£92 DAMAGES

Waikato Times, Volume 126, Issue 21040, 16 February 1940, Page 6

£92 DAMAGES

BREACH OF CONDITIONS SALE OF MOTOR-CAR JUDGMENT AGAINST COMPANY Finding that a breach of the conditions of contract had been committed, Mr Justice Blair awarded £92 damages in the Supreme Court, Hamilton, today in the case in which Claude Hotson, schoolmaster, of Otorohanga (Mr J. F. Trapski, Otorohanga) proceeded against Wright Stephenson and Company, Limited (Mr A. B. Buxton, Wellington) in respect of the sale of a second-hand motor-car. The case was the final one to be heard at the quarterly session of the Court. In evidence yesterday plaintiff said that in March, 1939, he bought a car from the defendant company for £225, on the understanding that it had done about 19,000 miles. His own car was traded in on the deal for £llO. However, he later found that the vehicle he purchased had covered more than 52,000 miles, and he contended that the defendant company had committed a breach ol warranty. He sought either rescission of the contract or damages of £125. “Plaintiff was prepared to pay £225 lor a 19,000-mile car, but we have it on the evidence of Lear that the real value of such a car was between £I6C and £170,” said His Honour, when delivering judgment. “Thus, if we take the value as £l7O, plaintiff was prepared, and actually contracted, tc pay 33 per cent more than the vehicle was worth. On the evidence of Lear, it would be difficult to sell a 52,000mile car for £IOO, which he said was its market value. As plaintiff’s contract was to buy a 19,000-mile car at 33 per cent above its market value, on the same basis, he would have paid £133 for the 52,000-mile car, which w’as actually worth £IOO. Original Car Sold “His loss, therefore, is the difference between what he contracted to pay, that is £225, and the similarly inflated value of the £IOO car, that is £133. Therefore, his loss is £92.” His Honour stated that as plaintiff’s original car had been sold the parties could not be placed in their positions prior to the contract. Plaintiff had elected to keep the car he bought and to revert to his claim for damages, and his loss was the same whether his claim was based on breach of condition or on fraud. His Honour found there was a breach of condition and did not consider it necessary to decide the question of fraud. Plaintiff was entitled to costs as on a claim for £92 with disbursements and witnesses’ expenses. If the parties could not agree upon the form of the judgment, it could be referred to His Honour for him to settle.

YESTERDAY’S EVIDENCE If there had been any misrepresentation, said Mr Buxton in his opening address yesterday, the only loss suffered by plaintiff was the difference between a 19,000-mile car and a 52,000-mile vehicle. The defence stated that there was little or no difference in value where the mileage was so infinitesimal in respect to the whole life of a car. The defence would also give evidence that the car was re-conditioned before it was sold. A garage proprietor of Hamilton, Leonard Zillwood, said he received a sales commission on cars he sold for the defendant company. Details of the transaction with Hotson were given by witness, who said that the only indication he had of the vehicle’s mileage was from the speedometer. Witness told Hotson that as far as he knew the mileage on the speedometer was correct. However, he told plaintiff that he could not definitely guarantee the mileage, but on receipt of information from Wright, Stephenson and Company. Limited, he thought the speedometer was correct. The vehicle was in good order and witness had no reason to be suspicious of the mileage. The prices of the cars sold by witness were fixed by the Auckland office of defendant company. Valued on Condition Stanley Bryan McKewan, the Auckland manager of defendant company’s motor department, said that the re-conditioning of the vehicle sold to Hotson was carried out in Wellington. It was in good order when witness saw it in Auckland. Witness valued cars on their condition only, using the mileage as a basis in only a few isolated instances. The general condition of a vehicle was always the main factor in the selling value, and the speedometer did not have a great bearing on the matter. In valuing cars for sale, witness also had to be influenced by the factors of supply and demand. The company never guaranteed mileage. His Honour : What examination did you make to ascertain the condition and value of the car? Did you inspect the working parts of the engine? Witness: No, I did not. I had a run in the vehicle and could gauge the condition of it. I inspected the tyres and generally tested the motor. Mr Trapski: You say that you seldom consider the speedometer in fixing values. Why? Witness: Many speedometers return to zero at the completion of each 10,000 miles, and some are disconnected for a time. In view of this the speedometer dees not count for a ereat deal. Witness said, in reply to questions, that he could not remember to what extent the Auckland office was debited by Wellington on account of the transfer of the vehicle* McKewan’s evidence closed the case for the defence. Buyer’s Stipulation After hearing the evidence. His Honour stated that Hotson made the stipulation that the car he was going to purchase was not to have done more than 19,000 miles, and it was on that basis that he undertook the transaction. The car he did get, however, had done two and a-half times the mileage that was represented to him. “We have not had a word of explanation.” said His Honour, “about the changing of the speedometer. It evidently showed its correct mileage when it tvas received by the defend-

ant company, but not when it was sold to Hotson. I do not like the position with regard to the speedometer in this case. These speedometres do not turn themselves back on their own account. Hotson was ■ promised a 19,000-mile car, and he did not get it. What he actually got was a 52.000-mile car. One class of 1 car was stated in the evidence to be a marketable commodity and the other was not.”