Medjuck & Budovitch Ltd. v. Young
(1988), 86 N.B.R. 386
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Fredericton
W.L.M. Creaghan, J.
January 7, 1988.
MEDJUCK & BUDOVITCH LTD., a duly incorporated company (plaintiff) v. DAVID YOUNG AND SHEILA YOUNG (defendants)
(F/C/210/87)
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
Young purchased from Medjucks $6,834 worth of curtains, drapes, etc., for a new home. Young returned the goods because they were unsatisfactory. Medjucks sued for the purchase price. The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action.
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Consumer Law -- Topic 1808
Sale of goods -- Breach -- Remedies of buyer -- Return of goods for major breach -- Young purchased from Medjucks $6,834 worth of curtains, drapes, etc., for a new home -- Some curtains were too long or too short and others had the width incorrect; some articles had hems that were not straight and some were "puckered" -- The New Brunswick Court of Queen's Bench, Trial Division, held that there was a major breach and that Young was justified in returning the goods -- The court referred to several circumstances which it considered relevant in determining that there was a major breach -- See paragraph 35.
Words and Phrases
Major breach -- Meaning of the words "major breach" as found in the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1.
Cases Noticed
Gauvin v. Dryden Motors (1981), 34 N.B.R.(2d) 143; 85 A.P.R. 143, refd to. [para. 21].
Statutes Noticed
Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, s. 140) [para. 19].
Authors and Works Noticed
Dore, Karl, J., The Consumer Product Warranty and Liability Act, 31 U.N.B.L.J. 161 [para. 32].
Ivankovich, Ivan F., Consumer Products in New Brunswick, 33 U.N.B.L.J. 60 [para. 22].
Ivankovich, Ivan F., 32 U.N.B.L.J. 160 [para. 33].
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Counsel
Allen M. Ruben, for the plaintiff;
R. Leslie Jackson, for the defendant.
This case was heard by W.L.M. Creaghan, J. , of the Trial Division of the New Brunswick Court of Queen's Bench at Fredericton, N.B., on November 16 and 19, 1987. The decision of W.L.M. Creaghan, J., was delivered on January 7, 1988.
[1] W.L.M. Creaghan, J.: On Saturday July 5, 1986 Sheila Young and her friend, Ann Hasson, both of Nackawic, spent about four hours in the drapery department of the plaintiff's store at Fredericton. By that date a new home being built for the defendants at Nackawic was in the final stages of construction.
[2] During this four hour period Mrs.Young finalized her plans concerning the color, style and material for window curtains, drapes and other accessories to be custom made for the residence. She was assisted by Barbara Kelly, a sales lady in the drapery department, primarily in the selection of style and material to be used. Mrs. Young had already decided on her choice of colors.
[3] Prior to July 5, Barbara Kelly had visited the site, took some measurements and had a general understanding of the wishes of her new customer. She indicated that it would require from four to six weeks to fulfill the order, a large and expensive contract for two bedrooms upstairs and most rooms downstairs. This included a daughter's bedroom and the master bedroom upstairs; the kitchen, family room, dining room, living room and Dave's den on the main floor. In addition, the order included a large bedspread, several cushions and window seats.
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[4] The bedspread was ordered from a manufacturer and the balance of the order was made at the residence of a local seamstress, Nellie Millard of Geary, employed as such by the plaintiff for about six years. The price of the contract was not discussed. I am satisfied it was not a factor in the defendants' decision of November 10, 1986 to return the merchandise.
[5] A few days after July 5, 1986 David Price, manager of the drapery department, went to Nackawic with Barbara Kelly and checked her measurements. His next visit was sometime in September or October when he installed venetian blinds and started to hang curtains.
[6] On September 20, 1986 the defendants moved into the residence. At that time none of the curtains or drapes had been delivered. It was sometime in October and gradually on a day-to-day basis that the order was completed by Nellie Millard and the curtains and drapes hung by Mr. Price.
[7] Mrs. Young expected a professional job. It is my finding that she, Mr. Price and Miss Kelly all understood that the drapes and cushions were "all for decorative purposes".
[8] During the last days of October and the first few days of November Mr. Price and others made many attempts to satisfy the persistent complaints of Mrs. Young. Miss Kelly estimated that in total she made eight trips from Fredericton to Nackawic, that she travelled approximately 1,000 kilometers including about ten trips to Geary to consult with Nellie Millard.
[9] 1 am also satisfied that Mr. Price made five or more trips to Nackawic, at
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times he took Miss Kelly or Nellie Millard.
[10] About a week prior to Monday, November 10, 1986 Mrs. Young, being dissatisfied and disappointed with the goods, instructed Miss Kelly to remove the contents from her residence. Miss Kelly advised that she had no authority to comply. Later, on Thursday or Friday, Mitchell Budovitch, an officer of the plaintiff company, visited the residence. He was accompanied by his wife and Miss Kelly. He examined the merchandise supplied by the company, acknowledged some defects and volunteered to correct any deficiencies at an early date. Mr. Budovitch and party did not examine the upstairs bedrooms.
[11] On Monday morning, November 10, Mr. Price and Nellie Millard arrived planning to continue with further alterations and to use steamatic equipment to remove wrinkles. Mrs. Young refused to permit any further alterations. She insisted Mr. Price remove the merchandise; this he refused to do as he had no authority and could not contact Mr. Budovitch who was then in New York.
[12] It should be mentioned that on the previous Friday Mrs. Young prevailed upon Sterling Dorcas, a competitor of the plaintiff, to inspect the installation of the curtains and drapes. He testified as an expert for the defense, yet it is my opinion that his qualifications are no better than those of Mr. Price.
[13] Although of no consequence, it should also be stated that at various dates Mr. Price, Mr. Dorcas and Miss Kelly had been employed in the drapery department of J.D. Creaghan Co. Ltd., a business then owned by members of my family.
[14] On Monday, November 10, 1986 before Mr. Price and the seamstress
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arrived at the residence, Mrs. Young had a friend take pictures of the drapes and curtains, see Exhibit 11, a book containing 55 colored photographs. That evening she returned all of the order with the exception of venetian blinds to the plaintiff's store at Fredericton.
[15] On or about November 30, 1986 the plaintiff mailed its account for $6,834.38 to Mrs. Young. By letter dated December 5, 1986 Mr. Budovitch mailed five invoices in the total amount of $6,834.38 to Mrs. Young. In this letter he stated in part:
"Please find enclosed all invoices for your custom made drapery, bed covering and hardware selected by you and made exactly to your specifications.
"We acknowledge that a minor problem exists with only three items, which we are most willing to correct."
[16] These invoices were prepared by Barbara Kelly and there is no dispute over the prices charged.
[17] By its notice of action and statement of claim dated April 6, 1987 the plaintiff claims $6,108.22. By this date the defendants had paid $726.16, the cost plus tax of four venetian blinds installed in the two bedrooms as detailed in the invoices. Although of no consequence, they also had paid in excess of $3,000.00 for wallpaper purchased from the plaintiff.
[18] In my opinion, the Consumer Product Warranty and Liability Act which came into effect on January 1, 1980 (hereinafter referred to as C.P.W.L.A.) applies to this sale. The order was for a "consumer product" as the personal property was all of a kind commonly used for household purposes.
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[19] Having so found that the plaintiff supplied a consumer product, the only issue to be determined by the Court is whether the defendants were justified in returning the merchandise. The goods were not satisfactory as of November 10, 1986. The Act, by Section 14(1), states that the buyer shall give the seller a reasonable opportunity to rectify the breach unless:
"14(1) (a) the buyer is unable to do so, or is unable to do so without significant inconvenience; or
(b) the breach is a major breach."
[20] I have read the cases cited by counsel as well as three articles in the U.N.B. Law Journals of 1982, 1983 and 1984 by Dean Karl J. Dore, Q.C., and Professor Ivan F. Ivankovich.
[21] The New Brunswick Act does not define "major breach". In Gauvin v. Dryden Motors (1981), 34 N.B.R.(2d) 143; 85 A.P.R. 143, a case concerned with a fraudulent misrepresentation in the sale of a used car, Meldrum, J., said:
"For the purposes of this action I treat 'major breach' as 'going to the root of the contract'."
[22] The plaintiff's action for recession [sic] succeeded. Professor Ivankovich at page 60 of his lengthy 1984 article stated:
"There can be little quarrel with the result in Gauvin."
[23] However, he disagreed with the comment of Meldrum, J., adding:
"Equating the C.P.W.L.A. concept of major breach with the common law doctrine of fundamental breach, will,
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it is submitted, have the effect of depriving the consumer in these cases of an immediate right to reject the consumer product."
[24] In his letter of December 5, 1986 Mr. Budovitch acknowledged minor problems for three items although he had not inspected the upstairs bedrooms. By that date a bill had been rendered and the merchandise returned to the plaintiff's store.
[25] Mr. Dorcas did not wish to advise Mrs. Young. He went to the residence to "appease" Mrs. Young. He stated they made an agreement "no one was to know that I was there". He reviewed many of the customer's complaints, some sheers were too long, the velvet drapes did not hang well, the hems were "quite puckered" due to thickness of the material. In his opinion the problems were "not totally irreparable", that adjustments could be done, but "it would take time", that "steaming" would definitely help remove "wrinkles" in the sheers. He also stated that this was a "big" job and that Mrs. Young was unhappy.
[26] Mrs. Hasson stated that the sheers did not fit as they should have, that hems were not straight. She was disappointed, adding "these draperies were surrounded by quality surroundings in this house". Although she did not examine the workmanship, she said, "I would not have accepted these drapes." She added that in the spring of 1987 new curtains were hung, that the defendants went "all winter without drapes".
[27] The last witness was Mrs. Christie, a Home Economics teacher, and sister of Mr. Young. She was most critical of the workmanship of the
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drapes and matching "love seats". The foam did not fill the corners, the stitching of hems was too tight, thus they puckered and were not even. In her opinion the workmanship was such that "I wouldn't accept that from a student".
[28] 1 do not propose to review in detail the lengthy evidence of Mrs. Young. She had told the sales lady, Miss Kelly, that curtains are "like the frosting on a cake". She kept a calendar of the events, although this was not produced. She was critical of the delay in the performance of the contract, of the workmanship and curtains when hung by Mr. Price. She said to him as he left, "I am very displeased"; that she never expressed satisfaction. She stated that Mr. Price had ample opportunity to make alterations, that on most windows he did so twice, adding this effort made the problems worse. Mrs. Young reviewed in detail each of the faults contained in the 55 photographs, adding that although she was satisfied with the bedspread, it was of no use to her as the curtains in the master bedroom were to be returned.
[29] Three days before trial at the request of counsel and in their presence, along with a Court Reporter, some of the curtains were viewed by the Court while hanging in the plaintiff's drapery department. There is no doubt that all the material was of first class quality. By this date the antique satin and red velvet drapes on display were without wrinkles and hanging freely on the wall. This, however, does not mean that they fit the windows of the defendants' home.
[30] Both Mr. Price and Mr. Dorcas stated that accurate measurements were most important, that if an error was made curtains would not hang or fit properly. Although not mentioned, it seems obvious that making the same to
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the exact measurements is equally as important as the measurements.
[31] The seamstress did not testify. She is the only person who could explain if she meticulously cut the material and fabricated the order to the exact measurements. Also to describe the space and facilities available in her private residence and assistance available to make up these extra large and heavy drapes.
[32] Mr. Dore performed an important role in the preparation of the N.B. Act. In the opening paragraph of his 1982 article he wrote:
"The C.P.W.L.A. opened up some new horizons when it came into effect on January 1, 1980. It made important changes in warranty law and in products liability law."
[33] As mentioned, a major breach by Section 14(1)(b) gives the buyer the right to rescind the contract. Professor Ivankovich at page 160 in his 1983 article suggested as the term "major breach" was not defined that:
"the courts are now certainly empowered to assess both the nature of the breach and its consequences determining the issue."
[34] In the instant case we have an accumulation of many breaches which could be classified individually as only minor breaches. The seller was given several opportunities to rectify the same, but without success. Some curtains were either too short or long, in others the width was not correct. Some articles were wrinkled, in others the hems were "puckered" and not straight.
[35] In my opinion, the Court in
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determining whether or not a major breach occurred should consider the price of this contract, the credible criticism of the workmanship under oath of various witnesses, the numbers of unsuccessful attempts by the seller's agents in correcting the outstanding deficiencies, and the fact that the purchasers finally ran out of patience. it is my finding that the defendants were justified in returning the merchandise with the exception of the custom made bedspread.
[36] The price of the bedspread was $298.00 plus tax, that is, $330.78. The defendants are liable for the same without interest.
[37] The plaintiff's action is dismissed with costs to the defendants. For that purpose the amount involved is fixed at $6,000.00 under scale 3, that is, $1,350.00 together with taxable disbursements less $330.78.
Action dismissed.
Editor: Eric B. Appleby
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