Appeal Against a Magistrate's Decision

Manawatu Times, Volume LIX, Issue 7460, 10 May 1934, Page 8

Appeal Against a Magistrate's Decision

SUPREME COURT MAXES DECISION.

An appeal against a decision ot the Magistrate at Palmerston North (Mr. J, L. Stout, S.M.) was heard in the Supreme Court at Palmerston North yesterday, and was dismissed by the Hon. Mr. Justice Fair. The case was one in which F. 11. McDowall, research chemist, arid his wife, Mrs. L. G. McDowall, having a separate estate, were the appellants, and Justice and Edmunds, motor engineers, wero the respondents. It was an appeal on a point of law from the determination of the Palmerston North Magistrate's Court following an action in which the plaintiffs had claimed to recover from the defendants and the separate estate of L. G. McDowall £3O, being the balance on the purchaso of a motor-car on October 3, 1932, and £lO 4s, the balance due for repairs. The case was heard in the Lower Court on November 21 last year, and the Magistrate then gave judgment in favour of the respondents for £43 10s and £6'lls in costs. It had been stated that appellants had agreed to purchase, the car in October, 1932, end had been allowed £IOO on another vehicle) They had paid £OO on delivery for the car concerned ,aml had agreed to pay £7O more when new pistons wero fitted and the £3O balanco in threo months, provided that the oil consumption did not exceed three pints per thousand miles. It had been claimed that the oil consumption had been excessive, but respondents had declared that they had had no opportunity of rectifying the fault. The lespondents had pointed out during the proceedings that this fault could haie been corrected for £2 Bs, and the Magistrate had accepted this statement. Mr. H. Pi. Cooper appeared for the appellants yesterday, and Mr. A. M. Ungley for the respondents. Mr. Cooper explained the position, and said that, although there were two claims, the only question in dispute was that for the balance alleged to be owing on the car. At the time of pmrchase it had been known that the ml consumption was excessive, but it had also been understood that new pistons wero to bo litted. A.t that time the stons wero understood to be on their way to New Zealand from the manufacturers, and payment was to be made when the fitting was completed. The balance of money owing was then to be paid within three months, on condition that the oil consumption was satisfactory. Counsel submitted that there had not been any need to keep running the car into the garago for repair work. The motor experts had taken the risk that the fitting of pistons would stop the excessive oil consumption, but had failed. His Honour poiuted out at this stage that the memorandum did not seem to support this contention. The whole appeal depended on tie terms of the memorandum - ,, continued Air. Cooper. The best that could be said in favour of the respondents was that after the pistons had been fitted they had taken the risk that excessive oil consumption would be checked. His Honour stated that it would not be necessary to call on Mr.. Ongley. The appeal would have, to be dismissed. The Magistrate had correctly held that the terms of ' the contract had been broken by appellants. The pistons bad been fitted, but, when this had failed to correct the fault, the respondents should have been given the opportuinty wi the. specified time to rectify the excessive oil consumption. It had been thought .that the new pistons would have corrected the fault, but this and not proved effective, and the .ospondents had not been given the opportunity to make further adjustments The appeal would be dismissed and £5 5s costs allowed respondents.