Kosior v. Motz, 2006 SKPC 35

• Judge: Green, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: April 11, 2006
• Jurisdiction: Saskatchewan
• Citations: 2006 SKPC 35;(2006), 278 Sask.R. 100 (PC)

Kosior v. Motz (2006), 278 Sask.R. 100 (PC)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. AP.086

Robert Kosior (plaintiff) v. Donald Motz (defendant)

(2006 Claim No. 15; 2006 SKPC 35)

Indexed As: Kosior v. Motz

Saskatchewan Provincial Court

Green, P.C.J.

April 11, 2006.

Summary:

The plaintiff purchased a boat and trailer from the defendant for $8,900. The bill of sale contained an "as is" provision. After returning home, the plaintiff started the boat's inboard engine in his shop and noticed water coming out of a frost plug. He had the frost plug replaced and tried the boat in the water. The engine ran for two minutes and stalled. A mechanic advised the plaintiff that the engine had suffered frost damage and that the estimated repair cost was $5,820.56. The plaintiff sued the defendant for the cost of the repair or the return of the purchase price (rescission).

The Saskatchewan Provincial Court ordered that the plaintiff return the boat and trailer and that the defendant repay the plaintiff's purchase price plus $256 for the cost of diagnostic work done on the engine.

Sale of Goods - Topic 4062

Conditions and warranties - Warranties - Express warranty as to quality - [See Sale of Goods - Topic 4068 ].

Sale of Goods - Topic 4068

Conditions and warranties - Warranties - Disclaimer - "As is" clause - The plaintiff purchased a boat and trailer from the defendant for $8,900 - The bill of sale contained an "as is" provision - The plaintiff first started the boat's engine in his shop and noticed water coming out of a frost plug - He had the frost plug replaced and tried the boat in the water - The engine ran for two minutes and stalled - A mechanic advised that the engine had suffered frost damage and that the estimated repair cost was $5,820.56 - The plaintiff sued the defendant for the repair cost or the return of his purchase price (rescission) - The Saskatchewan Provincial Court ordered that the plaintiff return the boat and trailer and that the defendant repay the purchase price plus $256 for the cost of diagnostic work done on the engine - The defendant had guaranteed that the main engine would operate - There had been a breach of that guarantee - The doctrine of caveat emptor did not apply where the plaintiff had been deprived of substantially the whole benefit of the contract - While the defendant was not aware of the condition of the engine and had not made a fraudulent misrepresentation, he had made an innocent misrepresentation.

Sale of Goods - Topic 4404

Conditions and warranties - Exclusion of warranties - Caveat emptor - When applicable - [See Sale of Goods - Topic 4068 ].

Sale of Goods - Topic 6507

Breach - Remedies of buyer - Rescission - Fundamental breach - [See Sale of Goods - Topic 4068 ].

Sale of Goods - Topic 6508

Breach - Remedies of buyer - Rescission - Innocent misrepresentation - [See Sale of Goods - Topic 4068 ].

Cases Noticed:

Frey v. Sarvajc (2000), 194 Sask.R. 249 (Q.B.), refd to. [para. 21].

Pechout v. Potorocza (1998), 217 A.R. 377 (Q.B.), refd to. [para. 28].

Counsel:

Both parties appeared in person.

This action was heard before Green, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on April 11, 2006.