Mallet v. Brunswick Rent-A-Car ltée
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Bathurst
October 7, 1994
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary:
Mallet purchased from Brunswick Rent-A-Car a car whose odometer had a reading of 78,000 kilometres while the mileage was actually 175,000 kilometres. Mallet sued Brunswick Rent-A-Car for damages. The New Brunswick Court of Queen's Bench, Trial Division, allowed the action.
Sale of Goods - Topic 4052
Conditions and warranties - Warranties - What constitutes a warranty - Mallet purchased from Brunswick Rent-A-Car a car whose odometer read 78,000 kilometres - At the time of purchase, Mallet and her friend inquired about the accuracy of the mileage - The salesman stated that to his knowledge, Brunswick had bought the car brand- new and had leased it to another company - The car was in fact bought secondhand by Brunswick and the actual mileage was 175,000 kilometres - The New Brunswick Court of Queen's Bench, Trial Division, held that the salesman's statement amounted to an express warranty given by the seller, the breach of which entitled the purchaser to claim compensation - See paragraphs 1 to 14.
Sale of Goods - Topic 6503
Breach - Remedies of buyer - Damages, general - Mallet purchased from Brunswick Rent-A-Car a car whose odometer read 78,000 kilometres - The sale price was $6,500 plus tax - At the time of purchase, Mallet and her friend inquired about the reading - The salesman stated that to his knowledge, Brunswick had bought the car brand- new and had leased it to another company - The car was in fact bought secondhand by Brunswick and the actual mileage was 175,000 kilometres - Mallet sued - The New Brunswick Court of Queen's Bench, Trial Division, allowed the action, held that the sale price should have been $4,000 and ordered Brunswick to pay $2,500 in damages to Mallet - See paragraphs 15 to 18.
Counsel
Bertin Thériault, for the plaintiff;
Terrence P. Lenihan, for the defendant.
This action was heard on September 28, 1994, before Deschênes, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Bathurst.
Deschênes, J., delivered the following decision on October 7, 1994:
[1] Deschênes, J. [Translation]: On March 28, 1991, Charles Green purchased a new car from Bathurst International. He traded in a 1986 Honda Accord, for which they allowed an amount of $6,100. At the date of that transaction, the Honda's odometer showed a distance travelled of 175,000 kilometres (See exhibit 2).
[2] Five days later, that is on April 2, 1991, Bathurst International sold the Honda Accord to the defendant, Brunswick Rent-A-Car Ltd. ( Brunswick) at a price of $3,000 plus tax.
[3] One month later, on May 3, 1991, the plaintiff (Miss Mallet) bought the same car from Brunswick at a price of $6,500 plus tax. At that date, the odometer reading was 78,000 kilometres, which is what was shown on the contract (See exhibit 4). The advertisement for the sale of this car also mentioned a mileage of 78,000 kilometres.
[4] At the time of the transaction, the plaintiff and her friend asked the salesman if the mileage shown on the odometer was the actual mileage. The salesman reassured them, adding that to his knowledge, Brunswick had bought the car brand-new and had leased it to another company.
[5] In June, 1991, a police investigator called on the plaintiff and told her that he had serious doubts about the accuracy of the reading on the odometer of her vehicle. The police told her that the investigation was continuing and that she would be kept posted about the results.
[6] In November, 1991, the plaintiff learned that the investigation was completed, but that the evidence was not sufficient to bring criminal charges against anybody.
[7] The plaintiff then met Brunswick representatives and asked for compensation because she had not obtained the merchandise she thought she was buying and for which she had paid. Brunswick told her that they had never tampered with the odometer and were under no obligation to compensate her.
[8] The evidence also revealed the following:
[9] 1. When Brunswick's salesman stated that, to his knowledge, the mileage shown on the odometer reflected the actual mileage of the vehicle, he had not checked the files nor taken any step to justify his statement. On the contrary, the conversation between the salesman and the plaintiff rather led her to believe that the car was bought brand-new by Brunswick to be leased to another company and that this company had put on the 78, 000 kilometres shown on the odometer. As we have seen, this was quite far from the truth.
[10] 2. It seems that when Brunswick purchased the car from Bathurst International, no information was exchanged between them pertaining to the distance mileage shown on the 1986 Honda Accord's odometer.
[11] 3. It is agreed that a price of $6,500 for the purchase of a 1986 Honda Accord with a mileage of 78,000 kilometres was reasonable and that the car was in good condition.
[12] 4. The salesman's statement regarding the mileage of the car was obviously meant to encourage its purchase. The evidence shows that one of the main reasons why Miss Mallet purchased the car was the mileage shown on the odometer.
[13] 5. Finally, it is agreed that Brunswick dealt in the sale of used cars in the ordinary course of business, even though its main commercial activity is the leasing of cars and trucks.
[14] Considering all the circumstances surrounding this matter, the Court is of the opinion that the salesman's misstatement as to the mileage of the vehicle amounted to an express warranty given to Miss Mallet by the seller, a warranty which the latter has breached and which entitles the plaintiff to compensation for any loss suffered because of it (i.e. the breach) if this was a foreseeable consequence of the breach at the date of conclusion of the contract.
[15] In my view, when Miss Mallet went to Brunswick in December, 1991, she was entitled to claim damages from the defendant based on the difference between the value of the car when she bought it in May, 1991, and the value of the car if the mileage had been only 78,000 kilometres.
[16] The onus is on the plaintiff to prove the extent of her loss, and I must admit that in this case the evidence is scarce. Nevertheless, I must attempt to identify this loss considering the whole of the evidence.
[17] In a rather arbitrary way, but in view of the fact that Brunswick had paid $3,000 for the car some 30 days earlier, the Court finds that if the parties had known the actual mileage of the vehicle, the sale price would have been $4,000 instead of $6,500, a difference of $2,500.
[18] The plaintiff is therefore entitled to judgment against the defendant in the sum of $2,500, plus interest at the rate of 8% per annum beginning on January 1st, 1992.
[19] The plaintiff is also entitled to costs, which I fix at $750 (amount involved of $3,000, under scale 3).
Judgment for the plaintiff.
Editor: Jean Merlini/tjh
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