ENGINE FOR SAWMILL.

Hauraki Plains Gazette, Volume XXXIII, Issue 4481, 18 October 1922, Page 1

ENGINE FOR SAWMILL.

CLAIM AND COUNTER-CLAIM. RESERVED DECISION GIVEN. The reserved decision in the case brought by William Fleming and Son against the Broadway Timber. Company, Newmarket, to recover the price of an engine supplied and extras, and also a counter-claim for damages arising from the unsuitableness of the engine was given by Mr J. H. Salmon, S.M., at the Court on Monday, Mr E. W. Porritt appeared for plaintiffs, and Mr Ray for defendant company.

“On January 30 last the defendant, a ■sawmilling company, at Newmarket, Auckland, wrote to the plaintiff as follows : 'We want an 8, 10, or 12 h,p. stationary horizontal engine suitable to drive a small sawmill. If you have one please adyise immediately with full particulars and absolutely bed-rock price. Please reply by return mail. Say whether it has Pickering governors.’ “On January 31 the plaintiff replied. quoting two Bin by 12in engines! No business eventuated,. but early in February the plaintiff William Fleming visited Auckland and called at defendant’s mill at Newmarket .and saw Ross and Mearns, two members of the defendant company. He was shown the machines which the engine was required to drive,then in position, namely, a remitting saw and a surfacing machine. Mearns. pointed out to him where the other machines were to be placed, and asked him whether jhe could supply pulleys for same. Mearns stated in evidence that Fleming drew up a sketch and worked out the .speeds, and there is no, doubt that pulleys were subsequently supplied by the plaintiff (see plaintiff’s letters of February 20 and March 1, and items in statement of claim)., Fleming stated in evidence that he was not told what the defendants wanted the engine for. I am bound to accept the evidence of Mearns and of Ross as to what took place at that interview at the sawmill, Ross was a farmer who knew nothing of machinery. Mearn§ was a carpenter with about, twelve months’ experience off sawmilling. There is no doubt that at that interview Mearns and Ross made knowjn to Fleming the particular purpose for which the engine was required, and that in agreeing to purchase the Tin by lOin Tangye .engine, ‘.he subject of the present action, they were relying on Fleming’s skill and judgment to supply an engine suitable of doing the work, Fleming having suggested this engine, Mearns said he thought it was a bit small. Fleming appeals to have disregarded this or to have brushed it aside, but, according to Mearns, he did say *1 won't guarantee tp drive all your machines because I don’t know what you are putting in, but I .will guarantee to dr ye any-two of the machines at once.’ The defendants had a 10' K.p. boiler. It was agreed at that interview to purchase the engine mentioned by Fleming, and a deposit of £2O was paid to Fleming. Lawson, another member of the defendant .Company, came in late in the interview and was introduced to Fleming by Ross, The agreement appears to have been completed before Lawson arrived .on the, scene.

* “On February 20 the plaintiff wrote to the defendants advising them that he had shipped the parts except the pump air chamber, in which a slight crack had been noticed and which had been sent by plaintiff to A. and G. Price, of Thames, in order that they might cast a new pjie, and that plaintiff hoped to send this forward in a day or two. Reference is also • made in this letter to the fact that plaintiffs were getting the pulleys ready, and hoped tb send them away by the next boat. (These pulleys have already been referred to.) The engine and parts arrived shortly afterwards, and Lawson took delivery at the wharf in - Auckland early in March. A .concrete bed was prepared by the defendants, and with n a fortnight or three weeks from the time of i.ts landing in; Auckland the engine was given a trial run, and the defendants tried to use it fpr a week or so"The evidence of Lawson, who has had 30 years’ experience of sawmilling, and the evidence Of Mearns and Ross and of a number of engineering experts, shows conclusively that the engine was quite incapable of doing the work required pf it on two machines, and that the circular saw would slow down or pull up if a piece of 5 x 2 or 6 x -2 timber were put. through. "On April 1 the defendants wrote to the plaintiff complaining that the engine would not do the work requir- . ed of it, even as regards the small saw. On April 4 the plaintiff replied suggesting certain reasons for the engine not, working satisfactorily, and stat ng that he would call when in town again. The letter also offers to supply, if wished, a Tangy© Bin x 12in or .an Atlas Bin x 12in. "Mr Fleming did not visit Auckland again until May 23, and he then suggested th,a,t the pipe frpm the 10 h.p. boiler to the engine should be 2-inch instead of 1%-inc.h. He also appears to have examined the governors. He then returned to Paerpa,. On May 29 the plaintiff wrote to defendants stating that he had that day forwarded one bundle of 2-inch pipe and bends to connect, the engine to the boiler. On June 15 the. defendants wrote to the plaintiff stating that they were waiting to learn whether the plaintiff was going to do anything with the engine to make it fulfil the guarantee given by him. They also complained of the engine not having done any work, and added that they intended to lodge a claim. On June 20

the plantiff replied Reviewing the negotiations for the purchase of the engine. There is an obvious error in this letter.. The plaintiff states that when defendant's wrote their letter of April 1 they had then had the engine for nearly three months. The evidence shows that they had had it for not more than one month, and that it had been tried only for a week or a fortnight at the time the letter >f April 1 was written. The plaintiff in h s letter of June 20 offered to take the engine back again in part payment of any size engine required that he could supply from ■stock. At the same time lie requested a settlement of! the account for pulleys, etc., £3O 19s,'

“On July 6 the defendants wrote to the plaintiff stating that they had given the engine an extended trial with the two-inch pipe and that they had had representatives from four different engineer ng firms to examine the engine, and that, they were unanimously of opinion that tihie engine was too small for the boiler. They renew their complaint as t'o loss, and forward without prejudice a cheque for £lO 19s, which, with the deposit of £2O paid on the engine, they claim will square the sundries account of £3O 19s above referred to. They add that they are that day removing plaintiff’s eng ne, and will be glad to learn when plaintiff intends tp remove the same, and that the engine will not take the steam from their boiler, and that it is of no use to them. “The evidence of the engineering experts called for the defence shows that even with tlhe two-inch pipe from the boiler this engine was, too small to do the work required. There appears to be some doubt whether the two-inch p pe made any difference in the matter. Two of 1 these experts saw the engine pull up or the saw fail to cut a 6in x ,2in or 7in x 2in piece of timber. The evidence is conclusive that this engine .was too small to do the work required of it, and as already stated, I find that there was an implied warranty or condition as to the fitness of this engine for the purposes for which it was reqii red arising out of the , circumstances of the sale by virtue of sub-section (a) of section 16 of the Sale of Goods Act, 1908.

1 “The evidence shows that by reason O|f plaintiff’s failure to supply a.i engine /suitable for the purpose required defendants had to send their timber to another mill at Newmarket, namely, that of C. H. Frankham, for cutting and dressing, recutting and machining. They also had to pay cartage each way at. Is per hundred feet. They were also pbl ged to purchase certain materials from C. H. Frankham, apparently in order to fulfil their obligations to customers, and they consequently lost such profit as might have been made hlad they been in a position to do .the work themselves. They were further obligr ed to dismantle the engine supplied by the plaintiff and remove it and alter the engine bed to take a new engine. “The plaintiff now sues to recover the price o£ the engine suppl ed, £7O, less" deposit paid (£2O), andthe sumof£3o 19s for the extras supplied, less £lO 19s paid, being a total of £7O. The defendants in their letter of July 6 have forwarded a cheque for the sum of £lO. 19s above mentioned, stating that that sum plus the £2O already paid as a deposit will square the sundries account. “I find on the evidence that the buyers expressly made known to the seller the particular purpose for which the engine was required, and that the buyers, who were comparatively ignorant on the subject, relied upon, the seller’s skill and , judgment to supply an engine in accordance with their requirements, and that the engine was of a description which it was in the course of the seller’s business to supply . I find also that the engine was quite incapable of doing the wonk required, even to the extent of the machines that were in position at the time when plaint ff was shown the mill. " Frpm the questions asked in cross-examination it appeared that the plaintiff attached some importance to the fact that the engine had been described as a Tahgye engine. Even if that were so it would clearly not bring the plaintiff within the protection of th'e proviso to sub-sectjph (a) of Section 16 Of the Sale ofrGoods Act, 1908. This was the sale of an engine, and the fact that the name of the engine was mentioned has, I think, nothing to do with the matter, and the proviso does, not apply. It is not the quality of the engine which is in dispute, but its capacity to do the work. The plaintiff has clearly supplied an engine too small for the defendant’s requirements. The case is in many respects similar to Paterson v. Newman (28 N.Z.L.R, 218).

"The defendants have filed a counter-claim, in which it it claimed: “ (1) That the engine supplied by the plaintiff was .totally unfit ( for the purpose of driving the machinery at their mill, in consequence of which the defendants were obliged to send out the whole of th’eir work to another sawmill, namely, that of C. H. Frankham, in Newmarket, and that they have paid to Frankham the fol-, lowing sums for cutting and machining timber: (a) Fpr the month of April, 1922, £lB 3s 7d; (b) for the month of May, 1922, £7 2s Id'; total, £25 5s Bd, That had defendants been able to do their own cutting and machining they would/have been able to do such work for £l2, wherefore they claim the difference, namely, £l3 5s Bd. (2) That for the reasons before mentioned the defendants were obliged to pay cartage of uncut and undressed timber from .their mill tb

Frankham’s mill, and. of! the cut and dressed timber from Frankham’s mi l ! to their, own mill during the said months; wherefore they, claim to recover the sum of £l7 19s 6d, cartage paid.'

(3) That during the said months they were obliged to purchase from Frankham’s mill flooring and lining boards of a total value of £l2B 12s sd, and that their loss of profit on such transaction amounts tp £2o'.

(4) That the defendants were obliged to dismantle the engine supplied by the plaintiff, to remove it, and to alter the engine bed to take the new engine, wli ch it was necessary to install, and that they estimate the cost of such dismantling of the engine,. alterations to the engine bed, labour, material, and loss pf time at £lB. The . defendants, therefore, claim for £69 5s 2d in respect of the matters .abovementioned.

“ These figures were supported by some evidence, which was not disproved, and I find that they were substantially proved. "I think the counter-claim should be allowed for the full amount in

diminution or extinction of the price in accordance with Subsection (1) (a) of Section 54 of the Sale of Goods Act, 1908, as was done in Paterson v. Newman, supra. The plaintiff will therefore be entitled to judgment on the claim for £7O, with court costs £2 12s, witness Fleming 17s, and solicitor’s fee £4 10s. The defendants are entitled to judgment on the counter-claim for £69 5s 2'd, witn court costs £2 ; costs of taking evidence in Auckland, which was directed to the counter-claim, £9 13s; witnesses’ expenses attending at Paeroa, which evidence was also directed to the counter-claim: Ross, three days at 17s, and train fare 32s 3d ; Mearns three days ’.at 17s, and train fare 32s 3d ; solicitor, £3 19s. "The counterclaim befog one for damages and not the mere set-off of a debt each party is entitled to have independent costs according to scale : Shrapnel v. Lang (20 Q.B.D, 334).