SALE CF MOTOR-OAR

New Zealand Times, Volume L, Issue 11650, 15 October 1923, Page 3

SALE CF MOTOR-OAR

AN INTERESTING POINT JUDGE ON PURCHASER'S RIGHT OP REJECTION. PERIOD AND CONDITION. Mi Justice Salmond delivered liis judgment on Saturday with reference to ' lie claim of Lionel John Taylor, chemist, against the Combined Buyers, Ltd., defendants, concerning a. dispute with »e~ gard to the purchase of a Galthorpe oar. It was submitted on behalf of Tie plaintiff that the car was not new, .nu had had considerable use, before it oamo into his possession. HIS HONOUR’S JUDGMENT In the course of his judgment, Mr Justice Salmond held that it was now too late for the plaintiff to reject the car. but that he was entitled to recover damages The measure of damages was the difference between the value of the* cur as it actually lvis at the date of purchase and the value which it would have possessed had it actually conformed to tbs warranty <f fitness and merchantab 1 © quality. Th) plaintiff purchased from the defendant company a Calthorpe motor-cur and sought rescission or damages on the ground of fraudulent misrepresentation, or alternatively on the ground of breach of the implied st.-.tutory conditions of merchantable qua’ity and of reasonaole fitness for the purpose for which the car was bought. At the close of the trial His Honour indicated the opinion that tho charge of fraud had not been sustained, The car was genuinely a new car, and was not, as alleged by the plaintiff, fraudulently represented as a new one. He further expressed the opinion that the car shortly after delivery to tho plaintiff developed defects of such a nature as not to be explicable on ?he supposition of misuse by the plaintiff, but to indicate that tho car was substantially defective in its workmanship when sold by the defendant company. Ho reserved judgment, however, in order to consider certain defences in point law T&ised, by the defendant company in respect of the cause of action based on > an alleged breach of tho implied conditions as to fitness and merchantable quality. j In the present case ho found as a f act; that the car told to the plaintiff was by j reason of inherent defects of workman- j ship not reasonably fit for the ordinary purposes for which such a car was Ic-| signed, and for which the plaintiff purchased it. He further found as a fact that it was purchased in such circumstances as to show that the buyer reli-H 1 for tho absence of such defects on the skill and judgment of the seller. RIGHT TF REJECTION. "I have to determine whether in any 6ue.a manner Jhe plaintiff has lost >he righc of rejection in the present ease/' sai I His Honour. "He purchased the ‘ car on January 20ih, 1023. 2nd after having been taught to drive it by the defendant's he took possession a few days later. He rescinded the contract on April 21st, three months later, by a letter from hits solicitors to the defendant company. In the meantime he had driven the car from Wellington, to Napier and back, and also used it frequently on short journeys in Wellington] and its vicinity. During this period the! car had progressively developed numerous i defects, and had required repairs aud j adjustments on several occasions. 'lliel car must have been driven by the plain-j tiff for some hundreds of miles *l-} together. j "On behalf of the vendor it was con- 1 tended that this delay of three months ■ -was unreasonable, and that user to the! extent, indicated amounted to an exercise j of dominion by the buyer inconsistent! with the ownership of the vendor, and therefore that the right of rejection h**« j beer. lost. It was contended on bell*if j of the purchaser that the nature of ♦hel car’s defects could onlv be made manifest 1 by a somewhat extended period of use. . j "There aro cases in which these defects are discoverable at once or on a mere cursory inspection. There are other i coses in which tho defects are so far latent that seme form of investigation or : even user, and some consequent delay, may bo essential for their discovery. But if such user or such delay exceeds what is reasonably necessary for this purpose, it amounts to an acceptance which destroys the right of rejection and relegates the purchaser to his right to dami-ges as for a breach of warranty.

PLAINTIFF HAS NOT THAT RIGHT. "This I think is what has occurred in the present case. The purchaser has dono more than merely try tho car for tho purpose of ascertaining its defects. Ho has used the car for his own purposes to <i substantial extent, and for a substantial period, and has thereby obtained for himself the benefit of part of the consideration for which he paid the purchase moiey to the vendor. He cannot now return the car and recover tho purchase money. It. is doubtless true that tli3 plaintiff was so far ignorant of the structure and mechanism of motorcars and l so far inexpert in the use. and inspection of thorn that he himself was incapable of ascertaining tho defects of this car except by the empirical process of driving it until it developed those defects and finally broke down by reason of them." lie could, however, enlarge his rights against the vendor by reason of liis own want of knowledge in this respect. If ho w'is personally unable to inspect tho car at once, so as to ascertain its true condition without undue user and undue delay, it was his duty to entrust that examination to some expert on his own .behalf. If this had been done many of the defects could doubtless have been ascertained at once The case, when it came before His Honour last month, lasted several days. Mr A. Foden appeared for the plaintiff, and Mr J. B. Cooke for the defendant company.