J. 2004 SKQB 228 Q.B. A.D. 2001 No. 124 J.C. M.J. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF MOOSE JAW BETWEEN: COWAN PROPERTIES and FORTUNE FARMS INC. carrying on business under the firm name and style of GLENROSE FARMS and APOLLO DISTRIBUTING CORPORATION and MEYER MFG. CORP. DEFENDANTS L.O. Phillips for the plaintiff C.R. Werry for Apollo Distributing Corporation No one else appearing. JUDGMENT KOVACH J. May 25, 2004 FACTS [1] The plaintiff, Glenrose Farms (“Glenrose”), purchased a new Meyer Manure Spreader, Model 5570 (the “Spreader’), from the defendant, Apollo Distributing Corporation (“Apollo”), on December 1, 1999. Purchase price for the Spreader was $37,000.00, the balance of which was paid in full, upon delivery. Delivery was made on or about April 1, 2000. The defendant, Meyer Mfg. Corp. (“Meyer”) manufactured the Spreader. They did not defend the action and were noted for default of defence on August 31, 2001. It was agreed that the present proceeding would determine issues between the plaintiff and the defendant Apollo only. [2] Prior to purchasing the Spreader, Mr. Calvin Cowan, president of Cowan Properties Inc., had permitted demonstration to take place at his farm using smaller model spreader, to determine if it would be suitable for his purposes. After he saw the equipment in use, he ordered the larger 5570 model. [3] There was no communication between the parties from the delivery date until sometime in late July or early August, 2000. According to Mr. Cowan, the Spreader sat idol until August. When used for the first time, the main chain snapped within five minutes of operation. This breakdown prompted series of telephone calls between the plaintiff and representatives of both defendants. The cause of the breakage was identified, by the manufacturer, as being closure of the rear door while operating the Spreader. The chain was repaired by the plaintiff, but it broke again shortly after the Spreader was returned to service. Following the second breakdown Mr. Cowan contacted the manufacturer by telephone. He described the subsequent events in his affidavit as follows: 6. was then informed by Larry Meyer that he would fly up in order to repair the machine, and if it didn’t work the Defendant, Meyer MFG Corp. would take the machine back and refund the purchase price. After that never heard from them again. 7. made numerous phone calls to Apollo Distributing Corporation and Meyer MFG Corp. but no satisfactory arrangement was made. In fact, since the machine was delivered have not seen anybody from either of the Defendants. 12. tried to use the said spreader in the fall of 2001 and hereto annexed to this my affidavit and marked as exhibit “D” is repair bill from Sagal Brothers Sales dated October 21, 2001 in the sum of $1,324.89. We again tried to spread the compost but the machine broke within 10 seconds. 13. Because the spreader did not work as it was intended the Plaintiff had to purchase new machine to spread the compost in October, 2000. [4] Following the second breakdown the plaintiff retained counsel. By correspondence dated November 2, 2000, directed to both defendants, the plaintiff rejected an offer to have the spreader returned to the factory for warranty repair. The correspondence states, in part: At one point, Meyer Mfg. Corp. suggested that they would transport the spreader back to Wisconsin in order to make modifications and then return the same to Mr. Cowan. This is not satisfactory to Mr. Cowan and he has no assurance that the machine will then work properly. We are hereby demanding the return of the purchase price of $37,000.00 and you may take delivery of the said spreader. [5] The purchase price was not refunded. Despite efforts by Apollo the Spreader was not returned to the manufacturer for examination and repair. major obstacle preventing return of the Spreader was the plaintiff’s insistence, as precondition, that he could reject the Spreader and receive full refund of the purchase price, if he was not satisfied. [6] In written argument the plaintiff identified the main point of contention as follows: 4. That the Plaintiff would have allowed the Defendants to take the spreader to Wisconsin in order to have the same repaired, but when the same was returned wanted warranty under The Agricultural Implements Act which the Defendants refused to give. The plaintiff was insistent that upon repair of the Spreader he retained the right to reject the same and obtain full refund of any moneys paid, pursuant to The Agricultural Implements Act, R.S.S. 1978, c. A-10. [7] This position was confirmed and clarified in subsequent correspondence dated January 4, 2001, directed to the defendants’ solicitor. The correspondence states, in part: My client is prepared to have Meyer Manufacturing Corporation return the model 5570 to the plant in Dorchester, Wisconsin in order to have the same repaired. However, he would like the same warranted when it is returned under the Agricultural Implements Act, which would mean that if the same did not perform well the work for which it is intended, Glen Rose Farms could give the Notices under Section 36 of the said Act and your clients would be bound by the same. [8] According to the plaintiff’s affidavit, paragraph 13, he had already purchased replacement spreader by October, 2000. Under this circumstance question whether his efforts to obtain warranty repair were sincere and suspect that his objective was to secure refund of the purchase price, whether or not the Spreader was repaired. [9] In defence of the claim Apollo filed the affidavit of its president, Paul Andre. Mr. Andre was produced for cross-examination. In his affidavit he states, inter alia: 5. THAT after the equipment was delivered, we heard nothing about the unit until sometime in July when apparently Mr. Cowan was experiencing some difficulties utilizing the equipment in his operations. We have no idea if he had been successfully using the equipment prior to that time. 8. THAT Mr. Cowan had been advised in July of 2000 that if he was having difficulties with the larger unit we were prepared to make smaller unit available for him at any time. It was after this offer had been made that Mr. Cowan indicated that he had been able to get his larger unit working and he was going to keep it. 11. THAT on more than one occasion, we, along with the manufacturer, offered to perform warrant work for Mr. Cowan directly at the factory. This entailed shipping the unit to the manufacturer in the United States. Our offer had included free shipping in order to ensure that we could satisfy this customer. 16. THAT it is of great concern to myself and the manufacturer that we were not given the opportunity to take corrective action with respect to this unit before the plaintiff choose to take legal action. When the customer experienced his first minor problem of the failure of the chain, his immediate response was to reject the machinery. He ultimately changed his mind after he spoke on the phone with Larry Meyer on the proper operation of the rear hydraulic gate. 18. THAT the defendants are both very concerned that the reason the plaintiff refuses to have he equipment shipped to the factory to be examined and repaired is that he is afraid of either of two possible results. First of all, it will be shown that the equipment is working properly or secondly, it will be shown that the user is spreading improper material, contrary to the original intended use of the spreader for material uncontaminated with earth materials. [10] The Agricultural Implements Act is code which governs the respective rights of vendors and purchasers of farm implements in Saskatchewan. Section 36 of the Act is applicable to this case. Although subsequently amended (S.S. 2003, c. 5, s. 22) at the relevant time s. 36 of the Act in part read: 36. contract for the sale of new implement shall be deemed to carry the following express joint and several warranties on the part of the dealer and the distributor for period of one year from the date of delivery, and where further period is hereinafter provided or is set forth in the sales contract, for that further period: 1. that the implement is well-made and of good materials; 2. that if the implement is properly used and operated it will perform well the work for which it is intended and in the case of engines that the warranted horse power can be developed under fit and suitable conditions; 3. and where: (a) within ten-day trial period, the implement does not perform well the work for which it is intended; (b) the purchaser gives, within the ten-day trial period, notice in writing to the dealer at the address given for the dealer in the sales contract, or to the distributor, that the implement does not work well; and (c) within period of seven days following receipt of the notice mentioned in clause (b), the dealer or the distributor does not make the implement perform well the work for which it is intended; the purchaser may, by giving written notice to the dealer or the distributor within the three days immediately following the seven-day period, reject the implement, in which case the sales contract shall be at an end and the purchaser shall be entitled to return of any moneys paid or notes given by him for the purchase of the implement and of the freight charges paid by him, and if trade-in implement has been taken by the dealer it shall be returned, or if trade-in cannot be returned in the same condition or has been sold to third party the dealer shall make payment to the purchaser in the amount stated in the sales contract; provided that the purchaser shall forfeit his right to reject the implement if he fails to give either of the notices within the time limit, unless the dealer or distributor either before or after the expiration of the time limit does any act, or so conducts himself, as to lead the purchaser to believe that the notices are not required to be, or to have been, given; 5. that the implement will be durable if used under fit and suitable conditions and kept with proper care and that parts proving defective will be replaced free of charge upon return of the defective parts to the dealer’s place of business or to the distributor; and that, where the purchaser returns the implement to the dealer’s place of business, the dealer will install the new parts without charge; and that all parts replaced within the warranty period are warranted to be durable for the duration of the original one-year warranty or for ninety days from the date of installation, whichever is longer; [11] In its claim the plaintiff asserts that the Spreader was “entirely unfit for spreading compost” and did not meet the warranties imposed by operation of the Act. The plaintiff claims judgment for the purchase price of the Spreader in the sum of $37,000.00 and damages for repairs to the Spreader in the sum of $2,344.00, pre-judgment interest and costs. [12] In Kolibab v. Tenneco Canada Inc. (1996), 1996 CanLII 6886 (SK QB), 147 Sask. R. 67 (Sask. Q.B.), Klebuc J. considered the burden of proof prescribed by s. 36 of the Act. He stated at para. [27] The Saskatchewan Court of Appeal in Hinton Enterprises Ltd. v. Tucker Investments Ltd. et al. (1987), 1987 CanLII 4838 (SK CA), 57 Sask. R. 47 rejected the proposition that s. 36 of the Act shifts the burden of proof from the purchasing farmer to the selling dealer and distributor to the extent that they must prove the purchasing farmer failed to operate the implement properly, failing which, breach of the s. 36(2) warranty is to be inferred. Speaking for the court, Gerwing, J.A., at p. 49, summarized the evidentiary obligations under s. 36 as follows: Section 36(2) imports into contract such as this one an express warranty. The onus of proof which usually falls upon an aggrieved party alleging breach of warranty has not been legislatively altered by this or any other section in the Act. The statute inserts the warranty, but does not purport to alter the normal burdens of proof for person seeking its protection. The learned trial judge thus correctly instructed himself that the onus of proving breach of warranty is upon the party asserting its breach. The subtle shifting back and forth of onus argued for by the appellant is not present in the statute. [13] The plaintiff has not established to my satisfaction, on a balance of probabilities, that the Spreader was not fit for the purpose of spreading compost nor manufactured in compliance with the warranties contained in the Act. [14] Other than the fact of a chain breakage, on two separate occasions, there was no evidence produced by the plaintiff, either in Mr. Cowan’s affidavit, or during his testimony, addressing the cause of breakage. [15] If deficiencies did exist in the Spreader, as claimed, the dealer or the distributor are expressly entitled to an opportunity to repair or correct the deficiencies, upon receipt of notice in writing. The defendants were deprived of the opportunity to inspect and repair by the unreasonable actions of the plaintiff, in his failure to allow return of the Spreader. [16] In order to reject the Spreader and obtain refund of any moneys paid, pursuant to the Act, the plaintiff must comply with s. 36.3. Subsection 36.3(b) requires the plaintiff to provide written notice to the dealer that the implement does not work well, within specified period. Pursuant to s. 36.3(c) the dealer must make the implement perform well within seven days following receipt of the written notice. If the purchaser has provided the required written notice and the dealer has not taken necessary steps to make the implement work well, the purchaser may, upon giving further written notice, reject the implement. [17] The plaintiff has not established on a balance of probabilities that written notice was provided to the defendants in the manner required by s. 36.3(b) of the Act. Further, based upon the evidence presented, I cannot find that “the dealer or distributor, either before or after the expiration of the time limit (did) any act or so conduct(s) himself, as to lead(s) the purchaser to believe that the notices are not required to be, or to have been given” as stipulated in s. 36.3. [18] Accordingly, the plaintiff’s claim as against the defendant Apollo is dismissed. Costs are awarded to the defendant.
The plaintiff bought a spreader from the defendant Apollo Distributing Corporation (Apollo). The defendant Meyer Mfg. Corp. (Meyer) manufactured the spreader and did not defend the action. The plaintiff claims that the spreader was entirely unfit for spreading compost and did not meet the warranties imposed by The Agricultural Implements Act. The plaintiff claimed judgment for the purchase price and damages for repairs to the spreader. HELD: The plaintiff's claim was dismissed. The plaintiff did not establish that the spreader was not fit for the purpose of spreading compost or that it was not manufactured in compliance with the warranties in the Act. 1) Other than the fact of a chain breakage on two separate occasions, there was no evidence produced by the plaintiff addressing the cause of breakage. 2) If deficiencies did exist in the spreader, the dealer or distributor are expressly entitled to an opportunity to repair or correct the deficiencies, upon receipt of notice in writing. The defendants were deprived of the opportunity to inspect and repair by the unreasonable actions of the plaintiff in his failure to allow the return of the spreader. 3) The plaintiff did not establish that written notice was provided to the defendants as required by s. 36.3(b) of the Act. The Court could not find that the dealer or distributor led the purchaser to believe that the notices were not required to be given pursuant to s. 36.3 of the Act.