SALE OF GOODS ACT.

Otago Daily Times, Issue 20710, 7 May 1929, Page 3

SALE OF GOODS ACT.

SUPPLY OF THICKNESSING MACHINE. APPEAL FROM MAGISTRATE’S DECISION. Mr Justice, Smith was engaged in the Supreme Court yesterday afternoon in hearing an appeal by Winsley Brothers; of Oamaru, against a decision by Mr J. R. Bartholomew, S.M., who awarded the Woodfield Importing Company £B9 on a claim arising out ot the sale of a thickneesing machine to the appellants, who refused to take delivery on the ground that the machine was not of merchantable quality, Mr H. E. Barrowclongh. (instructed by Mr Hamilton, of Oamaru) appeared for the appellants and Mr A. C. Stephens for the respondent company. Mr Barrowclongh stated that the case was of considerable interest to the mercantile community, but strangely enough there was a great dearth of authority on the point at issue. In this ease there was a contract for the sale of a thicknessing machine, which was apparently a machine for reducing timber to uniform thickness. A contract was made verbally between the parties some time in March, 1928. There was no writing to emphasise the contract, but there was a letter, dated March 16, from the Woodfield Importing Company, which supplied the machine to the present appellants, confirming the contract, which was for the delivery of the machine at Oamaru at a cost of £9O, cash paid on delivery, and all charges to be paid ex wharf. There seemed to have been considerable delay in supplying the machine. The makers of the machine cov tracked to be bought were unable to supply it, or had gone out of business, and a slightly different machine was supplied. On October 17 Winsley Brothers wrote to the Woodfield Importing Company slating that they had no construction work going on then and were not likely to have any for some time. They asked if the Woodfield Importing Company could place the machine elsewhere. It could not be denied that Winsley Brothers were rather repentant of their bargain by this time, but subso-. quent correspondence showed that they were prepared to complete tho contract if they had to do so. There was a letter from, Winsley Brothers advising that on opening up the machine after they had taken delivery of it they had found that it had been very improperly packed. They gave details of the damage done, and refused to take delivery of the machine. They were prepared to take the machine if it had been in order, but it was not in order. A set screw had hewn sheared right off, and there 'was other damage. The machine was still partially unpacked in the case. Winsley Brothers had refused to pay for the machine, and action was taken in the Court for its price. The sneaker said it would be apparent from the letters that there had been no acceptance of the machine so as to prevent his clients from rejecting it. There was obviously something wrong with the machine when it was delivered. The machine was not properly bolted down in the ease which contained it, and it appeared to have received a bump. The magistrate made allowance for damage when he gave his judgment. His Honor: What amount did the magistrate give judgment for? Mr Barrowclongh: He gav e judgment for £B9. The magistrate took the .view on the evidence before him that the damage was trifling. His (Mr Barrowclongh’s) client applied for judgment or for_ a non-suit on the ground that the plaintiff should have put the machine in order and that when it was first supplied it was not of merchantable quality. This appeal was based on a point of law and a matter of fact, The magistrate had said_ the machine was of merchantable quality, but that was a question of law. He had held that it was reasonable for Winsley Brothers to pay £B9 for the machine. but he had not said that they should pay £9O for it. Mr Barrowclongh suggested that the magistrate had found in favour ot his clients on the facts by taking off £l. If this judgment were maintained any merchant could deliver an article with a minor defect_ in it and compel his, customer to take it without having any redress at all. Mr Stephens said that the case ‘was a question of fact purely and 1 simply. Whether goods were merchantable or not was a question of fact only. The magistrate’s judgment was accordingly . a decision on point of fact, holding that the crack jn the shield was of a trifling nature and did not affect any vital part of the machine. The appellant had failed to show that the magistrate had misdirected himself in any way. In spite of Mr Barrowclough’s endeavours to obtain an admission from the witnesses that the machine had been internally damaged he had been able to get only an admission, given very grudgingly by the plaintiff himself, that the machine might be damaged, but that such was highly improbable. The position was that- the machine would work perfectly if the shield was held in position. After Mr Barrowclongh had further addressed the. court his Honor said that he did not entertain any doubt about his decision. He thought that the appeal should he allowed, but in view of the importance of the case he would give his decision in writing.