UNUSUAL CASE

Evening Post, Volume CXXVI, Issue 73, 23 September 1938, Page 11

UNUSUAL CASE

BREACH OF CONTRACT

PURCHASE OF AEROPLANE

A very unusual case, in which the plaintiff sought to recover £100 damages for the breach of an agreement for the sale of an aeroplane by him to the defendant, was heard recently in the Magistrate's Court before Mr. J. H. Luxfo#, S.M. In a reserved judgment, the verdict was delivered in favour of the plaintiff for the sum of £37 10s. Mr. G. C. Kent appeared for the plaintiff, Roy Grant, a motor driver, and Mr. T. G. Taylor represented the defendant, Eric F. G. Sharp, director of the Dominion School of Aeronautics, Lambton Quay. The contract for sale, dated July 30, 1937, provided that the purchase price should be £85, paid by instalments. These instalments had been paid. It was a term of the sale that, when a certificate of airworthiness was obtained for the aeroplane, the conditional purchaser agreed to allow the owner to use the machine for 50 hours' flying at no cost, and at times to be agreed upon, provided that the owner possessed the necessary licence. It was alleged by the plaintiff that the defendant had refused to procure a certificate of airworthiness for the machine, and had so deprived the plaintiff of 50 hours' flying, valued by the plaintiff at £100. "The evidence shows that the plaintiff wanted £255 for the plane, but eventually agreed to sell it at £85 j upon the defendant agreeing to allow him to use the machine for 50 hours' free flying and to give him a free course of instruction at the defendant's school of aeronautics," said the Magistrate in the course of the judgment. "The plaintiff was and still is the holder of an A licence, but could not qualify for a B licence until he had completed another 50 hours' flying. NOT AIRWORTHY. "At the time the sale was entered into, the defendant knew that a certificate of airworthiness could not be obtained for the aeroplane until extensive repairs and renovations had been carried out in accordance with a defective aircraft certificate issued by the Civil Aviation Branch of the Defence Department. Indeed, he had been in possession of the plane and the certificate for some months prior to the sale. The defendant has not carried out the required repairs and renovations because the cost would be too much. He has accordingly used ths machine for demonstration purposes at his school. "I am satisfied from the evidence that the plane is capable of being made airwor-thy to the satisfaction of the authorities, but that the defendant refuses to do so because of the cost. No doubt he is wise in not spending the money. However, the plaintiff has been deprived of the free flying provided for in the agreement. "In my opinion the agreement for free flying was collateral to the agreement for sale and purchase, and was made in consideration of the plaintiff agreeing to sell the aeroplane for £85. It imposed an obligation on the defendant to take the necessary steps to procure a certificate of airworthiness, and to carry out any repairs or renovations necessary for that purpose. He prepared the:.' agreement, and could have protected himself from , liability by limiting his obligation to expend more than a certain sum on repairs and renovations. But he did not do so, and I am unable to find that the large amount required to make the plane airworthy justifies his refusal to do the work. "The plaintiff has therefore been deprived of 50 hours' flying, the value of which I assess at 15s per hour. Judgment will therefore be entered for the plaintiff for £37 10s, together with the usual costs." _.