A CURIOUS CASE

Hawke's Bay Tribune, Volume XIX, Issue 281, 12 November 1929, Page 5

A CURIOUS CASE

PIANO SEIZED FOR RENT BUT OWNED UNDER HIRE PURCHASE AGREEMENT. WHO DOES THE INSTRUMENT BELONG TO? The seizing of a piano for rent accounted for an unusual and interesting case at the Napier Magistrate’s Court this morning, when John Court, Ltd., of Auckland, sought to recover the sum of £72 9/9 from Messrs Hillen and Howard, contractors, of Hastings. The plaintiff claimed that the piano was hired to a tenant of the defendant company and the latter seized it for rent. Evidence was given to show that the piano was never actually sold, while counsel submitted that under the New Zealand law a landlord could seize only property belonging to the tenant and not simply goods found on the premises. Mr. H. B. Lusk appeared for the plaintiff company, and the defendant company was represented by Mr. M. R. Grant.

Mr. Lusk, in outlining the case for the plaintiff company, stated that the action, although somewhat uncommon, was clear and concise. The plaintiff company was requested by a Mr. Keen to supply a piano under the deferred payment system of hire purchase. The piano was duly, forwarded and also a hire purchase agreement, which Keen failed to sign and return. On March 25 the defendant company seized the piano for rent and sold it in April by public auction. Counsel submitted that the proper procedure in law was fully carried out in regard to tho form of distress. All that was the right to seize the piano. Under the Act nothing could be seized except the actual property of the-tenant. Those who seize other people’s goods did so at their own peril, no matter how hard the circumstances. In England, a landlord was entitled to seize for rent any property found on the premises, but such was not the case under New Zealand law. The only question in this case was whether the piano was the property of the tenant or of the plaintiff company. HOW THE PIANO WAS SUPPLIED. Counsel then read a letter from Keen to the plaintiff company asking them to forward a piano valued at 59 guineas, and if satisfactory, after seven days he would purchase it under the company’s hire-purchase system. This piano was not in stock but another instrument priced 69 guineas was forwarded. The hirepurchase agreement was forwarded, but no reply was received. The company wired to Keen to complete the agreement immediately, and on the same day the piano was seized. Keen had since left the town and had not" been traced. No result of his trial of the piano was signified by Keen, nor was the piano at any time sold to him. Counsel submitted that in the event of his contention being wrong the question still arose of whether there had been a sale. An agreement for sale only became a sale when the conditions had been fulfilled. It was clear from the correspondence and terms upon which the piano was forwarded to Keen that no agreement had been entered into.

EVIDENCE FOR PLAINTIFF.

Claude Betrand, representing the plaintiff company, after referring to the forwarding of the piano to Keen, stated that he had no knowledge that the piano had been seized. When advice was received from the Post and Telegraph Department that a wire had not been delivered enquiries were instituted to locate the piano. To Mr. Grant: Keen did not sign any hire purchase agreement. His was the only firm in New Zealand handling that make of piano. He did not know that Keen had endeavoured to exchange the piano but had heard that he had tried to sell it.

Mr. Grant: Is it your custom to deliver goods to people who you know nothing about?

Witness: If the opposition do it we are obliged to. We regard 99 per cent, of people as honest and this was our first case in which an agreement had not been signed or the instrument returned. Mr. Grant, for the defence, submitted that he had been unable to find a case parallel in fact to assist the Court in its decision. The Court was asked to hold that the corespondence gave a security to plaintiff company. It was either a sale or not a sale.

His Worship: Your contention is that it was a sale?

Mr. Grant: Exactly. Mr. Grant submitted that where goods were delivered on approval on similar terms a sale was made. Keen got the piano solely for the purpose of working a fraud on John Court, Ltd., he considered.

His Worship: I would say, for the purpos eof paying his rent. Continuing, Mr. Grant stated that on March 8 Keen received the piano but on March 12 he put advertisements in the “H.B. Tribune” offering the piano for sale, quoting it at £4O.

AUTHORITIES QUOTED.

Mr. Grant, quoting from the Sale of Goods Act, submitted that failure to return goods on trial after a specified time constituted a sale absolute. His contention was that the piano became a sale after the seven days had lapsed. Since that date, if tho plaintiff company had not the hire purchase agreement signed they had lost control of the goods. Without that document they had no security over tho goods. An option to buy did not become a sale, but an agreement did. A further authority held that an agreement to buy plus delivery constituted a transfer on the goods. Mr. Grant, in referring to the correspondence, held that Keen’s letter was an offer, and John Court Ltd. I reply was a counter offer. With the exception of two telegrams tho plaintiff company did not take any active part to recover the piano. Godfrey Basil Aniycs, solicitor, of Napier, who acted for the defendant company, stated that twenty-four days lapsed between the seizure and sale of the piano, which was sold for £24. Mr. Lusk: A nice sacrifice. .(Continued on foot of next oobSSSi

Mr. Grant: And Keen offered it for £4O in the “Tribune.” Mr. Lusk submitted that all authorities quoted by Mr. Grant had reference to contracts of sale or return, but he submitted that no sale was ever intended at all. It was true that, he was to have seven days’ trial. It was extraordinary that a landlord should seize a valuable piano when there was nothing else in the house and regard it as being tho property of the tenant. Decision was reserved.