Savoie v. Lavoie
(1991), 115 N.B.R. (2d) 38
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Newcastle
McLellan, J.
February 28, 1991
Walter Savoie (plaintiff) v. Frank Lavoie (defendant)
(N/SC/447/90)
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
Lavoie purchased a horse from Savoie. Lavoie claimed that the horse was dangerous as well as useless. When Savoie refused to take the horse back, Lavoie sold it for meat. Savoie sued Lavoie for the balance owing under the contract. Lavoie pleaded breach of warranty and counterclaimed. The New Brunswick Court of Queen's Bench, Trial Division, gave judgment for Savoie.
Consumer Law -- Topic 1602
Sale of goods -- General -- Consumer product -- What constitutes -- A purchaser claimed breach of warranty following the sale of a horse -- The Consumer Product Warranty and Liability Act, S.N.B.1978, c. C-18.1, defined a consumer product as an item of "tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes" -- The New Brunswick Court of Queen's Bench, Trial Division, held that the provisions of the Act were applicable because the horse came within the ambit of the meaning of "consumer product" -- See paragraphs 18 to 19.
Sale of goods -- Statutory warranties -- General -- Rejection of goods -- Time for -- Savoie sold Lavoie a horse in July for $2,000 -- Lavoie submitted that the horse was dangerous as well as useless because it could not be driven from behind -- Lavoie attempted to resell the horse for $1, 800 in August -- Later, Savoie refused to take the horse back -- Lavoie sold it for meat for $500 -- Savoie sued Lavoie when Lavoie refused to pay the $800 balance -- Lavoie pleaded a breach of warranty and counterclaimed -- The New Brunswick Court of Queen's Bench, Trial Division, gave judgment for Savoie on the ground that Lavoie failed to reject the horse within the period specified in s. 16 of the Consumer Product Warranty and Liability Act -- See paragraphs 21 to 26.
Consumer Law -- Topic 1805
Sale of goods -- Breach -- Remedies of buyer -- Rescission -- [See Consumer Law - Topic 1688].
Cases Noticed
Gandy v. Robinson (1990), 108 N.B.R.(2d) 436; 269 A.P.R. 436, folld. [para. 19].
Greene v. D.R. Sutherland (1982), 40 N.B.R.(2d) 27; 105 A.P.R. 27, folld. [para. 19].
Gallant v. Lounsbury Co. (1916), 44 N.B.R.(2d) 225, refd to. [para. 23].
Statutes Noticed
Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, ss. 16(1), 16(3) [para. 20].
Counsel
Walter Savoie, the plaintiff;
Frank Lavoie, the defendant.
This matter was heard on February 22, 1991, by McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, in Newcastle, who delivered the following judgment on February 28, 1991.
[1] McLellan, J. : A breach of warranty on the sale of a horse is alleged as a defence and counterclaim in this small claim. The plaintiff Walter Savoie is a horse- trader from Pointe-Verte, Gloucester County. He has been in the business for 40 years and maintains an inventory of about 30 horses. The defendant Frank Lavoie of Red Bank, Northumberland County enjoys participating in horse hauling competitions and has bought and traded horses for that purpose.
[2] The parties did business together in 1989. The trader took a mare from the buyer on the basis that the buyer would have a credit of $1,200 with the trader on a future deal. Then, as evidenced by a promissory note dated May 23, 1989, the trader sold the buyer a black French Canadian horse. The sale price was $2,000. After taking into account the $1,200 credit, the balance due and secured by the note was $800.
[3] After using the French Canadian horse the buyer became dissatisfied with it. He says "it would only go backwards" and "his head was on the wrong end". To keep the buyer happy the trader took the French Canadian horse back in early June.
[4] Then about 50 days later the trader sold the buyer a bay Belgian horse. The transaction was documented and secured by a promissory note for $800, without interest, from the buyer to the seller dated July 26, 1989.
[5] The trader (the holder of the $800 note) brings this action against the buyer (the maker of the note) to collect the $800 due under that note. The trader also claims for feed and care of the black French Canadian horse for 50 days prior to the date of the note and for a halter. But the note was made after the provision of the 50 days of feed and care. Also the evidence does not convince me that the halter was taken after the date of the note.
[6] That note for $800, exhibit P-2, is by far the best evidence of the amount of the account between the parties on July 26,1989. The $1,200 credit, the previous note for $800 and any undocumented credits, debits or claims between the parties must I think be deemed to have been taken into account in setting the $800 amount of the note dated July 26, 1989. Accordingly the trader is now barred from claiming for care, feed and the halter. The trader's real claim is thus only on the note for $800.
[7] By a dispute note the buyer denies liability and counterclaims for $1,500. The $1,500 is the sum of the original $1,200 credit and $300 he says he spent for feeding the Belgian after "I called him to come and get him". On the witness stand the buyer says the trader owes him $700 calculated as follows: cost of horse $2,000, less salvage recovery on sale for horsemeat $500, less note for $800 equals $700.
[8] In effect the trader says the bay Belgian was worth $2,000 as a horse and the buyer says it was only worth $500 as meat. The buyer does not complain about the Belgian's state of health or age. The focus of his complaints is that the horse had a bad temperament, kicked, bit and the buyer "could not get behind him" and "could not do anything with him". Despite trying him every day for one or two weeks after July 26 and later in the fall, the buyer says the horse was useless.
[9] The buyer says that in August he asked the trader to come and take the horse back and the trader refused to do so. Then for about a month the buyer let Paul Walsh use the horse in the woods. If Mr. Walsh had been content with the horse, their deal was that Mr. Walsh could buy the horse for $1,800. Mr. Walsh did not. Thus in August 1989 the buyer admits he tried to sell the horse for $1,800. That detail contradicts the buyer's theory that the horse was only worth $500 as meat.
[10] Another man was allowed to use the horse at a hauling competition "to try him". After getting the horse back in the late fall of 1989 the buyer "tried him again every day for four or five days" without any more success. The buyer says that late in 1989 the trader refused to come and take the horse back. As the buyer considered the horse dangerous and useless, without notice to the trader, the buyer then sold the horse as meat for $500.
[11] The trader says there was nothing wrong with the temperament of the Belgian and that he was not dangerous before Mr. Walsh got him. Doug Matchett was called as a witness by the trader and says that he used the horse to yard wood while Paul Walsh had him in about September 1989. Mr. Matchett says the horse was fine as long as he was led by the head, rather than driven from behind.
[12] The buyer put in evidence a video-tape of the Belgian and other horses participating in a hauling competition at North Tetagouche in June, 1989, about a month before the sale. The buyer did not know until after he bought the Belgian that it was shown on that tape. In that tape, at hauls of different loads, that Belgian looked particularly skittish. So did some of the other horses at different times, particularly as the load was increased. When the load was unhooked at one stage the teamster with the Belgian lost control and the Belgian started galloping the team out of the ring. Nevertheless that team managed to successfully haul a drag of 6000 pounds later that day. Of course at a hauling competition, unlike yarding wood, the driver must be behind the team.
[13] The trader and his witness Mr. Matchett emphasize the importance of the skill of the teamster and suggest that many of the problems the buyer had with the horse may have been because of the buyer's lack of skill with horses. The trader also says, and the buyer and Mr. Matchett confirm, that horses participating in horse hauls are often given stimulants to improve their performance.
[14] The evidence shows that stimulants such as five pounds of tea, a few pounds of sugar (brown, although some prefer white) and alcohol (the buyer says a horse "will handle a pint of Beefeater's gin or a quart of wine, no trouble"), as well as other additives or injections are commonly used on horses to achieve peak performance at a horse hauling competition. The trader says it can take a horse a week or two to get such stimulants out of his system and the buyer says the effect is gone the next day.
[15] As noted earlier, the buyer worked with the horse every day for a week or two after buying him. What that means is that the buyer worked at practising the horse for participation in competitive horse hauling. I infer that that work would have been unappreciated by the horse. The buyer says he did not give the horse any stimulants because he was "crazy already". The trader implies that if the horse was crazy, what made him so was the handling or stimulants provided by the buyer.
[16] Against this background the trader claims $800 due on the horse and the buyer denies liability and asks for $700 of his original credit prior to the purchase. The court must resolve this dispute by applying the present law on horse trading to the facts of this dispute.
[17] I intentionally use the expression "present law on horse trading". This case arising out of a transaction in 1989 has to be decided by modern law, not according to the old common law rules.
[18] In our modern law a horse is an item of "tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes". That is the definition of a "consumer product" in the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1.
[19] The court has to treat the sale of this consumer product, a bay Belgian Horse, like any other agreement for the purchase and sale of any other consumer product such as a pet, a home entertainment system or a light tractor. For example in Gandy v. Robinson (1990), 108 N.B.R.(2d) 436; 269 A.P.R. 436, a dog was ruled to be a consumer product and in Greene v. D.R. Sutherland (1982), 40 N.B.R.(2d) 27; 105 A.P.R. 27, a 40 horsepower farm tractor was ruled to be a consumer product.
[20] If there was a breach of warranty by the trader, the buyer was aware of it after trying the horse for one or two weeks. The Act provides in s. 16:
"16(1) Where the seller is in breach of a warranty ... the buyer may reject the product if he does so within a reasonable time after he discovers the breach and he discovers the breach not later than sixty days after delivery of the product.
. . . . .
"16(3) The buyer's rejection is not effective until the seller knows or ought to know that the buyer does not accept the product."
[21] In this case I am not convinced that the buyer rejected the product within a reasonable time after he discovered what he saw as defects in the horse. He did not return the horse and he did not even write a letter recording his rejection and demanding that the trader pick up the horse. Instead the buyer tried to sell the horse to a third party for a similar price and let that party use the horse for about a month. Then someone else was permitted to use the horse in a competitive horse haul.
[22] As well I am convinced by the evidence of the trader and of Mr. Francois Roy that during the fall of 1989 when the trader was calling on the buyer to pay the note, the buyer was promising that he would pay it.
[23] In a dispute over an entertainment system or a vehicle, a consumer has to assert his rights to reject a product within a reasonable time. So did the buyer of the horse. But he did not. In August he could have taken the horse back to the trader's place of business and left it there. Then he could have notified the trader and demanded his money back. That, by the way, is what was done with an unsuitable horse in Gallant v. Lounsbury Co. (1916), 44 N.B.R.(2d) 225, a case from Caraquet decided under the old law when these cases were decided by a jury.
[24] Instead the buyer tried to sell the horse, had the horse work and promised to pay the balance owing on the horse for some months. Then, without notice to the trader, he sold the horse for meat.
[25] Accordingly because of the buyer's conduct after he tried out the horse and his failure to promptly return the horse, I am convinced that the buyer should pay the $800 note he gave to the trader.
[26] There will be judgment for the plaintiff Walter Savoie against the defendant Frank Lavoie for $800 and the filing fee of $35.
Order accordingly.
Editor: Reginald W. Curtis
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