SALE OF A CAR

Hawke's Bay Tribune, Volume XVIII, Issue 53, 14 February 1928, Page 5

SALE OF A CAR

CLAIM FOR ALLEGED PROFITS A NAPIER CASE. LENGTHY EVIDENCE. The attention of Mr. J. G. L. Hewitt, S.M., was occupied at the Napier Court to-day when Stella Margaret Anderson (Mr. H. B. Lusk) claimed from Anderson and Hanson, garage properitors (Mr. J. Mason) the sum of £43 11/6, being alleged profits from the sale of an Essex car which plaintiffs alleged the defendants had agreed to pay to her. Stella Margaret Anderson, wife ot Robert D. Anderson, plaintiff, in evidence, stated that in May last she decided to purchase an Essex car for £230, for which £7O was paid in cash while instalments of £9 19/1 were to be paid monthly. At the time of purpose she signed promissory notes which were to fall due monthly. In consequence of a financial difficulty that the family sustained, she saw Mr. Anderson, telling him that she wanted to realise what money she could on the car. Anderson stated that he would do what he could and would instruct a salesman to concentrate his effoits on the car. After going through the account, for which money was owing for benzine, Anderson said that sue would get about £4B out of it. Anderson later sent round a transfer, which she signed. Witness then rang Anderson, asking what he would allow her on it. He then said that he would not allow her anything as her husband had borrowed money from him. Witness later saw him, but he would not alter his.decision. She told him that the car was in her name and had nothing to do with her husband. His Worship: When the transfer was brought for you to sign did they tell you what the car was sold for?— No, just that the car was sold. Did not Anderson tell you?—No, I found' out by going to the purchaser. To Mr. Mason: The transfer that she spoke of was in connection with the registration of the car, which would be about three weeks after she took it in. Her husband was paying the bills to the defendant company. She remembered Anderson having gone to America, but did not know that on his return her husband had seen him, telling him that he could not keep up the payments. Mr. Lusk: What has this to do with it? Mr. Mason: A great deal, as you will see. NOT RETURNED. Witness further stated that the car was not returned because of her husband’s financial position. She took it back to be sold on September 5. The first payment was made on June 8. Continuing, witness -s«el that she had not been interested in the promissory notes. The car was to become hers provided payments were made. Mr. Mason: You took no steps to make the payment in September when it fell due?—l expected Anderson to left me know when it fell due. Did you know that your husband had asked Anderson to assist him?— No. When you interviewed Anderson after the car was sold didn’t he tell you that he intended to use any balance to meet moneys owing to him bv your husband?-—He said something like that. Didn’t he say that he would do that in order to help you and your children ?—No. Tn reply to His Worship, Mr. Mason stated that if would bo shown that the plaintiff never owned the car. The defendant had no intention of selling the car on her behalf. “I WANTED THE MONEY.” Mr. Mason: Assuming there was any balance, why did you think that you were entitled to is?—Because the car was mine and 1 wanted the money. When you brought .the car in didn’t Anderson say, "iou want to be free from further liability?” and you replied, “Oh, yes, 1 can’t go on?”— Those words are not true; they were never spoken. Mr. Lusk; Did Anderson ever sfly that he took the car because the bill on September 8 was riot paid? Witness: I never heard anything about it. Walter Forsythe, insurance agent, deposed having purchased the Essex car for £2lO. Witness asked Anderson it he would trade in a Ford car, but he said that he could not do that as he was selling the car on behalf of a client. Witness offered £2OO, when the defendant said that he would have .to submit it to Mrs. Anderson. He completed the purchase of the car on October 6, paying in cash. To Mr. Mason: Witness stated that in purchasing the car the defendant was the person with whom he had most of the interviews. He was quite clear that the plaintiff (Mrs. Anderson) was the owner of the car to whom all offers had to be submitted. NON-SUIT APPLIED FOR. Mr Mason submitted that the plaintiff should be non-suited. A contract had been entered into by the parties and until completed the chattels m question did not. become the propel ty of the plaintiff. It seemed to him to be something new in law for the party at fault to come to the court to claim benefit under the contract. No proof had been given that the con tract had bee a varied. . His Worship: If the detcndiint un dertook to give time, and did give it regarding tbo payment of the bill no consideration was necessary. Mr Mason pointed out that, there was nut always a ready sale for sec-ond-hand cars. The dcfemlant company may have bad to wait indefinite ly for the payment of the bills. Ho snhmittoel that ns there had been a fault, the true owners wore- entitled to dispose of the ear as they liked. His Worship held that the car was nought, and sold under a time-pur-chase agreement. If an agent was asked how many ears he had sold dur Ing the wook bn might say eight, nnd yet strictly speaking he may not have sold any. The effect of the plaintiff’s evidence was‘that she could not carry on and that as the car might not bo sold in a hurry the defendants would waive the payment of bills until it wns sold and then there would lie a settling up. The contract seemed to be quite an ordinary one, and he did

not. fell disposed to non-suit the tenon at this stage. Mr Mason submitted that the defendant would rely strictly upon the agreement. B. D. Anderson, huebund of the plaintiff, was regarded as being the purchaser. Plaintiff'■ hueoand had gone to Anderson, manager of defendant company, stating that he was in urgent need of £2OO which was loaned to him in order to assist him and his' family. The evidence would show that only B. D, Anderson was recognised throughout. THE AGREEMENT. Haskell Anderson, managing direo tof or Henderson and Hansen, said that an agreement was made between the company and the plaintiff but the actual sale of the car was made so Mr R. D. anderson. Mr Lusk here objected to this statement Continuing, witness said that plaintiff paid £S(J and her husband £2O as a deposit, while promissory notes were given as a collateral security. The first three bills were paid, but the one falling on December Sth was dishonuured. Witness stated that he returned from America on August 30th. On Friday, September 2nd he met R. D. Anderson, when the fatter referred to his financial difficulty and told witness that he could not go on with the purchase of the ear, and further, that ho would tell Is wife (ths plaintiff) of the whole position on th* Bunday. On the Bunday evening the plaintiff 'phoned him telling him that, she could not go no with the pus* chase of the car. OFFERED ASSISTANCE. The next dav he came to see hia( at his office when he expressed sym, pathy for her husband’s position and offered assistance. He again stated that she wanted to dispose of the car quickly, when lie told her lie would see what he could do. In con* nection with the payment of bills, witness stated that he had always made it a rule that they were to be paid on due date. All through he had contended that it was plaintiff’s husband’s car and that sundry accounts had been in the name of R. D, Anderson. . During the discussion plaintiff said, “I don’t know why Doug, wants me to sign this.” She further stated, that she was helping to pay the initial deposit by getting £5O out of the Post Office. Two days later Mrs. Anderson came into the garage to borrow the car to go to Hastings and he let her have it. Witness stated that he had a number of interviews with plaintiff’s husband, after which he agreed to make arrangements to lend him £2OO to make good various shortages. In reply to witness regarding the paving back of the money, plaintiff’s husband said: ‘ ‘You keen any equity from the car and I will probably have £5O coming in a few days, which will further reduce it.” The plaintiff saw witness early in October when she asked about the proceeds from the car, when witness told her that she would receive « no proceeds as there was an arrangemen made in which the defendants were to have any equity in the car as part payment on a loan. Plaintiff then said: “There you are, Douglas is beating me again ” His Worship: She apparently knew of it but did not give her approval. Witness stated that the price of the car was finally settled with R. D. Anderson nnd he (witness) then decided to sell. Mr. Lusk: Did not Mrs Anderson ask you to sell the car on her behalf? —No. Did not yon tell her that she would &et about £4B?—No, I said there would be about that amount left. The car was brought bank because she could not go on with it, and I, out of gratitude, offered her assistance. I told her in my office. Mr. Lusk, that the car was here because there was a default on it. Mr. Lusk: No. you didn’t. Witness, however, protested that he did. His Worship stated that it would have to be shown that Mrs. Anderson bad consented to the arrangements; her just knowing it was not sufficient. His Worship (to Mr Mason): You had the right to rc-posscss the ear when the default came, and determine the agreement, and until you did so the agreement stood. I can’t see where any variation comes in. Mr Mason: She apparently did approve of it although she was annoved übout it. JUDGMENT FOR PLAINTIFF, His Worship: The plaintiff was o..iv the conditional owner, and vo:i agreed to sell the car lor a joint interest. The question now is. wli.it is to be done with the money? Now that the parties have quarrelled. ( think that the transaction should i.e put on a truly business footing, and that Mrs Anderson should pav the commission even if the defendant had said that he would not charge .t against her. The evidence, raid his Worship showed that the defendant had not in any wav tried to avoid the payment. An agreement was then reached, and judgment was given for th* •■laintiff for £23 3s lid. which was the amount of claim legs commission.