MOTOR LORRY CASE

New Zealand Times, Volume XL, Issue 9171, 11 October 1915, Page 3

MOTOR LORRY CASE

DEFENDANTS COMPLETELY EXONERATED. Judgment was given by Mr Justice Chapman at the Supreme Court on (Saturday iu the case o! Ernest Henry Spackman v. George William Woods and John Edward Fitzgerald. At the hearing Mr Perry appeared for the plaintiff. Mr iNeave lor the defendant Woods, and Mr itlair for the defendant Fitzgerald. The plaintiff, a carrier, purchased a motor lorry from the defendant Woods for A 650, the defendant Fitzgerald acting as agent for Woods in selling the lorry. The action was to set aside the contract on the ground that it was induced by certain false and fraudulent misrepresentations made by Fitzgerald in conducting the sale. T'ho trial lasted two days and i a largo amount of evidence was given on both sides- It was admitted, sard His Honour, that it was not sufficient to prove misrepresentations. They must be shown to be fraudulent, that was to say false to the knowledge of the party ' making them, or made recklessly by not caring whether they were true or not. It was admitted that the vehicle; was of a flrat-olass type and that it had no concealed defect. . The original subject of negotiation was an Argyll chassis, but when the sale was made it had had a body put on it which made it a motor lonw capable of i being used with temporary alteration - fori the carriage of passengers. Uno of the representations relied on was that the engine was a 33-horse-power engine. E.A.C. RATING OK BRAKE HORSEPOWER. It was a matter in dispute whether the representations referred to 3U or 33horse-power, < but the real dispute on this head was whether it was impliedly represented that the horse-power was to bo gauged according to what was called the Royal: Automobile Club's rating or to be based on the brakehorse power. It could scarcely bo disputed that the Royal Automobile Club's ■ rating was* an artificial standard. In the ‘‘Text Book on Motor-Car .Engineering,’’ by A- Graham Clark; (1911), the author stated that this rating was adopted as a convenient standard for making comparisons between various makers’ oars of different patterns taking part in competitions, and to enable the prospective owner to roughly estimate the relative vblne of the powers of cars he might happen to be considering. The author added; ‘‘With the improvement in materials of construction and methods of manufacture came higher piston speeds, higher compressions, and in some ; cases longer strokes, the result being : that the ; R.A.C., formula no longer, held good as a comparison. of power.” Plaintiff called . witnesses to prove that on a sale of a commercial motor a buyer would ordi-' narily understand that, its power was represented in accordance with this rating. Other witnesses disagreed with this, art# it was shown that there were other ratings in England. Certainly this rating was unknown 'in.; connection. ; with chassis of America make, many, of which were sold in New. Zealand. An illustrated Argyll catalogue which was put in exhibited: numerous classes. of vehicles,' but only in one instance, namely, that of street cabs, was the power professedly measured- according to E.A.C. rating, while in a catalogue of another* maker both brake-horse power and B-A.C. rating were referred His Honour added, that if he wore in a position to say that the plaintiff, who himself knew nothing about R.A.C. rating, contracted according to the rating, he certainly could not say that the defendants > were . conclusively proved to have done so. But ho was askedi to say more than that. “WOULD BE A VEIRY STRONG . THING.’’ The plaintiff undertook to prove that Fitzgeiald fraudulently represented the power ot the engine to be based upon R.A.C. rating. Fitzgerald, however, said that he always sold upon brakehorse power, in which case no misrepresentation was prpvcd, and His Honour saw no reason - doubt .that,, seeing chat it must be quite a common mode of selling- Fitzgerald did not suggest that he ever said so to the plaintiff, nor did the plaintiff suggest that R.A.Crating was : ever, mentioned; It would bo a very strong thing to 1 hold that a case of fraud could be made out in that way; -said, his Honour; and he held that it could not. _ • ’ The other misrepresentation relied on was that “the said chassis had a carrying power and capacity of .two tons and ten hundredweight.” A chassis was sold as such; and if that representation was made as to the chassis, the' purchaser- was not entitled to have; ft carry 2J- tons after he had put half a ton on it in the shape of a body. The question then was as to whether the lorry would carry two tons of loading at a fair' speed over ordinary hills; and it would require a very considerable’ discrepancy between the representation and the actual performance of the vehicle to make out a case of fraud. It was admitted to be a good all-round vehicle, but ; from some cause the inner surface of some of the cylinders had become* scored to an appreciable degree , and some power was thereby lost. The evidence as to what the vehicle could do was-: some what conflicting;' but ■ there was, said His Honour, quite enough evidence to enable him to say that the plaintiff had-: failed to make - out ..a charge of fraudulent. representation and to render it doubtful whether even unintentionally defendants had ipade any misrepresentation. “CHARGE OF FRAUD WHOLLY FAILED.” There was a further allegation that it was'represented “that two Lucassidelamps, one Lucas tail-lamp, and one Lucas horn would be supplied with .the said chassis at the said price,” but His Honour thought that - the. plaintiff was entirely mistaken about that-' Fitzgerald sold what he usually sold—a chassis or car, with certain ; appliances, and; His /Honour, saw no reason to think that a somewhat < casual conversation about lamps had resulted in either a representation, as alleged, or a warranty, - In this; as in several other matters.' the plaintiff had: either misunderstood what was said or had forgotten something. . _• ■ In conclusion, His Honour said that had' the action been one involving a decision as to the actual power of the engine :he would have had to discuss a good deal of very interesting technical evidence given by several witnesses. But he had not done so. as that would have been beside the real - issue, which was-whether a charge of fraud had been made out. His Honour found that the charge had not been made out, and said that, in justice to the defendant Fitzgerald, he must add that the charge had wholly failed. Judgment was given for the defendants, with costs as per scale to each defendant as if AJ2SO were in dispute: He further allowed each defendant a second day at AIO 10s and disbursements. Witnesses’ expenses were allowed and qualifying expenses to the defendant, who subpoenaed or - called them.