DELIVERY OF MOTOR TYRES.

Wanganui Chronicle, Volume LXXVI, Issue 18431, 15 March 1922, Page 2

DELIVERY OF MOTOR TYRES.

CLAIM FOR DAMAGES. At the Magistrate’s Court yesterday reserved judgment was given by Mr. T. A. B. Bailey. S.M., in the case, Pownall Rubber Company v. H. M. King in which the plaintiffs sought to recover £34 6s damages in connection with the delivery by the railway stationmaster at Raetihi of two m’Kor tyres. The circumstances were: On the 13th March, 1921, Hill a motor proprietor at Raetihi, wrote to the plaintiff company asking it to supply two tyres. As the plaintiff had not had any previous dealing with Mr. Hill, they caused the tyres to be consigned to themselves at Raetihi, and drew on Mr. Hill for the cost of the tyres, as invoiced, attaching to the draft a delivery order, to be handed to Mr. Hill on his meeting the draft. They advised- Mr. Hill of the course they had adopted. On 18th. March an employee of Hill’s without any order from the plaintiff company, was given delivery of the tyres. It was not until some time later that the company became aware of this. Subsequently they informed the Department that if they did not recover payment from Hill and Co. they would claim on the Department for the amount. Considerable negotiations took place between the two parties, and finally on 29th July Hill sent a money order for £5 on account of the debt, which was accepted. The defence was that the plaintiff company, knowing that the goods had been wrongly delivered, recognised the delivery and still looked to Hill under his contract, while at the same time they tried to recover in tort from the defendant. The Magistrate expressed the opinion that plaintiffs, after they knew of the wrongful delivery, recognised the contract with and delivery to Hill. On June 14th the stationmaster at Raetihi was informed by the plaintiffs that they could not recognise Hill in this matter, yet on that very same day an invoice for the goods was received at Hill’s garage. On 21st June a post-dated cheque was sent to the plaintiff company by Hill in payment of the account he had received for the goods, and on Bth July the cheque was accepted. Lastly, on 29th July Hill pai<T £5 on account, which was duly accepted and credited to him. In the Magistrate’s opinion all these facts showed a recognition of the contract and delivery, and therefore the plaintiffs could not now turn round and sue the defendant for damages for wrongful delivery. Judgment was given for defendant, with costs. On behalf of Mr. Cunningham, for the plaintiff, the Magistrate fixed costs for appeal. Mr. W. A. Izard appeared for the defendant at the hearing.