Spectrum Stone Ltd. v. Johl & Smiley Date:, 2014 BCPC 123

Citation: Spectrum Stone Ltd. v. Johl & Smiley Date: 20140422 2014 BCPC 0123 File No: 25388 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SPECTRUM STONE LTD. CLAIMANT AND: RABINDER SINGH JOHL AND MIRIAM MALKA SMILEY DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP DONALD YULE Counsel for the Claimant: Alan Mok and Vincent Huang Appearing on their own behalf: Rabinder Singh Johl and Miram Malka Smiley Place of Hearing: Richmond , B.C. Date of Hearing: April 11, 2014 Date of Judgment: April 22, 2014

BACKGROUND [ 1 ] Spectrum Stone Ltd. (the “Claimant”) seeks to recover from Rabinder Singh Johl and Miram Malka Smiley (the “Defendants”) the balance of an account said to be owing for the fabrication and installation of granite countertops in residential premises owned by the Defendants located at 6045 – 49 th Avenue, Delta, BC. The Defendants say that the account has already been paid in full. The balance owing according to the Claimant is $1,612. The countertops were installed in March 2012. EVIDENCE OF THE CLAIMANT [ 2 ] Vincent Huang (“Mr.

Huang”) was the Claimant’s sales representative who handled the sale transaction. His evidence is that the Defendants came to the Claimant’s show room and picked out the type of granite slab (Venetian Gold – 2CM – edge square) that they wished to have used. They did not select the particular slab that they viewed. Mr. Huang attended the Defendants’ premises to measure up. He quoted a price of $2,600 plus taxes and received a deposit of $500 cash. The following day he returned to the premises to do additional measuring. The Defendants were not present but another contractor was working in the house. Mr.

Huang left a hand written estimate dated February 15, 2012 and signed by himself in duplicate in the house with a request that the customer sign one copy of the estimate and return it. This was never done. The countertop was installed by early March. Immediately there was a complaint of a smudge mark in the countertop. Mr. Huang attended the house in response. The parties are agreed that there was a big dark circle in the countertop. Mr. Huang says this was not a defect but a part of the natural pattern of the granite. Mr.

Huang took a photograph of the countertop and returned to his office where after discussion with Mr. Mok, Mr. Huang offered the Defendants a discount in the price of $300 plus two free cutting boards. Mr. Huang says that the Defendants accepted that offer and Mr. Huang subsequently met Mr. Johl by pre arrangement at a gas station. Mr. Huang was expecting to receive the balance of $1,800 but Mr. Johl gave him $500 cash only and asked for another two weeks to pay the remaining $1,300.

The Claimant prepared an invoice dated March 8, 2012 showing the total account including HST of $2,912, a payment/credit of $1,300 and a balance due of $1,612. It is acknowledged however that this invoice was never sent to the Defendants. [ 3 ] Mr. Huang says that he attempted to follow up to collect the unpaid balance. There is an exchange of text messages in June 2012 between the parties and a further exchange in July 2012 between the parties. In April 2013 the Claimant sent two letters addressed to the Defendants at the premises at 6045 – 49 th Avenue, Delta demanding payment of the balance owing.

Those letters were never returned as undeliverable. In April 2014 the Claimant commenced this action. EVIDENCE OF THE DEFENDANTS [ 4 ] The Defendants agree that they attended the Claimant’s premises to select the granite for the kitchen countertop. They both say however that they picked out the particular slab of Venetian Gold granite that they wished to be used in the fabrication of their countertop. This particular slab did not have any large dark circle in it. Mr. Johl further says that the price agreed to was $2,000 all cash.

He never saw the quotation dated February 15, 2012, the invoice dated March 8, 2012 nor the two demand letters dated April 2013 until these proceedings were commenced. He paid a $500 deposit. When the countertop was installed both Defendants observed the large dark circle in the granite and Ms. Smiley in particular objected to it. Mr. Huang attended the home and was initially asked if he could replace the entire countertop. Mr. Huang indicated he could not do that, and he did not have authority to reduce the price.

He subsequently offered to supply two free cutting boards (which the Defendants say they have never received). He did not offer a price reduction of $300. The Defendants say that they reluctantly agreed to the offer. The Defendants say that they both met Mr. Huang at the gas station by pre arrangement and Mr. Johl paid a further $1,500 in cash which concluded the matter. Mr. Johl acknowledges the exchange of text messages with Mr. Huang in June and July 2012 but cannot recall or explain why Mr. Huang would still be wishing to meet.

The Defendants have moved several times and although they owned the premises in April 2013 they were rented to others. DISCUSSION AND ANALYSIS [ 5 ] The first issue is whether the Defendants selected the actual granite slab from which their countertop was to be made, or nearly the type of granite i.e. Venetian Gold. I prefer the evidence of the Defendants for two reasons. First, when viewing slabs, as opposed to smaller samples, I think it is more likely that a customer would pick a particular slab, knowing that there are natural variations among slabs of the same type of granite.

Second, the Defendants did complain about a large dark circle immediately following installation of the countertop. This is inconsistent with Mr. Huang’s evidence that all slabs of this type have large dark circles. [ 6 ] The second issue is what was the contract price. I find that contract price was $2,000 cash. I do so for the following reasons. The Defendants say that they never saw the hand written quotation dated February 15, 2012 in the amount of $2,600 plus HST. Paragraph 4 of the Claimant’s statement of claim implies that the quotation was handed to Mr. Johl at the time of payment of the $500 deposit.

It says that a deposit of $500 was received from Mr. Johl and Mr. Johl “took away” the quotation (in duplicate) but did not sign and return the duplicate. Paragraph 4 of the Claimant’s trial statement also implies personal delivery of the quotation to Mr. Johl. It states that Mr. Huang “handled (sic) over the Claimant’s quotation (in duplicate) and asked (Mr. Johl) to sign and return the duplicate”. Mr. Huang’s evidence at the hearing however was significantly different.

He agreed that the $500 deposit was paid at the time when the first measurements were taken, but the quotation was taken to the home the following day, when the Defendants were not present, and was left somewhere in the house with a note requesting signature and return. Second, in his evidence at the hearing, in discussing the meeting at the gas station to receive final payment, Mr. Huang said he was expecting to receive payment of $1,800.

Allowing for the deposit of $500 and the discount of $300 because of the large dark circle, a balance of $1,800 suggests a purchase price of $2,600 i.e. no additional charge for HST. This is consistent with the Defendant’s evidence that the agreement was for a cash deal without taxes. The foregoing facts cast doubt upon the accuracy of the February 15, 2012 quotation. The Claimant proceeded to fabricate and install the counter knowing that it did not have its quotation accepted in writing by its customer.

The onus of establishing the contract price is on the Claimant and it bears the risk of not establishing the contract price where it does not follow its own procedure in having quotations signed by the customer. [ 7 ] The final issue is whether the Defendants paid $1,500 in final satisfaction of the account at the meeting at the gas station. Mr.

Huang says that only $500 cash was paid at that time. On this issue I prefer the evidence of Mr. Huang. In my view it is clear from the text messages from Mr. Huang to Mr. Johl in June and July 2012 that Mr. Huang was not communicating to exchange pleasantries but was seeking some further payment. In the June 8, 2012 text Mr. Huang says “please give me a call me (sic) if not I will past (sic) the file to my boss this is the final notice”. The Defendants have no explanation as to why they would be receiving a “final notice” with respect to a contract that had been fully paid. I accordingly accept Mr.

Huang’s evidence that only $500 was paid at the gas station. It is possible as Mr. Huang says that Mr. Johl said he needed more time to pay the balance. It is also possible that the Defendants had not accepted the promise of cutting boards as satisfactory compensation for their disappointment with the appearance of the countertop and decided not to make payment in full. [ 8 ] Thus I conclude that the contract price was $2,000 cash. The Defendants paid a $500 deposit and a further $500 at the gas station. In addition they were entitled to a $300 discount on account of the appearance of the countertop.

Thus, the amount remaining owing is $700. [ 9 ] The Claimant is accordingly entitled to a judgment against the Defendants for $700, together with court ordered interest from March 15, 2012 to the date of judgment. The Claimant is also entitled to filing fees of $100 and service fees of $30. [ 10 ] Judgment accordingly. __________________________________ Justice of the Peace, Donald W. Yule, Q.C.