McNeil v. Shaw (L.E.) Limited
(1984), 58 N.B.R.(2d) 361
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Fredericton
Dickson, J.
October 15, 1984
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
A homeowner employed a mason to construct a chimney. The mason purchased a high temperature masonry cement from a masonry supplier to cement the flue-liner tiles together. The cement was unsuitable for this purpose. The homeowner brought an action for damages against the supplier, for the cost of demolishing the chimney and replacing it, plus general damages for inconvenience, etc.
The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action. The court held that (1) there was no express or implied warranty that the cement was fit for the intended purpose, (2) there was no privity of contract between the homeowner and the supplier, and (3) the Consumer Product Warranty and Liability Act did not apply, because the cement was not a consumer product.
Consumer Law -- Topic 5
Consumer protection legislation -- Application of -- The New Brunswick Court of Queen's Bench, Trial Division, held that the Consumer Product Warranty and Liability Act did not apply to the purchase of high temperature masonry cement for use in constructing a chimney, because the cement was not a consumer product as defined in s. 1(1) of the Act -- See paragraph 17.
Contracts -- Topic 1165
Formation of contract -- Privity of contract -- What constitutes -- A homeowner employed a mason to build a chimney -- The mason purchased the materials with his own funds and was later repaid by the homeowner -- There was no evidence that the mason purchased the materials as the homeowner's agent -- The New Brunswick Court of Queen's Bench, Trial Division, held that there was no privity of contract between the homeowner and the supplier of the materials -- See paragraph 18.
Sale of Goods -- Topic 4054
Conditions and warranties -- Express warranty of fitness -- A mason purchased high temperature masonry cement to cement flue-liner tiles together, a purpose for which the cement was not suited -- The supplier did not know of the intended use and did not represent it as suitable for any particular use -- The label on the cement container stated that the cement was to be used for laying and surfacing fire brick -- The New Brunswick Court of Queen's Bench, Trial Division, held that there was no express or implied warranty that the cement was fit for the purpose intended by the mason -- See paragraphs 12 to 16.
Statutes Noticed
National Building Code [para. 9].
Consumer Product Warranty and Liability Act, S.N.B.1978, c. C-18.1, ss. 1(1), [para. 17]; 23 [para. 18].
Counsel
Ronald E. Morris, for the plaintiff;
John M. Hanson, for the defendant.
This action was heard at Fredericton, N.B., before Dickson, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following judgment on October 15, 1984.
[1] Dickson, J.: In this action the plaintiff, who resides at Oromocto, claims against the defendant company, which has its head office at Halifax, Nova Scotia, damages in respect of damage suffered by him allegedly as the result of the defendant's breach of an express or implied warranty in respect
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of a building material, namely, a high temperature masonry cement, purchased by or on behalf of the plaintiff from the defendant for use in construction of a chimney addition to the plaintiff's residence. The plaintiff relies in part on certain provisions of the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1 (herein "the Act").
[2] The defendant denies that it made any express warranty as to use for which the cement was suitable or that any warranty could be implied from the transaction. It also denies the applicability of the Act to the transaction. It further alleges that the transaction of purchase and sale was between it and one Boudreau and that there was no privity of contract between it and the plaintiff.
[3] The pertinent circumstances as disclosed by the evidence were as hereunder set out, and I so find.
[4] In August 1982 the plaintiff, who is retired from the Army and presently operates a taxi-business, engaged one Boudreau to construct a stone-faced chimney on his bungalow residence, the function of which was to accommodate an air-tight stove located on the main floor. Mr. Boudreau, who resides at Fredericton, is a qualified carpenter but has done some masonry work as a sideline. He estimates that he has constructed about a dozen chimneys, some brick, some stone, over as many years.
[5] Boudreau had a year or so earlier constructed a brick-faced chimney at the residence of a brother-in-law of the plaintiff and the latter had on that occasion assisted in the work by acting as one of the tenders for the mason. Subsequently Boudreau had constructed a stone-faced chimney for one of the plaintiff's neighbours and it
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was a chimney like the latter which the plaintiff desired. The plaintiff had himself collected the rock or stones for the chimney from a nearby river-bed and from other sources had procured other required material, including brick for facing against the structure's wall and sand for making the mortar. The arrangement was that the plaintiff was again to assist Mr. Boudreau by acting as mason's tender in handing up the rocks, flue-liner tiles, etc. as work progressed. The work involved erecting a brick facing against the existing wall, erecting in vertical fashion, as the core of the chimney, a series of hollow 8" x 12" clay flue-liner tiles, one on top of the other and each cemented to the one below, and surrounding the flue-liner on three sides with stones set in mortar.
[6] Construction of the chimney was commenced by Mr. Boudreau, with the plaintiff assisting, on August 30. On the day before construction began the plaintiff inquired of Boudreau what materials should be purchased and the latter indicated that he would himself purchase them the following day and could be re-imbursed. On the 30th Boudreau attended at the defendant's premises at Fredericton. There the defendant manufactures masonry blocks and sells them to the construction trade as well as other materials required in masonry work.
[7] Mr. Boudreau purchased, for cash, in all some $244.00 worth of material, including 84 concrete blocks (presumably for the foundation), 18 pieces of flue-liner tiles, one piece of flue-liner with a hole, 10 bags of masonry cement and one gallon can of "Hi-Temp Cement". Some of the concrete blocks and flue-liner tiles were not subsequently required for the work and were returned, with credit given by the defendant to Boudreau for the unused material. The plaintiff says that he subsequently paid to his mason "about $200.00" to cover the cost of the material purchased.
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[8] With this material, together with that on hand, construction was commenced and the chimney was completed about a week or so later. The high-temperature cement which had been purchased was a commercial product known, and clearly marked on the tin's label, as "Tartan 260 High Temperature Cement". Assuming it to have the same qualities as another brand of high-temperature cement, namely "Sairset", which he had earlier used on other chimneys, Mr. Boudreau used it as a cement between the flue-liner tiles, brushing it to a depth of about 1/8 inch on top of each tile and then placing the next higher tile on top. On completion of the work the plaintiff was told by his mason not to use the chimney for several days, to give the mortar cementing the stones around the outside an opportunity to cure.
[9] Here it may be noted that the plaintiff failed to take out a building permit, as required by the local regulations, and in consequence no inspection of the work had been carried out by the building inspector's office. Also, in using high-temperature cement as a bonding cement between the flue-liner tiles there had been an infringement of the National Building Code which was applicable to construction within the Town. The Code, under the heading "Chimney Lining", provided:
"Every clay chimney liner shall be laid in a full bed of mortar consisting of 1 part portland cement to approximately 3 parts of sand by volume."
The Code also provided that "fire-brick", viz., that type of brick used for construction of the actual fire-box, for example, a fire-place, "shall be laid with high temperature cement mortar" conforming to certain specifications. While it cannot be definitely concluded from the evidence it seems
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also probable that a requirement of the Code that a space, for expansion, between the flue-liner and surrounding masonry "be not filled with mortar where the chimney walls are less than 7 1/2 inches in thickness" was also not observed. No such space was here left. While no precise evidence was given as to the thickness of the walls it would appear from photographs in evidence that it was less than 7 1/2 inches. In any event when the chimney was subsequently dismantled it was found that the flue-liner tiles had become cracked which would appear to confirm that conclusion.
[10] The first fire was lit in the stove serviced by the chimney on September 21 and over the next fortnight the stove was used several more times. In early October it became apparent that the chimney was defective when rings of creosote stain appeared on its exterior wall. These occurred at about one-foot vertical intervals, coinciding with the location of the joints between the flue-liner tiles. Shortly later the chimney was inspected by Mr. Boudreau and by representatives of the defendant company and of the company which manufactured the high-temperature cement, to whom the plaintiff had complained. Their investigations disclosed that the cement between the flue-liner tiles had become dry and turned to powder, thus no longer providing a suitable leakproof bond between the tiles. This circumstance suggested that the chimney would have to be re-built as creosote was quite obviously leaking through the joints from the interior of the flue.
[11] The plaintiff's home is electrically-heated but he continued to use the wood-fire and chimney at intervals throughout the winter. Creosote continued to seep through and the following spring the local fire chief forbade further use of the chimney until it had been reconstructed. The plaintiff subsequently took down the chimney and re-
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placed it, using new materials, including new stones, which he had assembled. Most of the work was done by the plaintiff himself, assisted by various relatives, but Mr. Boudreau assisted in the commencement of the project. It is the cost of demolition and replacement of the original chimney which the plaintiff now seeks as damages, together with further damages for inconvenience, etc. For some reason which is not apparent Mr. Boudreau has not been joined as a co-defendant.
[12] It is apparent that Tartan 260 is not a material suitable for use as a flue-liner bonding cement and also that the difficulties with the chimney, at least initially, arose from its use for such purpose. An expert, who is a member of an engineering consultant firm called by the plaintiff as a witness, testified that he had tested the material, which has a quartz base, and found it to be water-soluble, and subject to breakdown through moisture from water in wet wood or condensation or through exposure to rain-water entering the top of a chimney, unless properly bonded and fused through exposure to extremely high heat at an early stage of its use. Such exposure could not be gained through use in a chimney itself, but only in a fire-box. Other evidence confirms that the only effective use of a high-temperature cement is with firebrick and even then the proper application is by dipping and coating the entire fire-brick in the substance.
[13] Mr. Boudreau testified that he had used the high-temperature cement Sairset as a flue-liner cement on several of the other chimneys he had constructed and had never had any complaints concerning subsequent difficulties. He says that he had adopted its use
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through casual conversations with other masons. From other evidence it does appear that some masons use high-temperature cement for that purpose, as they find it more convenient to use a prepared material, even though not one prescribed for such use, rather than trouble with the inconvenience of preparing the prescribed portland cement mix. The expert witness was at a loss to explain how Sairset might prove suitable as a flue-liner cement, if such were in fact the case, unless it were because the qualities of Sairset and of Tartan 260 were somewhat different. He had not checked the literature. He could also not account for the seepage of the creosote through the rock and mortar forming the outside wall of the chimney. He conceded that to obtain the desired fusing the only proper use of a high-temperature cement was with fire-brick and not as a bonding agent for flue-liner tile.
[14] The essential basis of the plaintiff's claim is that the employee of the defendant had misrepresented that Tartan 260 was suitable for use as a bonding cement in the construction of the flue-liner. In this regard Mr. Boudreau testified that when purchasing the materials he had asked the clerk, who was a Mrs. Nickerson, for Sairset; that he had not advised her what particular use he intended to make of it; that the clerk had stated that they did not have Sairset in stock but had "Tartan in place of it"; that he was not aware that Sairset was intended for use only with fire-brick, or of the Building Code requirements that a portland cement mix be used in flue-liners and that an expansion space be left outside the flue-liner where the rock and mortar facing was under 7 1/2 inches.
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[15] Mrs. Nickerson testified that her recollection was that Mr. Boudreau had asked only for a gallon of high-temperature cement, without mentioning Sairset by name; that most if not all masons when ordering materials asked only for "high-temperature cement" without specifying a brand and she had in fact written up the invoice (Exhibit 1) in that way; that her employer had carried Sairset in stock until about the preceding April but had since then carried only Tartan 260; that on passing to Boudreau the three small items included in the order he had remarked, in respect of the tin of high-temperature cement, that it was "different from what I've been getting", to which she had replied that "since April this is all I have in stock for high-temperature cement"; that she had at no time recommended to Boudreau or any other mason a high-temperature cement for any particular use; that she had no expertise in chimney construction but was aware that high-temperature cement was used for laying fire-brick and masonry cement for other bricks; that, in respect of a suggestion made on behalf of the plaintiff that she could only have assumed by virtue of the nature of the order (which did not include fire-brick), that the cement was required for the flue-liner, it was not unusual for masons to assemble materials for a chimney in two or three separate orders or loads, and that in this particular case the materials ordered were patently insufficient "even to build a flue".
[16] I am unable to accept on the basis of the evidence the suggestion that the mason relied in any way upon any representation made by the clerk or that she in fact made any representation that the cement sold was suitable for use in flue-liners. Even assuming that there was some vague express or implied sug-
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gestion that Tartan 260 was suitable for the same purpose as Sairset, the evidence is that the Sairset label had expressly described that product as a "High Temp Bonding Mortar, for laying and surfacing fire brick". If Tartan 260 was held out as a substitute for Sairset, it could only have been held out as satisfactory for that limited use described on the Sairset label.
[17] Nor does the evidence establish that any representation made was such as to create a warranty by the seller to the buyer under the Consumer Product Warranty and Liability Act. Moreover, it is my finding in any event that that Act has no application to the purchase made. The Act is applicable only to the sale of a "consumer product" as defined by the Act. In this regard the Act provides:
"'consumer product' means any tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes."
A cement intended for use in construction of a chimney, whether for the laying of fire-brick or flue-liner tile, is certainly not a product commonly used for either personal or family purposes. Nor could it be considered as commonly used for "household" purposes. The word "household", according to its dictionary meaning, connotes a relationship to the maintaining of a house or other domestic establishment. In no way, in my view, could a building material such as cement used for essentially the once-only purpose of construction of a chimney be considered a consumer product within the meaning of the Act.
[18] The non-applicability of the Act also provides the defendant here with a further valid defence, because in the
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absence of privity of contract between the parties at common law the plaintiff, in order to maintain an action against the defendant, would be reliant upon a. 23 of the Act which provides:
"23. Where the seller is in breach of a warranty provided by this Act, any person who is not a party to the contract but who suffers a consumer loss because of the breach may recover damages against the seller for the loss if it was reasonably foreseeable at the time of the contract as liable to result from the breach."
There is no suggestion here that Mr. Boudreau indicated to the defendant that he was purchasing as agent for or otherwise on behalf of the plaintiff.
[19] While it is not material, one may perhaps note that the chimney here was destined to failure in any event through creosote escaping through the cracks which subsequently occurred in the flue-liner tiles themselves. That condition was obviously due to the failure to leave an expansion space between the flue-liner and the outside wall as required by the Code. It may also be noted that there has been no suggestion that the Tartan 260 sold would have been unsuitable for the use for which it was intended. The evidence would in fact suggest that it may not have been as freely used by masons as a substitute for portland cement as had been suggested. In this regard the district sales manager of the defendant company testified that that summer they had sold 100-150 cans of Tartan and had received no other complaint.
[20] The plaintiff's action is dismissed, with costs in the sum of $800.00 as fees for solicitor's services, being that amount allowed under Scale 2 of the tariff for an "amount involved" of $4,000.00, together with disbursements, which latter may be taxed if not agreed
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upon.
Action dismissed.
Editor: Steven C. McMinniman
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