White v. Shea et al.
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Saint John
(1986), 74 N.B.R.(2d) 15
(No. S/C/162/85)
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
White purchased a satellite dish antenna and receiver from Quoddy Holdings Ltd., a company owned by Shea. The apparatus did not function properly and White brought an action against Shea and the company seeking rescission of his contract and the return of the purchase price. The New Brunswick Court of Queen's Bench, Trial Division, allowed the action in part. The court held that White did not have a right to rescission and the return of the purchase price, because he did not give Shea the opportunity to remedy the defects. However, there was some deficiency and the court assessed the damages at $250.00.
Sale of Goods - Topic 6101
Performance of contract - Installation - General - White purchased a satellite dish antenna from Shea - The installation was defective and the dish did not function properly - The New Brunswick Court of Queen's Bench, Trial Division, stated that it was Shea's responsibility, as the installer, to see that the satellite dish was left in a manner that was adequate for weather protection - See paragraph 19.
Sale of Goods - Topic 6512
Breach - Remedies of buyer - Rescission - Conditions precedent - White purchased a satellite dish antenna from Shea - The installation was defective and the dish did not function properly - Shea went to White's premises, but White told him that he wanted his money back and ordered Shea off the property - White sued Shea, seeking rescission of the contract and the return of the purchase price - The New Brunswick Court of Queen's Bench, Trial Division, held that White deprived himself of any right to rescission of the sale and the return of the purchase price, because Shea was not given an opportunity to examine the installation or remedy defects - See paragraphs 33 to 36.
Statutes Noticed
Consumer Product Warranty and Liability Act, R.S.N.B. 1973, c. C-18.1, sect. 14(1) [para. 31]; sect. 15 [para. 37].
Counsel
David R. Ames, for the plaintiff;
Dana W. McConkey, for the defendants.
This case was heard on May 28, 1986, before Jones, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on September 12, 1986.
[1] Jones, J.: In late 1984, the plaintiff purchased a ten foot satellite dish antenna and receiver from the defendant company in order to receive on his television set channels that are available from satellite systems. The plaintiff claims that the apparatus which was installed did not work as had been warranted to him and seeks rescission of the contract and return of his purchase money. He also claims damages with respect to the manner in which the installation was made in his home. The defendants counterclaim for the value of a tracker left with the plaintiff for his use until the tracker which belonged to the original installation was received. The tracker which was left has a retail value of $250.00 over that of one normally used with this installation.
[2] The plaintiff had recently moved to his home in rural Charlotte County and was in an area where he was apparently unable to obtain television signals and also beyond an area serviced by cable. He went to the defendants' place of business which is known as Radio Shack in St. Stephen to inquire with respect to the purchase of an antenna dish. There were discussions between the plaintiff and the defendant Mr. Shea who is the principal of the defendant company which in fact operates Radio Shack. Following this discussion on November 5, 1984, the parties entered into an agreement for the plaintiff to purchase a ten-foot dish and package to be installed by the defendants. The purchase price was negotiated at $2,500.00 U.S. which appears to represent a reduction in the vicinity of $300.00 Canadian from the suggested retail price. The plaintiff in fact paid $1,000.00 U.S. that day and received a receipt dated November 5, 1984.
[3] In due course the package arrived. Mr. Shea went to the plaintiff's home and proceeded with the installation. The dish was set up on the plaintiff's property and wires run from the dish into the plaintiff's house and connected to his television set. The defendant Shea adjusted the television set and dish and testified that when he left the plaintiff's premises the plaintiff was obtaining satisfactory reception.
[4] At the time of installation one of the parts of the set which is referred to as a tracker had not arrived. The defendant therefore left another tracker referred to as a Janeil 250 which he was going to let the plaintiff use until the original tracker was available. The defendant testified that the tracker which was left had a retail value of $250.00 more than the tracker which had been contracted for in the original installation. The plaintiff expressed an interest in the new tracker which apparently was capable of being programmed and used automatically as opposed to the manual use of the other tracker. There was discussion concerning price and the plaintiff offered $100.00 U.S. to have the better tracker but this was refused by the defendant.
[5] The plaintiff testified that he had difficulty with the set and in fact testified that at most he could get eighteen to twenty channels and sometimes considerably less. He became dissatisfied with this reception. He testified that on several occasions he contacted the defendants' store and in fact testified that on one or two occasions he dropped in but the defendant was always out.
[6] The defendant denies having ever heard of any complaint from the plaintiff and Mrs. Porter who was acting as bookkeeper at the time and usually took the telephone calls in the absence of the defendant testified that she has no recollection of any complaints from the plaintiff or of ever hearing from him.
[7] In due course, the original tracker arrived and the defendant sent an employee out to exchange the trackers. The plaintiff refused to allow this exchange to take place and stated that he wanted to see Mr. Shea. As a result of this Mr. Shea attended at the plaintiff's premises. Mr. White testified that he told the defendant that he did not want the antenna, that it didn't work right and that the defendant could not exchange the trackers stating "you take the whole thing out or you'll take nothing" and further "I don't want this thing, all I want is my money back."
[8] There was little communication between the parties from this point on. Tempers rose and both parties agree that the plaintiff had referred to the fact that the defendant would only exchange the trackers "over my dead body". In fact the plaintiff ordered the defendant off his premises. Subsequent to this the plaintiff sought legal advice and his lawyer wrote to the defendant which communication was dated December 19, 1984.
[9] In June of 1985, this installation was inspected by Mr. Clayton Weatherby. Mr. Weatherby is the principal of Terra Cable Ltd. of St. Stephen. This is a community cable operation which Mr. Weatherby testified has approximately 1800 customers. For the purpose of operating this cable system Mr. Weatherby stated that his company has some five satellite dishes in operation. These are obviously larger and more sophisticated than the plaintiff's. Mr. Weatherby testified that he is familiar with satellite dish systems and does his own maintenance and repair. He would be familiar with the literature on the subject.
[10] He further testified that he has installed at least a dozen private satellite dishes. The impression I have is that Mr. Weatherby probably can purchase satellite dishes direct from wholesalers or manufacturers and he mentions that he does set them up on occasion for friends or as he refers to "a friend of a friend".
[11] As indicated, Mr. Weatherby examined the installation in June of 1985. He also took photographs at that time, a series of which are in evidence.
[12] He was critical of the installation noting that there was no weather guard over the feed horn and was critical of the taping or weather protection about various connectors. It was his testimony that failure to protect from the weather as well as loose connections would give poor results.
[13] He found that three of the eight reinforcing brackets at the rear of the dish had been installed without spacers which he found resulted in cracking of the structural area of the dish. This would make the dish susceptible to wind and also distortion with the resultant effect on the picture. He found misplacement in the actuator arm so that the drain hole was pointing up instead of down and allowing the weather into it and that there were nuts which were not tightened and some securing bolts which were not in place.
[14] Mr. Weatherby was also critical of the installation of the lead wire into the house and that some coils of the lead wire were left lying in the basement of the house. He also stated that two of the components of the unit the receiver and the "down converter" were not matched.
[15] Mr. Weatherby tested the channels and was able to tune in on some sixty- nine channels. About ten of these were scrambled and seventeen were too weak to watch a picture on. There were four which were data or wire service feeds and of the remaining thirty-eight he found that there were only ten which had a "grade A picture".
[16] Mr. Weatherby felt that the principal cause of poor reception was the cracking of the antenna dish which he related to the lack of spacers in the securing of the reinforcing brackets where the various portions or "petals" of the dish are placed together and also the misalignment between the receiver and the down converter.
[17] Mr. Weatherby felt that because of the deterioration from weather and also the splitting in the dish that there was little value to the unit. He did not specifically make an assessment as to the cost of upgrading the unit.
[18] Mr. Shea took exception to Mr. Weatherby's testimony with respect to the necessity of a weather guard on the feed horn or motor but insofar as other taping about the connections on the unit was concerned he took the position that as part of the negotiation of the purchase price it was agreed that the plaintiff would be responsible for securing or weatherguarding around the dish and various apparatus and connections.
[19] The plaintiff denies this saying that he had no knowledge of this and it was simply anticipated that he would have the dish set up and that he would then be able to view his television. I do not accept Mr. Shea's evidence that he would leave it to a customer to protect the connections around the satellite dish. Mr. Shea was making the installation and in my opinion it was his responsibility to see that it was left in a manner that was adequate for weather protection.
[20] It is clear that while Mr. Shea in making his installation connected the satellite dish by wire to the television unit and saw that a picture was obtained that it remained for the plaintiff to secure the cable either by burying it or otherwise. The plaintiff in fact hired a young man to dig a shallow trench for this purpose. There was excess cable which was lying loose in the basement and I accept that this was a matter which could have been remedied by the plaintiff. In any event there is no evidence before me that the excess length of cable in the basement which while looking unattractive had any effect upon the picture reception.
[21] There is some evidence that the plaintiff in drilling a hole in the floor for the cable to come up to the television caused damage to a rug. There is no evidence before me as to quantum of this damage although an amount is claimed. In view of the lack of evidence as to cost of repair I do not need to deal with that.
[22] The evidence is that as far as entertainment channels are concerned there were only available about 90 of which approximately 70-75 were twenty-four hour channels, the others being what were termed occasional. In a portion of discovery entered by the plaintiff being discovery of Mr. Shea the following question and answer were given:
"Q. So would you be warning to him that he would be getting 80 channels at least and probably better quality than what you are seeing here now?
A. Yes."
[23] I am satisfied on the evidence that something in the nature of 70-80 channels was indicated to the plaintiff. I am satisfied on the evidence of Mr. Weatherby that while there could be contact with some 69 channels that only 10 of them were giving a grade A picture by June of 1985.
[24] Mr. Weatherby related the principal problem to the mismatch between the receiver and the down converter as well as the cracking as a result of the lack of some spacers.
[25] The defendant takes the position as I have indicated that the weather-proofing was the responsibility of the plaintiff. I do not accept that. The defendant agrees that spacers should have been used and he assumes that they were used.
[26] Mr. Shea feels that the mismatch between the receiver and the down converter would be compensated for by an automatic device within the equipment which would as he says fine tune the channels. Mr. Weatherby on the other hand states that the mismatch was beyond a level of fine tuning.
[27] Mr. Shea testified that it was his position with his customers that if they could not receive a satisfactory picture that he would have removed the set and returned the purchase price. In the present case because of the attitude taken by the plaintiff Mr. Shea did not have an opportunity to examine the installation in December of 1984, and if possible make necessary adjustments.
[28] Mr. Shea further stated that the fact that Mr. Weatherby was able to obtain signals for 69 channels indicated that the satellite dish was in place but that quite possibly it had varied a bit in positioning and that an adjustment might well have rectified the situation. This was a matter which he was not able to check under the circumstances.
[29] Mr. Weatherby examined the type of installation and examined the results that he could see in the reception but went no further. He provided no estimate as to cost of repair.
[30] The plaintiff brings this action seeking in effect rescission of his contract and return of his purchase price.
[31] Under the Consumer Product Warranty and Liability Act, R.S.N.B. 1973, c. C-18.1 a buyer in the case of a breach of warranty may reject a product where the seller has not rectified any breach as required by s. 14 of the Act. Section 14(1) of the Act provides that the seller shall, subject to certain exceptions, have an opportunity to remedy a breach of warranty.
[32] In the present case I am satisfied that there was by June of 1985, a deficiency in television reception as described by Mr. Weatherby. It appears from the evidence that this problem arose from insufficient weatherproofing of connections at the time of the installation, the lack of spacers and a mismatch between the receiver and the down converter. I am further satisfied that the problem both with respect to the weatherproofing of the open connections as well as the problem arising out of lack of spacers is one that would increase with time and weathering and undoubtedly by June of 1985, not having been attended to was much greater than it was in December of 1984.
[33] The problem here is that the plaintiff gave the defendants no opportunity to examine the installation nor to remedy any defects. I am not satisfied that the plaintiff made a direct contact with the defendants' place of business before the defendants' employee came out in December 1984. Not a great deal of time had expired in this matter. The original deposit was made on November 5, 1984. There was a period of time before the satellite dish arrived and the installation was made. There was a further period of time until the current tracker was received and sent out for exchange. Then there was a visit to the plaintiff's residence by Mr. Shea. It was a few days after this before the plaintiff had his lawyer write to the defendants. This letter is dated December 19, 1984, or approximately six weeks from the original deposit and one can surmise two or three weeks after the original installation.
[34] In my opinion the plaintiff deprived himself of any right to rescission of this sale and return of his purchase price by his behaviour at that time in ordering the defendant Shea from his property and giving him a "take it or leave it" proposition in the manner described in the testimony.
[35] Had Mr. Shea been able to make an inspection at that time problems with respect to the matters which I have detailed could quite possibly have been remedied with minor expense. We shall never have direct evidence on this.
[36] I am satisfied that there were some deficiencies in the original installation. I do not consider that they were sufficiently major to be a basis for rescission of the sale particularly in light of the plaintiff's behaviour.
[37] I have no evidence before me upon which to assess the actual loss sustained by the plaintiff. Section 15 of the Consumer Product Warranty and Liability Act provides that a buyer may recover damages for any loss which he sustains as a result of a breach. Certainly the cost to repair these matters would have been in my opinion an adequate measure of damages. Mr. Weatherby did not testify with respect to overall costs other than suggesting that the whole system had no value. I do not accept that.
[38] In June of this year, I called back counsel pointing out to them the difficulty that I had with the insufficiency of evidence on the point of actual cost of repair. I invited submissions. I have received none.
[39] I have a choice of allowing no item for inadequate installation or setting an arbitrary amount which is not based on any evidence. I am satisfied that there was some deficiency.
[40] I would not allow the plaintiff any damages with respect to repair to the carpet because no evidence was led on its cost of repair and I would not allow any damages with respect to the coiling of wires in the basement as I do not consider they caused any damage to the plaintiff.
[41] The plaintiff on the other hand has kept a unit the property of the defendants with an admitted value of $250.00 more than that for which he was entitled. I shall simply allow the plaintiff the sum of $250.00 as an offset against this item which is an arbitrary amount with respect to the cost of repair or upgrading of the installation of the satellite dish and connections which might have been done in December of 1984. I admittedly have no evidence as to amount but under the circumstances feel that the plaintiff is entitled to something and use that figure which will offset a counter-claim to which the defendants would be entitled.
[42] In view of all the circumstances each party will bear their own costs.
Action allowed in part.
Editor: Denise A. LeBlanc/klf