£7,000 CLAIM

Evening Star, Issue 20023, 14 November 1928, Page 6

£7,000 CLAIM

ACTION AGAINST DUNEDIH FIRM" ALLEGED BREACH OF COHTRACT ALTERNATIVE ALLEGATION OF FRAUD A claim for £7,000 for breach of contract was heard to-day in the Supreme Court by His Honour Mr Justice MacGregor. Tho plaintiffs were Wolby Earle Fisher, medical practitioner, Tnuraarumii and Circulators, Ltd., carrying on business as manufacturers of waterheating apparatus at Auckland ami elsewhere, and the defendants were Messrs G. Methven and Co., Lid., engineer and brassfounders, Dunedin. Mr F. L. G. West, of Auckland, with him Mr J. A. Gordon, of Taumaruuui, appeared for the plaintiffs, and Mr J. 13. Callan, with him Mr A. G. Neill, for the defendant company. Tho statement of claim set out that, to the order of the plaintiff company, the defendant* had from time to time from September, 1924, to May, 192 G, manufactured and sold to the plaintiff' company and others approximately 300 Fisher twin circulators, represented to be made in accordance with the specifications of the letters patent of the patentee, Raymond Royfe Fisher, in all the above circulators (except approximately the first twelve manufactured) the"defendant company, without the knowledge or consent of the patentee or the plaintiff company, and in breach of a contract to manufacture, caused a small hole to be bored through the interior copper circulating pipe opposite tho cold water inlet pipe in each circulator, thus nullifying the action of the inventor’s contrivance for rotation of water heating, and rendering the circulators ineffective and inefficient and greatly depreciating their value. In consequence of the alleged breach of the agreement it was claimed the plaintiffs had suffered heavy loss and damage, including the cost of rectification of the cylinders, loss of trade, and had further been prevented from disposing of their overseas rights, and had and may become liable to purchasers. Plaintiffs asked judgment for a declaration that the defendant company was bound to indemnify the plaintiff against all liability incurred by reason of the replacement of circulators supplied by tho defendant and resold by the -plaintiff or arising out of the resale; for £2,000 for special damages for the loss in tho value of tho overseas rights in the letters patent, and tho invention; for £5,000 general damages; for the cost of the action; and for such other relief as the court thought fit. f)i opening the case, Mr West said the contractual relations between tho companies began in 1924, and continued till 192 G. A name which would bo frequently mentioned in the case was that of Raymond Boyle Fisher, who was the original patentee of the invention. Learned counsel went on to describe the essential features of the Fisher twin circulator. It consisted of two circulators, of fifteen gallons each, connected by two pipes. An important feature was that tho hot water was drawn off from the top portion of the bottom circulator. In this way it was enabled to get hot water more quickly, and to get a quicker recovery of hot water than if there was a single cylinder. In 1924 the patentee entered into negotiations with the defendant company for the commercial exploitation of the invention, Messrs Methven ami Company having a good sales organisation. Tho complaint was that Methven and Company failed to manufacture according to design. lie defence was apparently to bo that the holes wore authorised iu some way o’ May, 1925. It was not suggested that Mr 11, R, Fisher, who was responsible for the idea, authorised tho holes, but that they were authorised by a telephone message from tho secretary ot tho company at Timaru. Mr lusher sanctioned some experimenting, but it was admitted that he was not miormed of the insertion of the holes m tuo tubes. It was in November, 1927, that Mr Fisher first discovered the hole. Mr West; “It is suggested that Mr Fisher authorised any alterations union Metlivons might care to make. ~ ■ Ah-Callan: “That is it, exactly. After Mr West had further detailw his case. His Honour asked il counsel had said it was not necessary to prove Mr’West'said that fraudulent representation was an alternative cmim to that of breach of contract. His Honour said that d "hat A 1 West had been stating was proved it was fraud, and nothing else. . Mr West: “Undoubtedly, sir. Bit it would still as a matter of law be broach of contract.” Evidence was then called lor the plaintiffs. . .. ~ „ Albert Bills, who was lonncili a foreman coppersmith at Methven s, said he Jcft the company’s employment in 1926. Ho had something to do with the experimenting with tho h islicr tu in circulators, some of which uerc made with holes through the inner tubes and some without the holes. Witness uas instructed by Mr J- A. Brown to hope the holes, and asked at the tunc if they would improve the cylinders. A i Brown mumbled something and went away. Air Brown came back next day and again told him to make the holes, which he had drilled. Mr Brown told him to have the pipes turficd round so that the holes could not be seen Horn the cold water inlet. W'dness was told that when the pines were put in the cylinders, and beioro the eoveis ucio put on, they wore to be covered by a sack Till ho left Dunedin in 192 uhe made a lot of holes in pipes. Witness explained that he went back to Mot iven’s for a while, and later was working on the ground of the Forbury School. A man named Couly, lorcinim at Methven's, came to see witness during tho dinner hour, and said: i thought 1 would tell you between you and mo there is a few hundred pounds’ ‘ hush money ’ for you.” Winess replied: “Who is going to give me a few hundred pounds’ ‘hush money . Couly repeated his statement, and witness‘replied that he was going to speak tho truth. Couly did not say any more, but walked away with his head down. . , , To Air Callan; Tho cylinders worked all right at demonstrations before the holes were bored. The one which came from Auckland and which did not do well had no holes in the pipes. Jt was not as strong as the ones made at Methven’s. The case was adjourned till this niternoon.