SUPREME COURT

Dominion, Volume 12, Issue 210, 30 May 1919, Page 7

SUPREME COURT

SALE OF A MOTOR LORRY MISREPRESENTATION ALLEGED .His-Honour tho Chief Justice (Sir . Robert Stout) -presided, at the Supremo . Courti yesterday, and dealt with tho first of tlie defended civil cases. Magnus, Sanderson and: Co., Ltd., of Wellington, motor-ear dealers, proceeded ' --against"H. E. M'Entee, W., If. M. - M'Entee, and P. L. Guillard, contractors, -of Auckland, to recover £SdO on the sale of a Tiiorneycroffc motor wagon. Mr. T. •Noave appeared for the plaintiff company ' and Mr. J. W. Blair for the defendants. Mr.'. A. E...Dimoclc was foreman'of the .'jury.of twelve. ,' ...... It was claimed on behalf of tho plain- ; 'tiffs.that, on or about-January 16,.19151, the defendant U. E." M'Entee, oh :behalt ■ of all tho .defendants, ordered from' tho plaintiff company a Thorneycroft motor; ■''.wagon for i'sso, and gave a signed order ifor it, the order to bo'confirmed by telegram. On January 38 the confirmatory -.-'telegram was received-by the plaintiffs, ■ the telegram' ';■■. adding Include brake, 'lamps; and'horn, cheque following."'Subsequently the defendants refused, to accept '' delivery of tho wagon, and tho plaintiffs ■ therefore claimed the sum of #550, to-. " : getber'with the sum of «G10 : tho Tjricec'oi . thebrnko; lamps, and horn .fitted-'to tho wagon-at tho request-of-the defendants.. '-• : For tho'defence the contract..was •''act-' '.' mi£ted, ; butit -.-was contended on the following understandings: ".'(a) . That; tho wagon was 40 T 45 horse-power; (b) that it. .' bad, only;been on the road for seven '...y.e.ars;..(c)'' that-it was in good working ■ -order and would'carry 5 or G tons witb- '„' lout'.difficulty; ;(d) that the wagori had /.not been abused and was in first-class ' .'..order j']'(o) that, tho wagon had '. 8-inch ' ''tyres. 'Each .of-these representations,'tho: ' defence alleged, was untrue. ■ In regard .to tho plaintiffs', churn for jßJO'for brake, ' lamp's;.and horn* defendants'claimed that ; the"price'quoted for fitting the brake was, ."' M arid the lamps ,£G,' and on this quota-. . tiontho work was ordered. : :. Defendants also counter-claimed for tho sum'of X , 100,,..0f. which £25 was. the deposit'paid on the lorry and .£75 for the- . cost, and expenses incurred by fTie de- ..', fondants in two fruitless visits to Wei- ' lihgton. '■■''■,''' "' •"'.'' ' Mr. Neavo. said, that the contract to purchaso was admitted by the defendants, but misrepresentation was alleged, and'ho. ...therefore thought that, counsel for the "^defendants'should start. ' •' : His Honour: It is an affirmatory defence. ■'•' • : ; . 'Mr. Blair, in opening, said the defendants set up an affirmative defence,, that- was that Magnus, Sanderson and ■ Co. did not correctly describe the wagon. The onus of proof was therefore on the defendants:" When dealing with Britishbuilt motor-care, horse-power, meant tho: Royal automobile rating. This Thorneycroft wagon, which was represented as 4045 horse-power, was, according to English . rating,' only 29 horsc-pow.er. The defendants wanted a 5-ton wagon for' their business, They owned a'coal property, ami the coal woii- was sent to a railway ' 'station about.-seven • miles froni the mine. "It was "represented to the defendants.that - the lorry had been on the roads' for about seven years, artd they jiad since ascertained that tho lorry left the build*. - er's hands on-August 31, 1905, so that the ■'-vehicle-would see its fourteenth birthday '■ : in about ■ threo months. The lorry had beou in-' New Zealand longer than seven years. -It was further, represented-'that ■ the'lorry was in good working order. On this point he proposed to call evidence' to 'show that tho'cylinders 'were cracked. It was. represented that'there would bB ■no difficulty in; carrying 5 tons. A-trial v'-was' given after'the defendants; had gono; ■to a -great deal of trouble to secure tlie same, and with four tons on it : took the wagon allots time to goa-short distance up Taranaki Street.-, further, the de-. fendants would'.show that this lorry was. built;up out of two.cars; The wagon' ' that was sold to tlie defendants for. : ' was purchased for .£80; Magnus, Sanderson and Co. boiightfit for '.£100; that is -to say, they assessed, it at that figure and took it in exchange for another car.' '.They put rubber tyres,on the wheels.' : Mr.'Blair, continuing; said that one of.. ■.-the wheels of the lorry was .not. round,, but egg-shaped, .and the defendants:had' also.'discovered* "that 'the ; ' plaintiffs' .' put, n'carburettbr-on it-to : -whirl up' more power.' The carburettor was larger'than' was required for such'an engine. It was jiot necessary from the defendants' point of view, to prove that Magnus,-Sanderson and Co. made ;these representations, de. • liber'ately, but they did-say that they made them and that they were not true. All tho representations were made in writing, except the representation with respect to the horse-power. • Several witnesses were called, and gave ' evidence in support - of counsel's, statements. Tho case had not concluded when the Court rose.