Storey and Storey v. Price, Atlan Industries Ltd., Hallmark Pool Corp. and Pool Corp. (Canada) Ltd., (1983) 45 N.B.R.(2d) 181 (CA)

• Judge: Hughes, C.J.N.B., La Forest and Angers, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 21, 1983
• Jurisdiction: New Brunswick
• Citations: (1983), 45 N.B.R.(2d) 181 (CA)

Storey v. Price (1983), 45 N.B.R.(2d) 181 (CA);

    45 R.N.-B.(2e) 181; 118 A.P.R. 181

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Storey and Storey v. Price, Atlan Industries Ltd., Hallmark Pool Corporation and Hallmark Pool Corporation (Canada) Ltd.

(No. 192/81/CA)

Indexed As: Storey and Storey v. Price, Atlan Industries Ltd., Hallmark Pool Corp. and Pool Corp. (Canada) Ltd.

Répertorié: Storey and Storey v. Price, Atlan Industries Ltd., Hallmark Pool Corp. and Pool Corp. (Canada) Ltd.

New Brunswick Court of Appeal

Hughes, C.J.N.B., La Forest and Angers, JJ.A.

January 21, 1983.

Summary:

Résumé:

The plaintiffs sued the installers and the manufacturers of a swimming pool for damages arising from its improper installation.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported in (1982), 36 N.B.R.(2d) 317; 94 A.P.R. 317, allowed the plaintiffs' action against all the defendants. The manufacturers appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Contracts - Topic 1484

Formation of contract - Collateral contracts - What constitute - A manufacturer's ads induced the plaintiffs to install a swimming pool - The ads appeared to warrant that the installed pool carried a 15 year guarantee - The New Brunswick Court of Appeal held that the offer of a guarantee in the ads and its acceptance by the plaintiffs constituted a collateral contract - See paragraphs 19 to 39.

Torts - Topic 4230

Suppliers of goods - Products liability - Warranties - Requirement of notice - Ads and brochures induced the plaintiffs to install a swimming pool - The ads represented that the installed pool carried a 15 year guarantee - The actual guarantee, readable only with a magnifying glass, applied only to pool components if properly installed - The plaintiffs did not read and never received the formal guarantee - The pool was improperly installed - The New Brunswick Court of Appeal held that the manufacturers could not escape liability by relying on the conditions in the guarantee, because they failed to give reasonable notice of their existence - See paragraph 19.

Torts - Topic 4341

Suppliers of goods - Products liability - Negligence - Manufacturers - Damage caused during delivery and installation - The New Brunswick Court of Appeal affirmed that the manufacturer of a swimming pool was liable for damages for its improper installation by the dealer - The court held that the offer of a guarantee in the manufacturer's ads and brochure and its acceptance by the plaintiffs constituted a collateral contract between the plaintiffs and the manufacturer - See paragraph 19 to 39.

Cases Noticed:

Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q.B. 256, consd. [para. 20].

Leitz v. Sask. Drug & Stationery Co. Ltd. (1981), 112 D.L.R.(3d) 106, consd. [para. 20].

De La Bere v. Pearson, Limited, [1908] 1 K.B. 280, consd. [para. 25].

L'Estrange v. Grauchaub, [1934] 2 K.B. 394, consd. [para. 33].

Richardson, Spence & Co., et al. v. Rowntree, [1894] A.C. 217, refd to. [para. 34].

Oromocto Development Corp. v. Oromocto Property Developments and Curlew Ltd. (1982), 37 N.B.R.(2d) 464; 97 A.P.R. 464, refd to. [para. 36].

Thornton v. Shoe Lane Parking Ltd., [1971] 2 Q.B. 163, refd to. [para. 36].

Ranger v. Herbert A. Watts (Quebec) Ltd. (1970), 10 D.L.R.(3d) 395, affd. (1971), 20 D.L.R.(3d) 450 (Ont. C.A.), refd to. [para. 37].

Hedley Bryne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465, refd to. [para. 38].

Neonex Canada v. America Building Company (1982), 36 N.B.R.(2d) 305; 94 A.P.R. 305, refd to. [para. 39].

Authors and Works Noticed:

Chesire and Fifoot, Law of Contract (9th Ed.), pp. 22-31 [para. 35]; 80 [paras. 27, 38].

Fridman, The Law of Contract, p. 5 [para. 35].

Waddams, S.M., Products Liability (2nd Ed.), pp. 142-152, 249-252 [para. 38].

Counsel:

Richard Lourensse, for the appellant;

Michael E. Bowlin, for the respondent.

This appeal was heard before HUGHES, C.J.N.B., LA FOREST and ANGERS, JJ.A., of the New Brunswick Court of Appeal. The decision of the Court of Appeal was delivered by LA FOREST, J.A., on January 21, 1983.