Watt v. Maillet et al.
(1995), 163 N.B.R. (2d) 387; 419 A.P.R. 387
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Fredericton
McIntyre, J.
May 5, 1995
Terrance B. Watt (plaintiff) v. Serge Maillet and St. Antoine Auto Ltd., a body corporate (defendants)
(F/C/71/94)
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
Watt sued Maillet and St. Antoine Auto for, inter alia, breach of warranty under the Consumer Product Warranty and Liability Act. He alleged that the used farm tractor he purchased from them did not work. The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action.
Application of consumer protection legislation -- Watt sued Maillet and St. Antoine Auto for, inter alia, breach of warranty under the Consumer Product Warranty and Liability Act -- He alleged that the used farm tractor he purchased from them did not work -- He further stated that he was told by an expert in farm equipment that the tractor was "worn out" -- The New Brunswick Court of Queen's Bench, Trial Division, held that the Act did not apply because it was Maillet (not St. Antoine Ltd.) who owned and sold the tractor, and he was not a distributor of farm tractors within the definition of the Act -- The action against St. Antoine Ltd. was dismissed.
Consumer Law -- Topic 1603
Sale of goods -- Seller or merchant -- What constitutes -- [See Consumer Law - Topic 5].
Cases Noticed
Derry v. Peek (1889), 14 App. Cas. 337 (H.L.), refd to. [para. 10].
Statutes Noticed
Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, generally [para. 1].
Counsel
Gerald A. Grant, for the plaintiff;
J. Gilles Lemieux, for the defendants.
This case was heard on March 8, 1995, at Fredericton, New Brunswick, before McIntyre, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on May 5, 1995.
[1] McIntyre, J.: This action arose out of the sale of a used farm tractor for $4,750 by the defendants to the plaintiff. The plaintiff pleads a breach of a warranty under the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1. In the alternative he pleads a minor breach of either an express or an implied warranty, fraudulent and/or negligent misrepresentation or, in the further alternative, breach of the terms of the contract. He is asking for rescission of the contract and, in the alternative, damages for breach of the terms of the contract.
[2] The plaintiff testified that he had just purchased a farm and he was looking for a small tractor with a bucket and a hitch. He read in the Auto Truck Seller that a tractor was for sale in St. Antoine, N.B. The advertisement read as follows:
"165 Massey Ferguson. Diesel, 3 pt. hitch, M.F. Ind. loader, good rubber, motor runs like new, snow bucket, get ready for winter, $5,000. Phone St. Antoine Auto Ltd. 506-525-2772. 15 miles north of Moncton, N.B."
[3] The plaintiff drove to St. Antoine on September 11, 1993 to view the tractor. He met with the defendant, Serge Maillet, who informed the plaintiff he had the tractor for approximately a year. He used it for landscaping after he built his house and for snow removal around his home and business lot. The plaintiff says he told Maillet he needed a tractor to move manure and to do some "hog bogging". According to the plaintiff, Maillet told him the tractor was in "good working condition".
[4] When the plaintiff met with Maillet and inspected the tractor on September 11th, the plaintiff started the motor and drove the tractor a short distance. He operated both the front bucket and the three point hitch and both worked on that day.
[5] There was, however, a problem with the steering and Maillet agreed to get it fixed at the plaintiff's expense. This was done. The plaintiff says he made a cursory inspection of the machine and noticed a broken weld which Maillet also agreed to fix. The plaintiff did not notice any oil leaks and Maillet made no mention to him of any major problem with oil leaks whether from the motor or other areas. The same evening the plaintiff called Maillet and told him he had decided to buy the tractor. A price was agreed upon and on September 17th Maillet delivered the tractor. The plaintiff was absent when the tractor was delivered. Maillet left a short handwritten note which purports to be a bill of sale with the plaintiff's wife. It reads as follows:
"17/09/93
"Sold to Terry Watt - 165 Massey Ferguson 'as is where is' for the sum of $4,750."
In his evidence the plaintiff denied that the condition "as is where is" was ever discussed. He maintained Maillet told him that the tractor was in "good working condition".
[6] The plaintiff says he was never able to use the tractor. It is unclear in the evidence what works the plaintiff tried to perform with the machine but he said the motor was leaking oil so badly, it took two gallons of oil in an hour and a half. The front bucket would not raise and the hydraulic hitch did not work. On October the 7th the plaintiff's solicitor wrote to the defendants demanding the return of the purchase price.
[7] On November 1st, 1993 Ralph Nason of Saunders and Nason Ltd., an expert in farm equipment, inspected the tractor. Mr. Nason testified on behalf of the plaintiff and stated that in his opinion the tractor is "worn out". He testified that it would cost more to repair than the tractor is worth. He added that the tractor is not in any kind of condition to do much work. In particular Mr. Nason found numerous problems with the steering mechanism. He also found that the engine had many oil leaks and that when the engine is running it is putting pressure into the cooling system causing the cooling to be forced out of the radiator. There was no evidence as to how serious this particular problem is and how it may be rectified. The third problem discovered by Mr. Nason was with the hydraulics. He states in his report:
"The front end loader will not lift and the bucket will not move. The drive coupling for the hydraulic pump which operates the front end loader had come unhooked from the pulley on the front of the engine."
[8] In his defence Maillet testified that both the plaintiff and his father, a retired mechanic, had an opportunity to inspect and drive the tractor before buying it. The plaintiff was aware of the problems with the steering mechanism. Maillet agrees that there were a few minor oil leaks around the gaskets but the engine was certainly not leaking oil as alleged by the plaintiff. He points out that when the plaintiff operated the bucket and the three point hitch on September 11th both worked perfectly. Maillet maintains that the present condition of the tractor is due to improper operation by the plaintiff from September 17th until October 7th.
[9] Dealing firstly with the Consumer Product Warranty and Liability Act, it has, in my view, no application in the present case. Maillet testified that the tractor belonged to him personally, not St. Antoine Auto Ltd. He used it for personal purpose. The action against the corporate defendant is therefore dismissed. It is plain in the evidence that Serge Maillet is not a distributor of farm tractors according to the definition in the statute. The Act does not apply.
[10] The plaintiff also pleads fraudulent and/or negligent misrepresentation. At common law fraudulent misrepresentation is defined as "the making of a statement without belief in its truth". The plaintiff alleges that Maillet's comment that the tractor was in good running order was a fraudulent misrepresentation intended to induce the plaintiff to buy the tractor. Maillet has denied making such a statement. On the evidence I am unable to conclude that a false representation was made by Maillet, "knowingly or without belief in its truth or recklessly, careless whether it be true or false". Derry v. Peek (1889), 14 App. Cas. 337 (H.L.).
[11] The plaintiff relies on the same alleged statement to argue negligent misrepresentation. Again he states that Maillet's comment to the effect that the tractor was in good working order was meant to induce him to buy and he states that he did rely on the statement to buy the tractor. The plaintiff also refers to the same statement in pleading that "statements made by the vendors amounted to a promise which became a term and a condition of the contract". It is alleged the plaintiff relied on the promise and suffered damages.
[12] It is questionable whether Maillet made the statement at all. He denies making it. In any event the evidence discloses that the plaintiff operated the tractor before buying it and it was in working order with the exception of the steering mechanism and a broken weld. The motor was running and there was no indication of any major oil leaks. The front end loader and bucket and the hydraulic hitch worked fine. Was the tractor in good working order? It certainly appeared to be on September 11th, 1993. In my view the defendant is not liable in tort for negligent misrepresentation nor is there sufficient proof, on a balance, that any statement made by Maillet amounted to a promise which became a term and a condition of the contract.
[13] The evidence discloses that the tractor is between 25 and 30 years old. Maillet informed the plaintiff that he had only used it for landscaping around his house and for snow removal. Although the advertisement states that "the motor runs like new" the evidence indicates that it did leak oil a little around the gaskets. Even the plaintiff's expert, Mr. Nason, admitted that if the motor leaked oil, as contended by the plaintiff, it should have been noticeable on September 11th when the plaintiff attended at the defendant's place to inspect it.
[14] On the whole of the evidence I am satisfied that the plaintiff obtained essentially what he bargained for, i.e. a very old secondhand tractor in good running order at the time of the sale. The fact that the motor was loosing so much oil and that neither the front end loader and hitch did not work when Mr. Nason inspected the machine on November 1st, when both worked well in September leads me to give some credence to the defendant's contention that the plaintiff caused the damage himself by improper operation.
[15] The plaintiff's claim is dismissed with costs which I assess at $1,000 under scale 2 of rule 59 together with reasonable disbursements.
Action dismissed.
Editor: Kelli A. Simmonds