WESTPORT COURT NEWS

Grey River Argus, 13 October 1922, Page 7

WESTPORT COURT NEWS

I A CONTRACTING DISPUTE. i GRIFFITHS v. FLETCHER. (Our Own Correspondent.) The following reserved judgment was given at the Magistrate’s Court on Tuesday morning by Mr T. E. Maunsell, S.M. The plaintiff claims the sum of £l5O 5/3 for goods sold ami delivered, the statement of claim comprising 24 items. Only some are in dispute. The principal defence offered is a denial of delivery. The burden of proving delivery is on the plaintiff, and he is in an unfortunate position in that much of the business was done by one man, Dunn, who was at the time in his employ as manager. The plaintiff, in fact, has had to rely largely on his ledger. Mr Reeves points out that under the Sale of Goods Act the place of delivery is prima facie the seller’s place of business. Even assuming there is nothing in the evidence to imply a contrary intention, the seller must, nevertheless, prove delivery to the buyer. That being*so, the evidence for the defence must be accepted on the subject of non-delivery. During the hearing, reduction in four items was agreed on as follows:— Item 5, 6 shafts 4ft 7in x 3in, £l2, reduced to £6 18/-. Item 6, 12 15in groove wheels, £lB, reduced to £l5. Item 10, 1 tipler, £lO 7/6, reduced to £lO. Item 20, key, 5/9. Total reduction, £8 15/3. On the other hand, item No. 1, brake wheel, was increased by £3. The claim, with this alteration, is £144 10/-. Passing now to the items in dispute: Item 1, 4 bearings 3in bore, £lO. Defence, delivery of two only, defence upheld, reduction accordingly, £5. Item 2, 4 groove wheels 3ft 3in, £2O; defence, two cancelled by consent of Dunn, two only delivered. Defence upheld, reduction £lO. Item 4, 1 shaft 4ft Gin x 3in. Defence, order cancelled with consent of Dunn and not delivered. Defence upheld; reduction £3 9/-. Item 7, 12 2ft bearings £l3 10/-. Defence quotation as per exhibit “A” at £9. Under cross-examination, defendant says, “I don’t remember altering specification from Gin to Sin.’’ He admits alterations did occur. Plaintiff says definitely an alteration was made, and so I. find accordingly, which sets the quotation at large. Plaintiff says £l3 10/- is a fair and reasonable charge, and I find accordingly. Item 16, rope wheel; £1 17/6. Defence never ordered or received. Defence upheld, and item struck out. Reduction £1 17/6. Item 19, bolt screwed whole length 4/6. Upon considering the evidence, I allow this item. Item 21, sludge pump with clack £1 12/6. Defence, not delivered, being rejected at foundry as unsuitable. Defence upheld. Reduction £1 12/6. Item 24, boring bit screwed to fit socket, £1 12/6. Defence, defective and useless. Defence not upheld. The plaintiff’s claim, as varied and settled during the hearing at £144 10/-. -.. i..i... rm in '

is reduced by £2l 19/-. Judgment will be entered for the plaintiff for £122 11/-. As regards costs, a confession was filed for the sum of £96 10/-, being part of the amount claimed. The details were stated to be shown in a statement annexed. No statement in fact was annexed. The confession was accordingly irregular, and plaintiff will receive costs as per scale on the total amount, recovered. Court costs, witnesses’ expenses and solicitor’s fee amounted to £23 3/3. GRIFFITHS v. FLETCHER. (Counterclaim.) The defendant counterclaims for the sum of £367, abandoning £167 as being in excess of the Court's jurisdiction. He makes a general allegation that the machinery and plant supplied by the plaintiff was defective, and then sets out the details specifically under seven headings, assessing the damages alleged to be sustained under each heading. I will deal with these in order. (a) The allegation is that the key and key-way on a wheel and shaft did not coincide, necessitating the expense of four men's wages at £1 per day for two days. The key was made by plaintiff’s manager, Dunn, who was not a witness, having left the district. I must accept the evidence of Fletcher and Williams as to the defect. With regard to damages, it is observed, in the first place, that, except in the case of the defendant, who was one of the four men employed, they were unskilled labourers. It should have been proved not only that £1 per day was paid these men, but that £1 per day was a fair and reasonable charge.. No evidence to this effect was given. The defendant, therefore, ean only recover what, in-the opinion of the Court, would be a fair wage for unskilled labourers. It is a matter of notoriety that £1 per day is exceptionally high for unskilled labour, especially during the present depression. In the absence of evidence, I. shall fix the wage at 14/- per day in respect of this item, and also items (b), (d) and (e). £1 per day, however, is a fair wage for defendant himself. Then again, with regard to the delay caused through defects, as Mr Reeves points out, the plaintiff is unable to contradict defendant as to the time taken by his employees. I prefer to look at all the evidence, and arrive, as nearly as possible, at what would be a reasonable time. As to this item, there is a very wide discrepancy in the evidence as to how soon the defect could be remedied. I will fix it at one day. The amount recoverable, accordingly, is £3 2/.

(b) I find the allegation proved tha the fly-wheel was delivered without j key fitted. Wages for four men for tw : days are claimed, the reason beiiq delay in delivery. I am satisfied tha the reason for the absence of the ke; [ was that defendant wanted the whee [in a hurry. Cox’s evidence was tha ' the wheel could be put into positioi ’ pending arrival of the key, which, ac cording to the defendant’s evidence j had to be specially constructed. I firn. I there was some delay caused, but I an | not satisfied that it necessitated foui I men being idle for two days. Defeu I dant is allowed £2. ; (c) Fletcher’s evidence is uncontra i dieted, and the amount claimed, £2 • must bo allowed. I (d) Two defectively made 15in wheels alleged to have collapsed. It is denied by plaintiff that two wheels were defective but his evidence is, that, when defendant was in his foundry he • (plaintiff) told him that these two were i defective, but defendant agreed to acI copt them. Defendant, on the other , hand, denies that he know any of the I wheels were defective, and says that the defects in the wheel produced were so unnoticcablo that he actually put it I where it was subject to most strain in the plant. The question is somewhat difficult to decide, as plaintiff's evidence is corroborated by the witness Champion. On the other hand, it seems most extraordinary that a skilled and experienced engineer should agree to accept two defective wheels without any reduction in price, and without inspecting the wheels or inquiring as to the nature of the defects. The burden of proving he did so, is on the plaintiff, and, while not reflecting on either his testimony or that of Champion, I prefer to believe that the plaintiff was mistaken. I also find, as a fact, that the true extent of the defects was not noticeable to the buyer. Defendant is entitled to recover the cost of two new wheels as stated, viz., £6, and a reasonable sum for dismantling and reerection. For the latter he says he plain £l2, but does not explain how it came to be so much. Mr Tomkies, a witness for defendant, says three, or four men could do the work in a day. Williams, also defendant’s witness, says two days. He speaks of a double dismantling that was required, which would increase it to four days, but this is too remote to be considered. Allow ing wages fixed as above stated, 1 fix the amount at £6 4/-. (e) I find, as a fact, that the wheels, shafts, and bearings were not marked and differed slightly in size; also, that the proper practice is to mark them. Accordingly this caused delay in assembling. Defendant also proved that one wheel and one herring had to be returned for re-boring. As to whether they had to be returned a second time because they were not enlarged pursuant to his instructions, it is unnecessary for me to decide, as, assuming it to be the case, the man who took them to the foundry was not called as a witness, and accordingly there was no evidence that plaintiff received the instructions from this man which defendant told him to give. This, therefore, cannot be taken into account, and the damages are accordingly reduced. Further defendant Says it cost him £l.B in wages, but gives no details. I think, from Tomkies’s evidence, that the effecting of repairs could have been expedited. I will allow three days for four men, including defendant. Total, £9 6/-. (f) Claim for £65 (reduced to £32 during the hearing) for loss of profits. 1 understand this claim to be based upon the delay arising from the abovementioned defects and errors causing defendant, delay in his commencement to win coal, although his evidence is very short, and related only to the defective wheels. All he says is “Tim wheels stopped us for eight days. For the first eight days when we did start our output was 20 tons a day—not 40 tons as mentioned in the claim.’’ IL' explains that the 4/- was profit clear of wages and expenses, but gave no evidence of the loss of any contracts or sales, nor whether there was a market for the coal. In my opinion, this claim must fail both in fact and in In the first place the delay did not cause the defendant to lose any coal. The coal he would have won was still there at the end of the eight days. All that occurred was that there was a loss in winning it for eight days, and he was deprived of the use of money for that period. The learned author of Mayne on Damages appears to indicate that in such a case the measure of damages would be interest on the* amount involved for the eight days, which would be a trifling sum. Secondly, I agree with Mr Reeves that the damages would be too remote, and that the case he quoted, Watson v. Gray, 16 T.L.R. 308, is directly in point. As Kennedy, said in that case, such a claim would introduce ail sorts of questions. It is purely speculative, and could not be said to have been within the contemplation of the parties. Such intervening causes as bad weather, strikes, illness, etc., may have arisen. I also think the claim is not within the rules laid down in the well-known leading case, Hadley v. Baxendale. That was a claim against a common carrier, but the authorities show that the principle established applies to all classes of contracts. Passing now to the last item, in which the defendant claims £25 damages for loss sustained through one wheel proving defective, necessitating replacement. During defendant’s evidence, I was asked to amend this so as to make the claim apply to six wheels instead of one. I understood Mr Reeves consented, and I accordingly made the amendment, but at the adjourned hearing Mr Reeves stated he did not consent and was unaware that I had made the amendment. He then

objected to it. The question arise therefore, whether 1 could amend will out plaintiff’s consent, which depend on whether the amendment would ii troduee a new cause of a< tion. Upon referring to the evidence o the defendant, 1 find that, even a amended, the claim is at variance wit the evidence which is as follows:“After we got the macdiincry the wheels and the bulk of the 2in beai ings began to show defects. ’ Afte referring to details, defendant said i became necessary to replace the whol gear, including the wheels, shafts, an bearings, which cost in wages alone th sum of £250. I it is quite clea ■ that this discloses deferent cause o faction to that disclosed in the clain i and that I have no jurisdiction t | amend the. claim, which must remain a I filed. It is, accordingly, impossible t I assess any damages which may hav I' been sustained by the one wheel, and a to this item the defendant is non-suitei Judgment is given for defendant f £2B 12/-, and costs. Court costs, et( in this case amounted to £ll 11/4.