DEFECTIVE MOTORCAR

Dominion, Volume 13, Issue 34, 4 November 1919, Page 2

DEFECTIVE MOTORCAR

CAUSES LOSS OF BUSINESS

INTERESTING JUDGMENT

The troubles experienced by a returned soldier following on bis repatriation led to legal proceedings being taken against him for the recovery of a debt, and tho story of the case was outlined in Mie reserved judgment delivered by Mr. W. G. Riddell, S.M., in the.-Magistrate's Court yesterday. The parlies in the case were J. E. Fitzgerald Ltd. (plaintiff) and J. H. Ross, a returned soldier (defendant. The claim was for ,£6O 4s. 4d. for work done and goods supplied, together with instalments of purchase money on n caj- and interest, and the defendant Ross counterolaimed for Jil92 25., being ..£SO &s. owing by ihim to the Citv Carriage and Motor Works Lid., and £U1 1-ls. damages for loss of business during the time he was unable to use the lorry purchased from the plaintiff.

The defendant proposed to start a carrying business between Rona Bay and Wellington, and agreed to purchase a motor truck from Mie plaintiff for £M 0 on terms, subject to the Repatriation Board granting defendant somo financial help. The terms were later altered, and title purchaso prioo reduced to .£375, the Reuatriation Board agreeing to advance .£3OO. No doubt, said Tfis Worship, the defendant had relied on the plaintiff' supplying him with a motor vehicle capable of doing the work which he intended to take up; he was not an expert, and knew little of the mechanism of motor vehicles, He did not call in a mechanic, who could have advised him whether the truck was worth tiho amount asked for, nor did the Repatriation Board inspect ill One of the plaintiff's drivers accompanied tho defendant on his first trip to Rona Bay, but on that occasion'the magneto gave trouble. On several occasions the truck refused to start, and as time went on the defendant's troubles increased, and his service becamo so intermittent that hia patrons were compelled to give thoir business to more reliable carriers.

According to an independent witness the truck was attached to an old Overland engine, many of whose parts were very much the worse for wear. Defendant said that in'one period of eight days the truck broko down on four occasions, and on May 13 it was placed in plaintiff's parage for repairs. During tho time the truck was runnine the defendant had become indebted to the. plaintiff for repairs and' running expenses amounting; to ,£43 Cs. lOd. Ho admitted owing JCI4 Bs. 4d., but disputed the remaining amount on the ground' that the necessity for them arose through plaintiff having sold him a defective truck. The Magistrate held that the defendant must pay for items amounting to .SSfi 14s. 4d., including tho amount admittedly due, but certain other items could not be recovered, as they fell within tho scope of materials which should have beon supplied with the motor truck at tho time of delivery, or repairs whioh should not havo been necessary if the car had been iu proper running order when handed over to the defendant. Fe was satisfied that the stoppages complained of by the defendant wore not due to ■negligent driving on the part of defendant, who was a fairly competent driver. The- amounts claimed in regard to the instalments of purchase money and interest could not in his opinion be recovered, for the reason that the defendant had shown that the motor truck mis not reasonably tit for the purposes for which it was bought, and those- purpose.; were known to the plaintiff at iiHo time of the sale.

The defendant's counter-claim was made up of two items, ,£SO Bs., the amount of claim for repairs done by the City Carriage and Motor Works, and £W 14s. damages for loss of business for 20 weeks, less J?3S Gs. earnings by the defendant during that period. . When defendant's lorry broke down on May 13, he took it to plaintiff's garage for rcnairs,bub as a sum of .£43 6s. lfld. was then owing tho plaintiff refused to effect any further repairs until , .this amount was reduced. Defendant was either not able or not' willing tj. make any payment on accounh, and on May 15 Mr. C. W. 'Batten, the District repatriation Officer, wrote plaintiff requiring certain repairs to be carried out- Plaintiff -was' not willing to carry out thc?o repairs except on his own terms, and the truck was then removed to the City .Carriage and Motor Works, where it romaineiLuntil repairs costing JCSO Ss. wore effected..

His Worship held tihat as far as the repairs were.concerned the amount was recoverable with the exception of JlO in respect of two second-hand tyres, which could not ho expected to stand tho same amount of wear and tear as new. lyres. '

With.re.sard to'the claim for lcs of business, His Worship remarked that he thought the claim was based on unsound ground, and Considered that Hi? claim should bo limited to loss of profid from the. time he took delivery of the molor truck until the completion of the repairs by Hie City Carriap? and Motor .Works, a period of seven weeks, which profiti;, he considered, would not, in the circumstances, have exceeded i'&S.

Judgment was given for the nialntilf on (lie claim for ,£36 Us. .Id., with costs amounting to ,C 5 10s., and for the defpndn.nl- on the counter-claim for ,£GS Bs., wilih costs totalling Jsll ss. •

At the hearing. Mr. 11. E. Evans n»peared for. the plaintiff, and Mr. W, Perry for the defendant.