POKENO DISPUTE.

Franklin Times, Volume 9, Issue 623, 12 April 1921, Page 5

POKENO DISPUTE.

GUMMER V. BILLING. SALE OF SIDE-CAR. MATTED SETTLED IN COURT. At the S.M. Court held in Pukekohe on Thursday, before Mr R. M. Watson, S.M., an interesting case between two Pokeno residents was settled. This was a dispute re the sale of a side-car between Gummer (Mr Bosley) and Billing (Mr Mason). In opening the case for plaintiff, Gummer, who was suing Billing for £2l 17s fid, Mr Basley said that briefly the facts were that Billing had viewed the side-car and it was arranged that Billing should give Gummer one ton and two sacks bonedust for the car. On November 5 Billingasked Gummer to take the side-car back-as it was defective and that he had bought another. Mr Gummer claims that he sold the car to Billing and claimed the amount, £2l 17s fid. Gummer in his evidence stated that he and Billing were owners of Indian motor cycles. He had informed Billing some months previous to November 2 that he had a side-car for sale. On the afternoon of November 2, whilst he was discing a paddock he. saw Billing dismount. They: chatted across the fence. Billing said he had examined the side-car in Gummer’s shed and had come down to talk it over. He was assured that it was a satisfactory car. He told him £22 or equivalent in bonedust. Billing agreed to this: While talking it over Mr Gulland came along with a waggon load of timber. Billing said he would ask Gulland to take the sidecar into Pokeno. Gummer then accompanied Billing to the shed and sledged the side-car down to the waggon. The car was in good running order. He had used the side-car about a fortnight previously. He wanted to sell the car as it was of no further use to him as his wife did not like riding in a side-car. Billing took delivery of the car and promised delivery of the bonedust by Mr Gulland at an early date., On the morning of November 5, as Gummer tool: his cream .down to the gate to meet Donovan, the carter he saw 9 Billing, who said he had brought the side-car back because it would cost him about £lO to have it fitted to his machine. He answered that was absurd. Billing said then that there was a bar cracked which would help on the cost of £lO. There was a crack on the long bar which • connected with the motor cycle. That crack was not there when he delivered it to Billing. He told Billing he could not take a damaged cuticle back. Billing said he had a car which suited him better and was cheaper. He answered by saying he would not take it back. The side-car was then lifted off the cream, cart and left on tthe ide of the road. He then wrote Billing telling him he had delivered the side-car in good faith.and expected him to carry out his part of the contract. He also asked him to send the bonedust by Mr Gulland. He saw Billing that evening at the school and asked him what he was going to do about it and Billing said “Nothing.” Some days later the side-car was removed from the side of the road to inside his (Gummer’s fence. This was clone without his knowledge. Cross-examined by Mr Mason, who appeared for Billing, Gummer said that in conversation with Billing he had told him it was not a genuine Indian side-car that he had for sale. Counsel here entered into the technical details concerning the rigidity of a motor cycle side-car with a view to suggesting that the crack might have been occasioned by plaintiff.

Mr Gulland, carrier gave evidence substantiating what Gummer had stated regarding 'the carrying in to Pokeno of the side-car.

Billing-, in giving evidence, said he saw the car for the first time the day Gummer’s wife showed it to him in the shed. In conversation with Gumrcer, the latter had offered to sell the combination car. and cycle for £IOO. He agreed practically with the previous evidence leading up to the sale and the tahing over of the car. He claimed that the break in the bar was an old one. He admitted that he had an opportunity to examine the car and was at the time of buying quite satisfied. He bad nor had a great deal of experience in mechanics. He remembered Gummer seeing him on (the night of the sth at the school social and told him to put a couple of sacks over . the machine which was lying on the road side. Mr Kane, of Hart and Kane, motor c>cle dealers and gave evidence that on or about November 4 Billings called upon him with the frame of a side-car. Billings said he had bought the chassis at Pokeno and tha(t he had noticed a crack in it. Witness said in his opinion it was an cld crack . Billing asked him wlult it would cost to repair and fit to his machine. Kane said it would coat be-

tween £5 and £lO. To repair the

broken bar would cost about £3 ss. The chassis was unsafe unrepaired. To Mr Mason: He felt sure the crack was not new as it was quite rusty. He could honestly say it was not cracked within 48 hours. Balings bought a side-car and chassis off witness.

Mr Mason then addressed the Court.. He said he relied greatly upon the evidence of the motor mechanic who had a trained eye and mind. Billing was the reverse, his mind was more of the sluggish order. The mechanic’s opinion therefore was therefore very important and conclusive. This side-car was dangerous to life and limb, and this was surely and important fact in representation. This was not a case arising under the Sale of Goods Act, it was really a cast of barter. A good deal of law was quoted, and Mr Mason pleaded that judgment for defendant should be given in equity and good conscience

Mr Basley contended that the case was one of a straight out sale and did come under the Sale of Goods Act. The price was fixed at £22 Misrepresentation could hardly come in because /there had been an actual delivery of the motor cycle. Defendant then pulled the side-car to pieces and took the frame up to Pukekohe for repairs. Thus he exercised o dominion over it and it must have been his property. Mr Basley contended also that the crack was patent to all who looked for it and that Billing had had the opportunity of examining it. He argued that the Court should find that there was a specific sale and that judgment should be giver for plaintiff. In giving judgment, the S.M. said he was quite satisfied there was a contract for the sale of the side-car effected. Neither plaintiff nor defendant knew the crack was in the sidecar. The defendant, after discovering the crack, considered he was entitled to set aside the contract and purchased a new side-car. The Court is of opinion that the sale must be adhered to, that the warranty as to fitness should cover all defects and that defendant had a claim for damages for defect. Judgment, therefore, is for the amount claimed £2l 17s 6d, less £3 ss, or the equivalent in bonedust at the value of £2l 17s fid for 18 bags. Costs were: Court expenses £2 9s, solicitors’ fees £2 12s, Witnesses £1 15s 4cl.