Garry Beutler - v. -, 2010 SKPC 48

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2010 SKPC 048 Date: May 5, 2010 File: Claim No. 108/08 Location: Yorkton _____________________________________________________________________________ Between: Garry Beutler - and - Leon’s Manufacturing Company Inc. Joel Bender, Richmond Nychuk For the Plaintiff Wayne Rusnak, Q.C.

For the Defendant _____________________________________________________________________________ JUDGMENT BRENT KLAUSE , J ____________________________________________________________________________ [ 1 ] The Plaintiff is a farmer, resident in the Whitewood District, Province of Saskatchewan. The Defendant is an agricultural implement manufacturer with offices located in Yorkton, Saskatchewan. [ 2 ] In April of 2006, the Plaintiff purchased an 805 Front End Loader (FEL) manufactured by the Defendant from an agent of the Defendant, White’s AG Sales and Service in Whitewood, Saskatchewan for $13,268.00.

The FEL was installed by White’s on the Plaintiff’s Case 2294 tractor subsequent to that purchase.

[ 3 ] The FEL is an attachment specifically designed to lift and transport large round bales, commonly encountered in rural farming operations as they eliminate the need for the farmer to individually handle and transport much smaller bales of hay, straw or other forage. [ 4 ] The Plaintiff experienced some operational and installation issues with the FEL, and after some initial repairs by White’s, he contacted the Defendant to demand that he return the FEL and get his purchase money returned. [ 5 ] The Defendant assured him that they would stand by their product and that any issues he had with their product they would satisfactorily address.

Ultimately the FEL was returned to the Defendant’s plant in Yorkton, Saskatchewan in November of 2006 and the original frame which had been determined to be bent was replaced with a new frame. After a test run with a bale at the factory in Yorkton, the Plaintiff returned to his farm with the FEL and ultimately upgraded the hydraulics of his existing tractor in an effort to make the FEL a completely useful implement to him.

The Defendant paid for the transportation and to effect the necessary repairs in what appears to be a continuing and longstanding commitment to their customer and to ensure that the product they sold was up to both the expectations of the Plaintiff and the reputation of the Defendant. [ 6 ] Unfortunately, the FEL never met the expectations of the Plaintiff; to address his problems with bale handling, he purchased a Versatile tractor which is specifically designed to haul these sorts of bales without the problems he encountered with using the FEL on his existing Case tractor.

He has only used it sporadically since its return and insists that he now owns “an expensive lawn ornament”. [ 7 ] The Plaintiff is completely unhappy with the FEL and seeks to recover the cost of the purchase of the FEL, the costs of his purchase of the new Versatile 276 Bi-directional tractor which he had to purchase to properly handle his bale requirements and other costs including any transportation costs and upgrades to the hydraulics of his original Case tractor. [ 8 ] The Defendant takes the position that the FEL manufactured by them is a reliable and efficient method of handling large round bales if used properly and in the fashion that it was specifically designed for.

It is their position that the Plaintiff used the FEL improperly and that is what has led to the damage it suffered or the inability of the Plaintiff to use the FEL to his personal satisfaction. [ 9 ] Much of the evidence that was presented during the trial revolved around a key issue - what is this FEL designed to handle? The Plaintiff, like many farmers, tries to get the maximum usage out of any implement he purchases in an effort to reduce his costs and make the equipment more useful to his operation.

Unfortunately, this can occasionally lead to either disastrous results or as in this case, less than complete satisfaction with the implement. The position of the Defendant is that this particular loader is clearly designed to handle only one bale at a time; one large round bale, laid horizontally within the length of the bucket attachment. It is not designed to handle two bales standing up in the bucket or even one bale standing up in the bucket as this leads to overloading and the rear tractor tires lifting off the ground which then makes the whole tractor dangerously unstable.

This can also put more stress on the hydraulics which run the lift capacity of the tractor as the bales are then dangerously dangling out in front of the tractor on the FEL and this could lead to the tractor tipping off of its centre of gravity. [ 10 ] The Plaintiff insists that he has often used other loader tractors with no problem and cites the Versatile Bi-Directional as a case in point.

With respect, in my opinion, this is not an adequate comparison as I am satisfied on the evidence before me that the Versatile FEL is specifically designed for the kind of performance expected by the Plaintiff, whereas the FEL sold by the Defendant is clearly not designed to handle more than one bale at a time and is clearly not designed to handle bales being moved vertically in the bucket attachment.

Clearly for the FEL to function as it is designed to function, the round bale needs to be laid horizontally within the bucket, the grappling portion then comes down to securely hold the bale in place while being moved and the whole operation is then accomplished in a timely and safe manner as shown in the photographs in Exhibit P1. [ 11 ] In my opinion, the Plaintiff used this FEL for a function that it was clearly not designed to perform in an effort to save himself both time and money.

The Defendant at all times tried to make the Plaintiff happy with his purchase and demonstrated to him the proper use of the FEL. If the Plaintiff insists on using an implement in a fashion for which it is clearly not designed, it is difficult to see how the Defendant can be liable in contract. The Plaintiff called Mr. Edwards to indicate that in his opinion, the Plaintiff operated the FEL properly. The evidence on this point is not particularly useful as the Plaintiff would often be using the FEL where it could not be

observed by Mr. Edwards and I do not accept that Mr. Edwards would have authorized the use of this particular FEL in lifting two bales vertically or even one bale vertically. The design speaks for itself. [ 12 ] The Plaintiff further relies on The Agricultural Implements Act and The Sale of Goods Act as being applicable to this action.

The Defendant asserts that they have complied with the requirements of The Agricultural Implements Act and The Sale of Goods Act has no application. [ 13 ] The Agricultural Implements Act provides as follows: s. 36(1) Every contract for the sale of a new implement is deemed to include the express joint and several warranties on the part of the dealer and the distributor that are mentioned in this section.

(2) The warranties mentioned in this

section are to apply for the longer of: (

a) one year from the date of first use of the new implement; and (

b) any longer that is provided by this Act or is set out in the sales contract.

(4) Every contract for the sale of a new implement is deemed to include a warranty that, if the new implement is properly used and operated, it will perform well the work for which it is intended. (5)Every contract for the sale of a new implement is deemed to include a warranty that the purchaser may do the things mentioned in subsection(6) if: (

a) the new implement does not perform well the work for which it is intended within a period that is the earlier of: (

i) the first ten days of use by the purchaser during the season of use; and (ii) the first 50 hours of use by the purchaser during the season of use. (

b) within the period mentioned in clause (a), the purchaser gives written notice 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 a period of seven days following receipt of the written notice mentioned in clause (b), the dealer or the distributor does not make the implement perform well for the work for which it is intended.

(6) In the circumstances mentioned in subsection (5); (

a) the purchaser may, by giving written notice to the dealer or the distributor within the three days immediately following the seven day period mentioned in clause (5)(c), reject the implement; and (

b) if the purchaser rejects the implement in accordance with clause (a): (

i) the sales contract is ended; (ii) the purchaser is entitled to a return of any moneys paid or notes given by the purchaser for the purchase of the implement and of the freight charges paid by the purchaser; and (iii) if any goods have been taken in trade by the dealer, the dealer shall: (

A) return those goods to the purchaser; or (

B) if the goods cannot be returned in the same condition or have been sold to a third party, pay to the purchaser the amount of the fair market value of those goods.

(7) Notwithstanding subsections (5) and (6), the purchaser is deemed to forfeit the purchaser’s right to reject an implement if the purchaser fails to give either of the written notices within the time limit mentioned in those subsections, unless the dealer or distributor either before or after the expiration of the time limit does any act or engages in any conduct that leads the purchaser to believe that the written notices are not required to be given or had been given. [ 14 ] In the instant case it is the position of the Defendant that the proper notices under s. 36 were not given.

The position of the Plaintiff as indicated in the brief filed is that the Plaintiff was not required to provide those notices as the Defendant acted in such a fashion as to lead the Plaintiff to believe that the notices were not required. I agree that in the circumstances of this case that the

Defendant indeed was not insisting on the notices required by the Act and were this complaint brought in a timely fashion in 2006, they would find little shelter in that position. In my opinion however, the Defendant reacted properly and completely to the complaint in 2006 by providing a new frame for the FEL, installing it and providing upgraded cylinders, all with the intent to fully comply with the Defendant’s contractual and statutory obligations. It would be unreasonable in the extreme to now find that the Plaintiff can still rely upon this

section of the Act when over three years has passed since the Defendant, quite properly, assumed that the matter had been resolved satisfactorily. [ 15 ] Clearly, the Plaintiff did exercise his right under The Agriculture Implements Act to return the implement and recover his money in 2006 but subsequently agreed to have the default fixed at the expense of the Defendant and then agreed to keep the implement.

It is hard to see how, many months or years later, the Plaintiff can then rely on The Agricultural Implements Act in an effort to recover his money and return the item when the Defendant had no further knowledge of his continuing problems and had in effect been denied the opportunity to re-address those issues. As far as the Defendant was concerned, the concerns of the Plaintiff in November of 2006 had been satisfactorily addressed. [ 16 ] The issue of time limits, however, is a moot point as I have previously found that the Plaintiff did not use the implement as required by s. 36(4) of the Act .

He did not properly use and operate it. In my opinion, had the Plaintiff properly used the FEL in the manner and the form in which it was designed for use, he would have been satisfied with its performance. [ 17 ] Section16 of The Sale of Goods Act provides as follows: Subject to the provisions of this Act and of any Act in that behalf there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale except as follows: 1.

Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment and the goods are of a description that it is in the course of the seller’s business to supply, whether he be the manufacturer or not, there is an implied condition that the goods shall be reasonably fit for that purpose; ......................... 3. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade; 4.

An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith. [ 18 ] The Defendant asserts that The Sale of Goods Act does not apply to these circumstances. The question then becomes whether the description of ‘goods’ in the Act is wide enough to encompass farm implements especially when there is a more specific Act dealing expressly with farm implements, i.e. The Agricultural Implements Act .

In my opinion, even if The Sale of Goods Act applied to the instant case, it would not assist the Plaintiff as the Plaintiff never expressed to the Defendant that he would be using this FEL in the fashion in which he ultimately did and therefore he did not rely on the seller’s skill or judgment in that regard. [ 19 ] I, for all these reasons stated above, dismiss the Plaintiff’s action. [ 20 ] Dated at the City of Yorkton, this 5 th day of May 2010. Brent Klause, J