Wilkinson v. Volk and Robinson, (1981) 14 Man.R.(2d) 31 (CoCt)

CourtProvincial Court of Manitoba (Canada)
Case DateSeptember 18, 1981
JurisdictionManitoba
Citations(1981), 14 Man.R.(2d) 31 (CoCt)

Wilkinson v. Volk (1981), 14 Man.R.(2d) 31 (CoCt)

MLB headnote and full text

Wilkinson v. Volk (defendant) and Robinson (third party)

Indexed As: Wilkinson v. Volk and Robinson

Manitoba County Court

Ferg, C.C.J.

September 18, 1981.

Summary:

An auctioneer sued the purchaser of an item at auction for the balance of the purchase price and for storage charges for the item, which was returned by the purchaser. The purchaser claimed that the auctioneer deceitfully, fraudulently or innocently misrepresented the state of repair of the item and that the item was not fit for its intended purpose, contrary to the Sale of Goods Act, R.S.M. 1970, c. S-10. The purchaser sought to rescind the contract and claimed damages for repairs to the item and for lost time. The auctioneer joined the owner of the goods as a third party.

The Manitoba County Court allowed the auctioneer's action for the purchase price but not for the storage charges; the purchaser's counterclaim and the claim against the third party by the auctioneer were dismissed.

Sale of Goods - Topic 4404

Conditions and warranties - Exclusion of warranties - Caveat emptor - When applicable - The Manitoba Court of Queen's Bench held that the doctrine of caveat emptor applied to every sale at an auction, unless there were actual fraudulent and intentionally deceitful representations about quality and fitness made by the auctioneer, which might entitle the purchaser to rescission - See paragraphs 11 to 13.

Sale of Goods - Topic 4068

Conditions and warranties - Warranties - Disclaimer - "As is" clause - A purchaser at an auction was given a bidding card before the auction, one side containing a liability exemption clause and a notice respecting storage charges - The Manitoba Court of Queen's Bench stated that the auctioneers could not rely on the clauses either to exempt them from liability or as a basis for claiming storage charges, where the clauses were not brought to the purchaser's attention, the auctioneer failed to refer to them and no signs to that effect were posted - See paragraphs 15 to 19.

Sale of Goods - Topic 6503

Breach - Remedies of buyer - Damages - General - The Manitoba Court of Queen's Bench stated that even if an auctioneer's statements concerning the condition of the goods were a condition of the contract of sale, once the purchaser at the auction paid for and accepted the goods, the purchaser was only entitled to damages, rather than rescission, for a breach of the condition - Sale of Goods Act, R.S.M. 1970, c. S-10 - See paragraph 14.

Cases Noticed:

Shapiro v. Banque Canadienne Nationale et al., [1981] 4 W.W.R. 560, appld. [para. 13].

Montreal Trust Company v. Canadian Pacific Airlines Ltd. (1977), 12 N.R. 408; 72 D.L.R.(3d) 257 (S.C.C.), refd to. [para. 17].

Ludecke v. Canadian Pacific Airlines Ltd. (1979), 26 N.R. 302; 98 D.L.R.(3d) 52 (S.C.C.), refd to. [para. 17].

Kalmer v. Greyhound Lines of Canada Ltd. (1980), 105 D.L.R.(3d) 663 (Alta. Q.B.), refd to. [para. 17].

Willis v. F.M.C. Machinery and Chemicals Ltd. (1976), 68 D.L.R.(3d) 127, refd to. [para. 17].

Statutes Noticed:

Sale of Goods Act, R.S.M. 1970, c. S-10, sect. 13(3) [para. 14]; sect. 16 [paras. 9, 11, 20].

Counsel:

R. Smith, for plaintiff;

A. Aitken, for defendant;

R. Holmes, for the third party.

This action was heard before FERG, C.C.J., of the Manitoba County Court. The decision of FERG, C.C.J., was delivered at Brandon, Manitoba, on September 18, 1981:

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT