SALE OR NO SALE?

Wanganui Chronicle, Volume 74, Issue 58, 10 March 1931, Page 11

SALE OR NO SALE?

DISPUTE ABOUT RADIO JUDGMENT FOR PLAINTIFFReserved judgment has been delivered by Air J. H. Salmon, S.M., in which Percy Colman, of Wanganui, agent, claimed the price uf a radio set from Huia Reid, of Wanganui, married woman. Air Barton appeared for the plaintiff and Air Blennerhassett fur the defendant.

“Prior to September, 1929, the defend ant contemplated purchasing a radio set,” stated Air Salmon. “She had tried several machines and a local firm of electricians had erected au aerial at her residence. She communicated with plaintiff who was advertising the Steinite radio. The plaintiff first installed for demonstration a Steinite radio set and subsequently a Steinite radio-phonograph combination set. The defendant says she complained on many occasions to plaintiff that the machine had a tremendous hum and that he gave her to understand that this would be rectified in a new model which was coming out in Alarch which would have different valves. The defendant says this suited her as she was leaving for Australia and did leave in October returning in December. The order for the Steinite electric radio-phonograph relied upon by plaintiff was signed on September 11, 1929, and it is significant that the time for delivery is stated as ‘on or about March 1, 1930.’ The plaintiff says he doesn’t know that she mentioned the hum, but in view of tho order date for delivery I accept defendant’s version on this point though it is immaterial to the point in issue. Delivery of Machine.

“The machine was not delivered in March and in that month plaintiff left for England. He was away he states from tho end of Alarch until sometime in September, and he left matters in the hands of his salesman, Air Peter Jackson. The machine was not delivered in Alarch and defendant made no inquiries about it although she was at home from Alarch 1 until Alay when she went to Wellington. She returned from Wellington in June. Air Jackson who now had charge of plaintiff’s business says that he rang up Mrs Reid —he supposes about the first week in April, but got no reply; that he rang up about the middle of April and got Air Reid who informed him that Airs Reid was absent and would not be back until June or July. Air Jackson states that it was about the middle of July that he. rang up Mrs Reid and asked he r about the order they had for this machine

“Now it is clear that, up to this point the plaintiff had never had a ma thine available to instal. Even in July when he rang up he admits that he told her he wasn’t ready to supply a machine then, but that he would be shortly. There is a conflict of evidence and between defendant and Air Coleman and between dfendast and Mr Coleman as to the actual words suoken at the different interviews. “Contract Not Performed.” “The plaintiff relies upon the order of September 11, 1929. There is no doubt that the contract was not performed. The machine was not delivered on or about Alarch 1. It w r as not delivered even in April when Air Reid was in the house and Air Jackson would have had the opportunity to instal the machine if he had had one. It is clear that he did not have one. It is clear on his own admission that he did not have one even at mid-July. In these circumstances the defendant was entitled to break the contract as not having been carried out and therefore entitled to repudiate it. Conflict of Evidence.

“The difficulty has been to ascer tain from the conflict of evidence as to the negotiations which followed in July, August and September 1930 whether the defendant waived her right to repudiate the agreement of September 1929, or whether the negotiations for the Steinite radio Combination which was actually installed in August, 1930. had reference to the agreement of September 1929. I was misled at one stage as to the true nature of the defence by the defendant’s own evidence. She laid stress upon the unsatisfactory results from the instrument, first on account of its excessive hum and secondly because it was incapable of picking up outside stations. Now it was clear since she had given an order for the instrument under its trade name that she could not afterwards repudiate on the grounds that the instrument did not come up to her expectations. That, however, was not the defence relied upon.

Case For Defence. “The defence is that the original contract was broken by the plaintiff in that he failed to deliver the instrument ordered on or about March 1, 1930. There is no evidence of any request on the plaintiff’s part for a postponement of delivery. It was not until about July that Mr Jacksor. got in touch with the defendant and asked her if she was still thinking radio, and having ascertained that she was will ing to consider it he took up—not the type of machine that she had previously ordered, but a small machine. The Steinite was not installed until August or September. From the documentary evidence T think it must have been August 22 though defendant says September 19.

“It is significant that according to Mr Jackson this machine is not permanently installed— at least to the ex tent that the wires go through a win dom and not through a wall. Upon the whole, the circumstances in which the machine came to be installed in August, 1930, appeared to be more consistent with the evidence for the defence that the plaintiff having failed to perform the written contract it was cancelled by parol agreement, and the defendant then permitted the plain tiff s salesman to put in an instrument for demonstration purposes.

“Apart, from the circumstances to which I have referred the weight, of evidence of the defendant as against plaintiff and his salesman respectively (they were not present at the same time) and the corroborative evidence of the maid as to scraps of conversation that she overheard is in favour of the view that tho parties elected to treat the order of September .1, 1929, as cancelled and to start again with a demonstration. We are to remember in this connection that the first demonstration had not proved satisfactory and that the order of Semptember 11 was given because the defendant was given to understand that the model due in M°-\'h. 1930 would not have the de fee' Vi complained of. Once we ar

rive at the conclusion that the order of September 11, 1929, was cancelled and that the instrument installed in August 1930 for demonstration pur poses is the subject of a fresh agreement, then it is clear that the defendant is entitled to repudiate an alleged sale of the instrument if it has not proved satisfactory. Difficulties of Case. The difficulty that I have experienced in this case has been due first, to the direct conflict of evidence, secondly to the unbusinesslike methods of the plaintiff, and thirdly to .the way in which defendant’s evidence was givenThere are some answers given by defendant in cross examination which have caused me a good deal of consideration. The first of these is: ‘lf he had kept to his contract and delivered a similar Steinite radio which was sat isfaetory I would have accepted it.’ Now if that answer referred to the machine ultimately installed in August 1930 it would have been fatal to the defence, but it would be unfair to the defendant to take that, extract from the whole of Tier evidence and apply it to the last installation. It must be borne in mind that her evidence throughout has insisted upon the fact that the first contract had been cancelled. It is clear then that she is referring to the contract for the machine which was to bo delivered in March which contract was not performed by plaintiff. “The other answer of defendant's which gave cause for considerable reflection was: ‘ln September last year

I did discuss payment with him (Mr Coleman). 1 will not deny that I may have shown him my bank balance’ This certainly loosed as if defendant had made up her mind to purchase the instrument installed in August, 193(1. On the other hand the answers are in reply to questions framed on cross examination. The answers are consist ent with there having boon a discussion of terms in the event of her deciding to purchase anti while she was still wavering on the question. Magistrate's Finding. “I find therefore that the original contract of September 11. 1929 was not carried out by plaintiff and that it was cancelled by patrol agreement or by implication. I find that the instrument installed in August 1930 was installed for demonstration purposes. There is nothing in writing nor was an order given by defendant for this particular instrument, under its trade name. She has found It unsatisfactory ami she denies that there has been a sale. I find that there was no sale of this in strunicnt. “The plaintiff is therefore entitled to recover only for repair work done on the aerial which was an independent matter. The defendant has not counter-claimed for the return of her deposit under the original contract; indeed she specifically waives tho deposit. Judgment for plaintiff for 15s 6d. Court costs 10s, witness Jackson on point of aerial repairs 14s. ’’