Mann v. Cobra Jeans
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Campbellton
(C/SC/38/95)
[1996] N.B.R.(2d) Uned. 3
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Counsel
Leonard B. Mann and Reginald Hickey, for the plaintiff;
Rosaire Santerre, for the defendant.
Young, J., delivered the following decision on April 4, 1996.
[1] Young, J. : On December 23, 1994 Leonard B. Mann purchased a pair of jeans for the sum of $39.95 from the Cobra Jeans retail store. They were purchased as a Christmas present for Mr. Reginald Hickey.
[2] Mr. Reginald Hickey received the jeans on December 25, 1994. He wore them on two occasions and after having washed them twice, noticed that approximately three inches of a seam had come undone. Both he and Mr. Mann stated that both sides of the seam were frayed and that there were long threads hanging inside the jeans themselves. Mr. Reginald Hickey thereupon returned the jeans to the store together with the receipt for same, which is marked as exhibit #1. In his presence, Mr. Rosaire Santerre annotated the receipt in the following terms: Rosaire Santerre - retourne jeans a usine pour évaluation - défaut couture.
[3] Within a week, Mr. Santerre advised Mr. Hickey that the jeans would not be replaced nor would the purchase price be refunded. On January 18, 1996, Mr. Leonard B. Mann returned to the store to obtain either a refund or another pair of jeans. This request was again refused by Mr. Santerre.
[4] The plaintiff is seeking damages on the basis that the jeans are of poor quality and should have lasted for a greater period of time. The defendant, Rosaire Santerre, denies the claim, maintaining that he sells good quality goods, that all of his merchandise is verified and any defective items are returned to the manufacturers, Ocean Canada Clothing. Furthermore, when the jeans were returned to him, although they had been previously washed, they were soiled. He maintains they could have been possibly ripped due to Mr. Hickey's negligence when wearing them and his position is that the plaintiff's claim should be denied.
[5] Having assessed the credibility of the parties and the witness, I find as a fact that the jeans, which have been introduced as exhibit #2, had a latent defect which resulted in the seam coming apart and not as a result of having been caught on something.
[6] A contract for the sale of goods in these circumstances is governed by the Consumer Product Warranty and Liability Act . The applicable sections are, firstly, section 10 (1):
"Subject to subsection (2), in every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer
(a) that the product is of such quality, in such state or condition, and as fit for the purpose or purposes for which products of that kind are normally used as it is reasonable to expect having regard to the seller's description of the product, if any, the price, when relevant, and all other relevant circumstances;"
[7] I accept that these jeans were a new product and not used.
[8] Section 12 (1) states:
"In every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer that the product and any components thereof will be durable for a reasonable period of time." (Emphasis added)
[9] Section 12 (2) states:
"In determining a reasonable period of time for the purposes of subsection (1), regard shall be had to all relevant circumstances, including the nature of the product, whether it was new or used, its use as contemplated by the seller and buyer at the time of the contract, its actual use and whether it was properly maintained."
[10] Having considered all of the evidence adduced in this case, I am of the opinion that the jeans constituted a new item, that it is implicit that they were to be worn and that in this case they were properly cared for. Consequently, I find as a fact that this particular pair of jeans was not as durable as it should have been. However, it is to be noted, due to Mr. Santerre's position, Mr. Mann kept the jeans and that they were subsequently repaired by a seamstress for $10.00.
[11] There was also a $1500 counterclaim by Mr. Santerre based on slander. His testimony was to the effect that this action was based on what Mr. Mann stated he would say in the City of Campbellton to the effect that Cobra Jeans were selling rags and that there were better quality goods at the Salvation Army store. The plaintiff agrees that he told the defendant that his jeans were rags, but states that he told the defendant he would not have been as displeased had he only paid $2.00 for them at the Salvation Army store. In any event, I am not satisfied that the defendant has proved, on a balance of probabilities, his action based on slander. The conversation was between the parties, there is no proof of losses suffered by the store and because of the plaintiff's successful action, the counterclaim is dismissed.
[12] Inasmuch as the plaintiff still has possession of the jeans, judgment will be entered for the plaintiff against the defendant in the amount of $10.00, which is the cost of repairs to the jeans, plus $35.00 filing fee.
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