SALE OF A CAR.

Star (Christchurch), Issue 17183, 29 October 1923, Page 8

SALE OF A CAR.

ENGINEER SUES GARAGE PROPRIETOR. A case was heard in the Supreme Court to-day to decide who should pay the owner of a car for the car which had been sold to a garage proprietor. William James Cunningham, Sumner. retired engineer, sued W. E. Richardson. Kaikoura, garage proprietor, for £375 damages, on the grounds that Richardson converted to his own use a Studebaker car and wrongfully de>prived Cunningham of it. The defence was that Richardson bought tlie car from Buick Sales, with Cunningham’s consent. A further defence was that if the car was obtained by Richardson it was in the possession of Buick Sales with Cunningham's consent and that Buick Sales were Cunningham’s mercantile agents, and acted in the ordinary course of business of a mercantile agent in selling the car to Richardson who bought it in good faith, as lie had no notice that Buick Sales had no authority to sell, and no notice of any lien or other right over the car on Cunningham’s part. Th© case was heard before Mr Justice Si.m Mr Alpers, with him Mr Cuthbert. ape pared for Cunningham. and Mr Hunter, with him M r Alii liken, for Richardson. Air Alpers said that it was one of these unfortunate cases in which the Court was asked to decide which of wrong or negligence of a third party. Cunningham formerly was in business iu Ashburton, hut, on account of illhealtli, retired to Sumner. The car. m October. 1920. was transferred to E. H. Healey under a hire-purchase agreement for £669. In 1922, Healey had paid £3OO, leaving £369 owing, j A representative of Buick Sales told Cunningham that Healey wished to exchange the Studebaker for a Perry, in possession of Buick Sales. Cunningham was reluctant to fall in with that arrangement, but he agreed to sell the Studebaker to Healey under a bill of sale over the Perry, with £7O cash in addition. Healey to take out acomprehensive third-party risk policy. The Perry was left with Buick Sales, >.vlio did not know that there was a bailment over it, and they gave Healey the Perry. Later. Cunningham finding that Healey had not signed the documents for the bailment, rang up Buick Sales and said that the exchange could not go on. In the meantime, in October, Buick Sales had sold the; Studebaker to Richardson, hut Cunningham was ill for three months, and was not told of the sale of the Studebaker. and did not learn of it until December. He then found it necessary to bring the present case. Unfortunately, before the case against Buick Sales came on. action was taken by the debenture-holders, who sold their, assets to the Blackwell Alotors, Ltd. Cunningham had no course but the ungracious step of recovering the Studebaker from a man who bought it in good faith. In July, 1922, Healey was in a rears in one payment for the Studebaker, and Cunningham could l ave declared a forfeiture, hut he did not do so. The legal position was that Buick Sales had physical possession of the Studebaker. hut Healey had legal possession, and had right of possession against the whole world, including Cunningham, ivk had only a “special property” in the car. a ha so right of ownership. Cunningham could not he held to have consented to something he- could not help. Plaintiff gave evidence on the linos of Mr Alpers’s address.

To Air Hunter: Witness, as a part, ner, had had dealings with Healey over houses, but the Studebaker busk ness was a private business. Air Blackwell did not understand from witness that the exchange had been arranged. Mr Hunter ; You have no grievance against Buick Sales?—Against the car. You don’t propose to ask for judgment against Buick Sales?—lf they were worth it, T might. Afr Alpers : You would be glad to get the price- of the car from theliquidator if you could? —Yes. You recognise that Richardson is just as unfortunate as you are?—Yes. Henry Sidney Rowe, garage proprietor. Sumner, said that the Studebaker in October, 1922. was worth £6OO. Sine’© then there had been a great ial! in the price of second-hand cars. Walter F. Blackwell, managing director of Blackwell Alotors Ltd., formerly manager of Buick Sales, said that the Studebaker was sold to Richardson for £350. Air Alpers: Nobody. thought Buick Sales were uiifinancial then, but in the following year tli© position became embarrassed and the debenture-holders stepped in and sold the assets?—A’es.

And th© £350 was rever paid to Cunningham ?—We never considered it was due to him, we thought ik was due to To Afr Hunter: The company only occasionally sold cars on commission, hut often took second hand cars as part payment for sales. The company went into the present transaction because it bad a- probable purchaser for a second-hand Studebaker. Healey said that lie had paid for the car and had the receipts but they were at Ashburton, and he could not show them. He had no suspicion about the matter. The Perry was sold for £2OO. , Air Alpers: For the nine-year-old Perry you received £sso?—That’s what it amounts to. Air Hunter, opening for the. defence said that Cunningham authorised Healey to exchange the Studebaker for the Perrv, and became owner of the Perry. Ernest Henry Healey, mail contractor, Ashburton, said that lie understood from Cunningham that lie could dispose of the Studebaker by sale or exchange. Witness did not say that he had signed the bailment, but that he was prepared to sign. He gave Cunningham £2O as part payment on the Perry car. Cunningham, later on, said that there was not sufficient security on the Perry and he would have a go to get back the Studebaker. To Air Alpers: Cunningham knew that the exchange had been made ami that the £2O was on the Perry, not tui the Studebaker. Joseph Herbert Radcliffe. green grocer. Sydenham, formerly salesman for Buick Sales, said that, after the exchange was made, it was discovered that the Studebaker did not belong to Heale- and witness consulted Cunningham, who authorised the exchange and handed the Studebaker to Buick Sales. William Edward Richardson, defendant. and William Page, manager of Combined Buyers, Ltd., formerly manager at Ashburton for Buick Sales, gave evidence.