2012 QCCQ 10362, 2012 QCCQ 10362

Champoux Sampson c.

Turpin 2012 QCCQ 10362 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF rouyn-noranda TOWN OF rouyn-noranda Civil Division No: 600-32-003140-126 DATE: October 25, 2012 ______________________________________________________________________ BY THE HONOURABLE JOSÉE BÉLANGER, J.C.Q. ______________________________________________________________________ constance champoux sampson and BERNARD SAMPSON, residing and domiciled at […]in Rouyn-Noranda, district of Rouyn-Noranda (Quebec) […] Plaintiffs v. lise turpin and GÉRALD DION, residing and domiciled at […], in Rouyn-Noranda, district of Rouyn-Noranda (Quebec) […].

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs who purchased a cottage on 235, Boissonneault in Rouyn-Noranda from the Defendants, sue them for $7 000, an amount they allege as promised to be paid by the Defendant Gerald Dion in order to repair the said cottage. [ 2 ] The Defendants deny liability claiming that the house was sold without any warranty of quality and that they disclosed to the Plaintiffs prior to the sale all the informations they had concerning that house.

Questions in issue [ 3 ] Whether the Defendants have to pay the amount claimed by the Plaintiffs? [ 4 ] Did the Defendants induced by fraud the Plaintiffs to buy the house pursuant to

section 1401 of the Civil Code of Quebec ? Facts [ 5 ] On March 21, 2011 the Plaintiffs purchased a cottage on 235, Boissonneault in Rouyn-Noranda from the Defendants. [ 6 ] The sale was made without any warranty of quality. The amount of the sale was $50 000. [ 7 ] The Plaintiffs didn't inspect the house prior to the sale.

One of the Plaintiffs, Mr Sampson said that the inspection was unnecessary because of the snow that was covering everything including the house's foundations. [ 8 ] Then in the springtime the Plaintiffs found out that the foundations were rotten. [ 9 ] According to the Plaintiffs prior to the sale the Defendants told them many times that the house was in good condition which was not true. [ 10 ] According to the Plaintiffs the cottage was now useless.

Rebuilding the house was cheaper than keeping it. [ 11 ] According to Mr Sampson, the Defendant Gerald Dion offered him $25 000 because of the poor condition of the foundations. The Plaintiffs accepted that offer. [ 12 ] The Plaintiffs demolished the cottage.

The Defendant never paid the amount of $25 000. [ 13 ] The Plaintiffs reduced that amount to $7 000 which is the maximum amount that can be claimed in an action involving a small claim. [ 14 ] One of the Defendants, Mrs Lise Turpin told the Court that prior to the sale she warned Mr Sampson about the house's condition. [ 15 ] She told him that they didn't know in which condition was the underground part of the house. [ 16 ] Mr Sampson replied: « I don't care ». He said that his wife wanted to buy the house.

[ 17 ] Mrs Turpin said that she knew that her husband offered $20 000 to Mr Sampson. He did that only to get some peace. [ 18 ] The other Defendant, Mr Dion said that he didn't know that the house's foundations were rotten. To get some peace he made the offer to Mr Sampson to repair the foundations. Mr Sampson refused his offer because he wanted to rebuild the cottage. [ 19 ] Couple of weeks after Mr Dion offered to Mr Sampson $20 000. This was done again to get some peace. Then two hours later he removed his offer and called back Mr Sampson to tell him that it was cancelled.

Analysis [ 20 ] In the present case the purchasers must prove by preponderant evidence the fraud of the Defendants pursuant to

section 1401 of the Civil Code of Quebec . 1401 . Error on the part of one party induced by fraud committed by the other party or with his knowledge vitiates consent whenever, but for that error, the party would not have contracted, or would have contracted on different terms. [ 21 ] The Plaintiffs cannot rely on the warranty of quality defined in

section 1726 of the Civil Code of Quebec . [ 22 ] The Defendants were not aware that the house's foundations were rotten. They disclosed to the Plaintiffs all the information they had at the time of the sale. There has been no wilful misrepresentation pursuant to

section 1401 of the Civil Code of Quebec . [ 23 ] Even if the Defendant Dion offered an amount of $20 000 reduced to $7 000, this offer is not an admission of the Defendant's liability. This offer was made for a purpose of negotiation and only to get some peace. Though the Plaintiffs have no right to claim this amount. FOR THESE reasons , THE COURT: [ 24 ] Dismisses the action against the Defendants; [ 25 ] Condemns the Plaintiffs solidarily to pay the Defendants judicial costs in the amount of $152,00. __________________________________ JOSÉE BÉLANGER, J.C.Q. Date of hearing: August 28, 2012