Miller and Miller v. Pine-Log Homes Ltd. and T P Wood Products Ltd., (1984) 50 A.R. 106 (QB)

• Judge: Lomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 25, 1984
• Citations: (1984), 50 A.R. 106 (QB)

Miller v. Pine-Log Homes Ltd. (1984), 50 A.R. 106 (QB)

MLB headnote and full text

Miller and Miller v. Pine-Log Homes Ltd. and T P Wood Products Limited

(No. 79-08-00689)

Indexed As: Miller and Miller v. Pine-Log Homes Ltd. and T P Wood Products Ltd.

Alberta Court of Queen's Bench

Judicial District of Medicine Hat

Lomas, J.

January 25, 1984.

Summary:

The plaintiffs brought an action for damages in contract and tort against the dealer and manufacturer of pine-log homes. Logs which the plaintiffs purchased and left sitting on their land for over four months warped and became unusable. The dealer and manufacturer disclaimed all liability for the warpage.

The Alberta Court of Queen's Bench dismissed the action and held that the plaintiffs were wholly at fault for failing to construct the home within a reasonable time after delivery of the logs.

Contracts - Topic 521

Parties - Who constitutes a party - General - A customer negotiated with a dealer for the purchase of a log home - The contract required that the manufacturer confirm any sale - The Alberta Court of Queen's Bench held that the required confirmation did not make the manufacturer a party to the contract, but merely showed that the manufacturer was prepared to supply the dealer's order - See paragraphs 43 to 48.

Sale of Goods - Topic 4106

Conditions and warranties - Implied or statutory terms as to quality or fitness - Fitness or suitability of goods - The purchasers of a log home kit stored the logs in their delivered state for over four months before unpackaging them for construction - Some of the logs warped and were unusable - The purchasers submitted that the logs were not reasonably fit for the purpose for which they were intended (Sale of Goods Act, s. 17) - The Alberta Court of Queen's Bench held that protection under s. 17 extended only until the purchasers had a reasonable opportunity of dealing with the goods, and since the purchasers did not build within a reasonable time, s. 17 was inapplicable - See paragraphs 55 to 58.

Torts - Topic 4335

Suppliers of goods - Products liability - Negligence - Manufacturers - Duty to warn users respecting dangers - The purchasers of a log home kit stored the logs in their delivered state for over four months before unpackaging them for construction - Some of the logs warped and were unusable - The vendors knew that warpage could occur if the logs were not properly stored, but did not inform the purchasers - The Alberta Court of Queen's Bench held that there was no duty on the manufacturer to warn the purchasers of warpage, because the logs were neither inherently dangerous nor known to be defective - See paragraphs 59 to 65.

Cases Noticed:

Tregunno v. Aldershot, [1944] 1 D.L.R. 102, appld. [para. 56].

Bull v. Robison, 10 Exch. 342, appld. [para. 57].

Lambert and Lambert v. Lastoplex Chemicals Co. Limited and Barwood Sales (Ontario) Limited, [1972] S.C.R. 569, refd to. [para. 61].

Ho Lem v. Barotto Sports Ltd. and Ponsness-Warren, Inc., [1976] 6 W.W.R. 430, dist. [paras. 61, 63].

Rivtow Marine Ltd. v. Washington Iron Works and Walkem Machinery & Equipment Ltd., [1974] S.C.R. 1189, dist. [para. 62].

Neonex Housing Industries Ltd. (now Neonex Canada Ltd.) v. American Building Company (1982), 36 N.B.R.(2d) 305; 94 A.P.R. 305, leave to appeal denied (1982), 36 N.B.R.(2d) 359; 94 A.P.R. 359, refd to. [para. 64].

Cominco Ltd. v. Westinghouse Canada Ltd. (1982), 127 D.L.R.(3d) 544, refd to. [para. 64].

Ital-Canadian Investments Ltd. v. North Shore Plumbing and Heating Co. Ltd. et al., [1978] 4 W.W.R. 289, refd to. [para. 66].

Canadian Western Natural Gas Co. Ltd. v. Pathfinder Surveys Ltd., 12 C.C.L.T. 211, refd to. [para. 66].

Attorney General for Ontario v. Fatehi et al., 18 C.C.L.T. 97, refd to. [para. 66].

Corporation of the District of Surrey v. Carroll-Hatch & Associates Limited et al., 10 C.C.L.T. 226, not appld. [para. 67].

Robert Simpson Co. Ltd. et al. v. Foundation Co. of Canada Ltd. et al., 20 C.C.L.T. 179, not appld. [para. 67].

Statutes Noticed:

Sale of Goods Act, R.S.A. 1980, c. S-2, sect. 17 [para. 42].

Counsel:

E.W.N. MacDonald, Q.C., for the plaintiffs;

J.B. Laycraft, for the defendants.

This case was heard before Lomas, J., of the Alberta Court of Queen's Bench, Judicial District of Medicine Act, who delivered the following judgment on January 25, 1984.