£300 AWARDED.

Gisborne Times, Volume LXVIII, Issue 10753, 26 November 1928, Page 3

£3OO AWARDED.

CLAIM OVER A , TRUCK

CHUNTER-CDAIM FAILS.

Fifitjiiiy ms i« % Supreme Qdurt Hii SSttlirtlay' in tfoe claito far £315 Me a iiiflfatf SiM® by Haltriolc and td:. WAl'intefari,- against 3nl H: MacDonald, of Gistrdrtfft Tbt heanti{s ‘ kvim? concluded with 6vrd &iiO& by defendant' M lib eountett-clann of £l9B for alleged brffaeh of W' ranty. in connection witii tli© yOniele, which, ho alleged, was defective ttikt gave‘constant tro-uMe. Mi*. F. C. Spratt, of Wellington, represented the plaintiffand Mr. G. J. Jeune the defendant. The last witness for the defence was John Miles, who drove the truck for live wfefikS; He first drove the veliifcSlh ,i;0 Wdirdki hi March. The lorry did, hot fiuix well on the trip dowii, and wduld Mr&lypull at all on the .return journey,- wnifeh Occupied six Hours; Oh the ntixi ttip f this tiifie* to' Napier, #iili a half-Ton lfisin. the Uirry Would hot pull, at ail,- &U<* he was ipiiitMl; % .numerous lorries on top gear, whM Ilis vehicle was in “low” and “second.” TdOrteen gallons of benzine and a gallon of oil were used on this trip, which occupied 16 hours. On the return journey tho lorry was nearly empty. It stopped" several times and heated up so much on top of Wharerata hill that if- cituttlit fire, and he had. to extinguish file Mines with his coat. The saiiih trOiilik was experienced every trip, arid dimtlUMh he took it to the garage whole' Die mechanics tinkered round with it, atid it ran all right there but was useless on the road. Rows on, the Gisborne garage mechanic, promised to travel to Napier with witness several times, but never did so. Once when the truck Wotlld not start, Rowson found the choke disconnected, but even when this was rectified the lorry would not climb Hospital Mill except in low gear. The truck Was. tried out over Barker’s Hill, but had to be changed down into low gear to negotiate the grade. There was no compression when the engine was hot. On trips witness -had been compelled to band over loads to other carriers ljecau.se lie was never sure the lorry would arrive at Its destination.

Counsel for plaintiff called Alfred John Dingle, formerly service manager for Hatrick and Co.,' to give evidence in rebuttal. Ho refuted the suggestion that the truck was sold because the firm were going out of business, adding that no members of the staff were aware of this move until February. The truck was landed _ and assembled in Wellington and driven to Wanganui. He bad no know'edge of the patched inner tube and could not explain its presence. He had first received a complaint by letter from MacDonald, and later defendant's son interviewed him and related several troubles, but on leaving the latter gave witness the impression of being satisfied. He asserted lie- had driven the truck the day previously and was certain that it bad no inherent defect. Trucks of this type would only be at their best after 5,000 miles. The clutch extractor required no lubrication, and the wearing away of this part could only lie caused by continual use of the clutch by a driver driving with his foot on the clutch pedal. The truck bad been driven only from Wellington to Wanganui. before it went to Gisborne.

Delivering judgment, His Honor said that- the question to be' 1 decided was whether the truck was fit to carry goods on the roan tor whicn it was required. The defendant seemed to be under the impression the vehicle was assembled from spare parts, but this was jiot so, and he bad received what he bad Bargained for. a new truck. There was no ground- for complaint by defendant legally that the firm did not advise him the truck had been in -stock 14 ‘months, or that they were going out of business, and that no more particular models of this truck would be produced. The truck was new, and as it was proved that similar models would carry heavy loads, the presumption was, therefore, that this truck was also fit to cany goods. The defendant was asking the court to a low him the truck for nothing and, in addition, to grant him about £l3O damages which was unreasonable. Only four instances could he given of the truck having stopped, but in each case the mechanics were able to make the lorry run again. He was satisfied there was no inherent defect in the truck, and that plaintiff’s firm had hod no opportunity to ascertain the trouble and remedy it. He held that defendant had failed to prove there was any defect in the truck, or a. fault that would have stuck up a driver of ordinary experience and intelligence. Furthermore, the evidence was absolutely exaggerated. Judgment was entered for plaintiff for £3OO and interest at 7 per cent, for a month, and costs. Judgment on the counter-claim was also awarded to the plaintiffs with costs.