 days to return a vehicle as of right. No foundation for such an assertion at law was offered. This may have been a reference flowing from the Direct Sellers Act, S.N.B. Chapter D-10 which would not be applicable in this case.

CONCLUSION

[16] The claimant has not established his claim. He has not established on a balance of probabilities the existence of circumstances that would entitle him to the relief claimed. The claimant's claim is dismissed. The defendant shall have costs in accordance with Section 51(3) of Regulation 98-84 under the Small Claims Act, Chapter F-9.1 being the filing fee in relation to this claim.

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