SALE OF MOTOR-CAR

Waikato Times, Volume 126, Issue 21039, 15 February 1940, Page 8

SALE OF MOTOR-CAR

CLAIM FOR RESCISSION QUESTION OF MILEAGE A case in which plaintiff sought rescission of a contract or damages on the grounds of fraudulent representation was heard before Mr Justice Blair in the Supreme Court, Hamilton, today. Claude Hotson, schoolmaster, of Otorohanga, proceeded against Wright Stephenson and Company, Limited, in respect of the purchase of a second-hand car. Plaintiff was represented by Mr J. F. Trapski (Otorohanga) and defendant company by Mr A. B. Buxton (Wellington). Plaintiff stated that in March, 1939, he opened negotiations with the defendant company through its Hamilton agents for the purchase of a motor-car. He purchased a secondhand vehicle for £225, and was told by the agent that it had not travelled more than 19,000 miles. Plaintiff paid a £5 deposit and handed his own car over, it being valued at £llO by the parties. The balance was to be paid by monthly instalments. Conversation With Agent Since the purchase plaintiff had discovered that the car had run over 50,000 miles, and that it was not worth more than £IOO. He alleged that the defendant company, through its agent, had made a fraudulent representation, and claimed £125, or asked for the return of his car and the money he paid the defendant company. Details of the conversation he had with Mr Zillwood, an agent of the defendant company, were given by Hotson, who said he asked for a good second-hand car that had done a small mileage. Zillwood said he had a car which had done about 19,000 miles. It was later taken to Otorohanga by a man named Chitty. The latter said he would guarantee that the speedometer reading was correct. When witness undertook a journey to Auckland a few weeks later the car used a good deal of oil, and he became suspicious of the mileage. On inquiring from the former owners, a course which took a few months, he found that the vehicle had covered more than 50.000 miles. He immediately wrote to Wright Stephenson and Company, Limited, stating that he would not go on with the deal. Undoubtedly, the statement that the car had done no more than 19,000 miles was the deciding factor in the sale. Former Driver’s Evidence William Mason, an agent for the company which formerly owned the car, said it was supplied to him in 1936. He used it continuously until it was traded to Wright Stephenson and Company in November, 1938. At the latter date it had covered 52.477 miles. A car dealer of Otorohanga, Thomas Rashleigh Lear, said that if it were in good order and had covered 19.000 miles, the car would be worth from £l6O to £l7O. At 52,000 miles he would be reluctant to trade it, but be thought it would

be worth about £IOO. Case For Defence Mr Buxton said it. would be stated by the defence that no actual warranty was ever made. There was only an expression of opinion. Even assuming there had been fraud, plaintiff had waived it by continuing to use the car. In any event, plaintiff would not b e entitled to rescission because the parties could not be restored to their original positions. It was contended that plaintiff had not suffered any Joss, because the price he paid was the actual market value, irrespective of mileage. The manager of the defendant company would say that no guarantee of mileage of a car was ever given by the company, and that the price of a car was fixed by its condition* Cftrocceding}