CLAIM FOR £402

Press, Volume LXXXVII, Issue 26512, 29 August 1951, Page 5

CLAIM FOR £402

CAR BOUGHT UNDER HIRE PURCHASE

MAGISTRATE RESERVES DECISION

A claim for £402 18s, between Norman James Forward, of Christchurch, car dealer, the plaintiff (Mr J. R. L. Campbell) and Edward Jaimes Paine, formerly of Auckland, but now of Christchurch, a salesman (Mr P. H. T. Alpers) and Thomas Archibald Felton, of Auckland, public accountant (Mr A. C. BrasSington), the defendants, was heard in the Magistrate’s Court yesterday. Mr Rex C. Abernethy, S.M., who was on the bench, reserved his decision.

The statement of claim said that Paine had sold the plaintiff a motorcar for £630, in November, 1950, without disclosing that he had purchased it from Hamilton Autos, Ltd., of Hamilton, under a conditional hire purchase agreement and that the sum of £502 18s was owing under the agreement, which had been, discounted with the Traders’ Finance Corporation, Auckland. Plaintiff had sold the car to Independent Motors (Hutt), Ltd., Wellington, and that firm had later sold it to Victor Jones, of Masterton. At the instigation of the corporation the car had been seized, upon the default of Paine and Jones to pay £502 18s, ths amount owing, to retain possession of it. Jones had now called on Independent Motors, which had in turn called on the defendant to pay the sum of £502 18s, and this the plaintiff was now obliged to do. Paine had paid to Felton the sum of £520 to be held in trust for the settlement of the balance of the money owing under the hire purchase agreement, the plaintiff claimed, and in March of this year Felton had informed the plaintiff and his solicitors that the sum of £520 was held on behalf of the plaintiff, or as the plaintiff should direct, to pay the balance owing under the agreement. The plaintiff had called on the defendants to pay the sum of £502 18s but they had paid only £lOO on account and declared their intention to interplead. Plaintiff's Evidence To Mr Campbell Nonman James Forward said that on or about November 4. 1950, he bought from Paine a car which he understood was owned by Paine, for £630. tie resold it to Independent Motors (Hutt), Ltd., Wellington, which in turn sold it to Victor Jones of Masterton. Later he had a telephone call from Hamilton Motors to say that the car still belonged to them under a conditional hire purchase agreement. He had since paid the full sum to Independent Motors, he ' said. He said that he saw Felton in court on or about April 5. He asked him about the money and Felton said that he had it and everything would be all right. “I then discovered that the money had been paid to' Mr Alpers. I did, however, receive from Mr Alpers £lOO towards the sum," said Forward. I To Mr Brassington Forward said that Felton had told him he had a letter of credit on a bank which he would clear in the lunch hour and the money would be paid over in the afternoon. “Felton did not say to whom the money was to be paid. ’ Mr Alpers: At the time of the transaction between you and Paine was there any mention of a hire purchase agreement?: No. The deal took place on a Saturday, and Paine was paid in cash. Paine did not leave his address with him. said Forward Ralph Patrick Thompson, a solicitor, of Christchurch, said that on February 28. 1951, Forward consulted him in connexion with the car which he had bought from Paine. “Mr Forward was present when the call was made to Felton, but he had left when I spoke to him," said witness. “As far as I can remember I asked Felton if he was acting for Paine and if he had telephoned Forward on the previous day, and he said it was the case, said the witness. “When I telephoned Mr Felton I wanted to make perfectly clear that the money was held in a trust account in Mr Forward’s name.” To Mr Campbell witness said that he telephoned Felton because he could not rely on Paine paying the money to Forward. "I would be satisfiea if the money was held in a trust account by Felton for Forward,” he said. “Having got that assurance I was satisfied.” , . , . , “The defence of Paine is that he had paid this money to Felton, the proceeds of the sale of the car, to pay off the hire purchase account,” said Mr Alpers. “So long as Felton said he held it on Paine’s own account that was not a payment to Forward, and it is submitted that Felton as Paine’s agent and with his authority subsequently made himself a trustee of that money for paying Forward; but that amounts to a payment by Paine to Forward which is a defence to these proceedings as against Paine,” said Mr Alpers. James Edward Paine, a salesman, said to Mr Alpers that he paid £250 from his own account to Hamilton Autos as a deposit on a car which he was to use to travel soliciting orders for prefabricated houses in rural areas. He had entered into business with Felton and had made plans with him to form a company known as Rural Construction Housing Agency. The car was to be bought in his own name, but eventually taken on by the company when it was formed and registered. said the witness. Felton was present when he collected the money from the bank and Went with him when he got the car. The monthly instalments on the car of £37 10s were to be paid by Felton until such time as the company was farmed The original price of the car was £675. The car proved unsatisfactory, and on Saturday. November 6. he sold it to Forward for £630. The existence of a hire purchase agreement was never mentioned, said Paine. “To protect myself and the firm, not knowing Mr Forward, on the following Monday I paid to my accountant £520, sufficient to nay off the hire purchase.’’ said the witness. “I told Felton the reason and asked him to complete the arrangement, and he said to leave everything to him.” To Mr Brassington the witness said that he had no communication with anyone. Felton had taken the matter out of his hands. After the hearing of evidence counsel advanced legal argument.