A MOTOR TRANSACTION.

Taranaki Daily News, 24 August 1917, Page 7

A MOTOR TRANSACTION.

MAORI v. MOTOR AGENT. AN OP'JNAKE CASE. The hearing of the case Atutalii Itukuwai (iMr. IP. Ij. i'ltzherbert) v. Charles Lyttle (Mr. J. D. Gow. lilt.liam), was resumed at the sittings of the Supreme t\>urt in New Plymouth, before His Honor Mr. Justice Chapman yesterday tooming. This was an action brought to recover £475 damages for misrepresentation in connect..in with the sale a motor car. There was also a connter-claim for £123 3d for goods sold and delivered, work done, hires, etc.

The case for the plaintiff was closed on the previous day. Mr. Gow said that with a view to possibly shortening the proceedings he would move for a non-suit on the amended statement of the claim on the grornd that the fraud and misrepresentations alleged therein had not been proved. He conceded that there would remain certain matters he would still have to prove in connection with the claim aid the items on the claim which had not been admitted, but if the plaintiff were non-suited on tho amended statement of claim the case woflld be considerably shortened. His Honor said the whole story would have to come out. This was a Maori cP.3O. The Maori had gone to a solicitor and he (His Hrnor) could well understand the difficulties the solicitor would experience in fretting at the true state of affairs. It was a case that must be decided on the evidence.

Mr. Gow then opened for the defendant and proceeded' to call evidenced

Charles Lytile, the defendant, deposed that lie was a motor car garage proprietor at Opunake, The first time lie had met Atutahi in connection with the present proceedings was when he brought the Hudson ear to the garage. Previous to that., however, Atutahi had told him the car was knocking badly, and asked what it would cost to repair it. Witness replied that he could not tell without examination, anything up to £SO. Afterwards Atutahi came to him and said he had been .-tuck up on the road about eigjit miles from Opunake. Witness went out, but found it impossible to fix it on the road, and it was towed in, one of the tyres bursting on the way. In the garage witness examined the ear and found the battery practically ruined, besides other damage. He tad not. however, thoroughly examined the car until it was gold to him; the engine had not been running till then. Witness told Atutahi that the battery would have to be fixed and charged before it could be ascertained what was the matter with the engine. He and Atutahi then get on to the question of tvrea, and he told Atutahi that the tyres, tubes, etc., wouiu cost £35, He had not told Atutahi that to put the car 111 running order would cost £l5O. What he had said was that, including the tyres, the cost would be about £4O or £'so, perhaps more. Atutahi then said he would get a new- car and asked witness to bnv the one in the garage for £4OO. Witness said he would not give more than £3,">o. Subsequently at Hawera Atutahi approached him on the matter, and he said he would ■give £350 for the car, provided Atutahi bought a new car he intended to buy through him, Atutahi agrped to that and an agreement was drawn u;p bv a native interpreter named Kururangi, whom witness had never seen before. The interpreter read and explained the agreement to Atutahi and it was signed before witness. Afterwards ho went wi;' Atutahi to Mr. Newton King*B estab lishmnit at New Plymouth about buv ing a new car, but nothing came of the negotiations. Eventually AtutaLi purchased a Ford car which witness had had for two or three months. The price of a Ford at that time was £2lO i.o.b in Wellington, or about £215 in Opunake. He told Atutahi that if he took a Ford he would have to pay the price of a new one, and, in addition, about £8 °ax. ?I® 0T E P are T> ar ts and extras. Atutahi agreed to this, and witness did not, as plaintiff lad stated, loan him the car until a new one arrived. Atutihi bought the car and witness had borrowed it from hiin afterwards on one occasion, or perhaps two. On examining the Hudson car he found damage to a considerable extent. He sent it to New* ton King's and as even then it would not go satisfactorily it was. sent to Wellington. On returning from Wellington it was better, but not quite right About three months ago he sold the Hudson car, including a new tyro two tubes and other extras, for £350! The extras were were worth ronghlv £2O so that what he actually got for the car was £330. lie could not say exactly what it.bad cost him peraoually to it in good running onkr; another and himself had m-nt the lest r>art of three days at it Witness then «-»ve evidence as to the items on his coodW--1 claim, stating that the charges for liirp. wore at the ordinary prices. He had paid several accounts on plaintiff's behalf, and there were a number of small charges for materia] and repairs. With Tegard to sales of Ford cars at Opunake rebates wero made on straight-out purchases of new ears, but no rebates were allowed when second-hand cars were taken in part payment. In this, case , however, _a rebate had been allowed in the amended counterclaim on the advice of his solicitor.

1o >\fr. 1' itzherbi'rt: All fho tonus of the agreement were not included in the reeerpt. There was no specified time in wliich he had to pay the money. It wa 3 not true 'that he had to pay the money within two weeks. He sold cars himself on deposits of Tess than £2l If)?. Within a reasonable time he was to pa)' £325 to Atutahi. He expected to get commission on the new car ttiat Atntahi was going to buy through him. Atutahi was hard up at"the time. He was a skilled mechanic and expectedto b- a1)lo to repair the Hudson car. He" would have trusted Atutahi for small repairs, but declined to put new tyres on without tile cash. It was sometime be had told Atutahi made him change his mind frpm iaving the repah's done" to selling tile car, M had not said that the repairs would %ost about £l3O. He told Atutahi that theprincipal cost would be for the new. tyres and that the whole cost would be' £>-10 or £SO. He could not say definitely what hud induced Atutahi to alter his mind. Kururangi had read the agreement oyer to Atutahi at least | twice, onee in lingll.h, and once inMaon. He could .not say why the contract did not include the condition that if Atutahi bought a new car it was to be bought through him. Just after Witness bought the car Preston told him that Atutahi had borrowed the money from his sister witTi which <ie had purchased it. Witness had the Hudson car running for hire within a month of buying it. He saw uo reason why he should have driven Atutahi about for nothing until cither he got the pur- | chase money or until he got a new cw..

Ho denied thait 'he promised Atutahi to do so. Atutalii had. been perfectly willing to t,i!ce tlie second-hand Ford car in I satisfaction of tlio contract. There had been delay in getting a new Ford car; in fact, it never cajiie to hand. It wflfe a demonstration car hut had teen used for 'hire on several occasions. It had never 'been driven as hard as it could go before Atutalii got it. .After the car had been sold to Atutalii it was only used once for hire by witness' firm, so far as lie could recollect. .The items in the counter-claim for hire and repairs and those in .lie bilUof-sale covered the name period. When .Mr. Marshall came to witness to serve the writ in the present action witness showed him a receipt which he said he had obtained because ho was not sure that the previous one was any good. Mr. Marshall did not serve the writ when he saw the receipt. The receipt showed that there was £45 coming,to Atutahi. Witness had not mentioned £45 previously, and would probably not. have done so had he Jiot been threatened with the writ,, which was subsequently served "by Mr. Fitzherbert personally. With the exception of the date the statemuitu in the receipt were incorrect, including the statement that Atutahi had received £75 sterling, the amount really 'being represented by a contra acocunt.

George M. Cleghorn, law clerk in Mr. Gow's office at Qpunake, stated that the insertion of the word "sterling" m the ■receipt was his mistake. Witness further explained how the receipt was prepared and executed. Lyttle had brought 'Atutahi to the office.

. Frederick Loesch, motor driver employed by defendant, deposed that When the Hudson car was brought to the gariige it really was in a very bad condition. It hail been left out in the road ■for two or three days and nights, and ■that made it look shabby, Witness heard conversations between Atutahi and •Lyttle wrth regard to tho car. Atutahi wanted to get rid of the car and asked Lyttle to buy it for something about £4OO. Some talk ensued, and finally the price was fixed at £330. The speedometer showed tha% the car had run at least GOOO miles. Witness considered £350 was a very fair price, considering the condition the 'car was in. AtuKhi jyas a very rough driver and was occasionally drunk. H|e also overloaded the car. : Sj!^

j To Mr. Fitzherbert: Atutahi had been I sober when he did business with Lyttle It was not true that the Hu3son car ■fould have been fixed up quite easily. The Ford car which Atutahi got was a demonstration car which had not been generally used for hiring out. <>eorge Dewdney deposed that he had bad about fifteen years' experience as a motor driver. He had seen Atutahi's motor car when it was being driven by himself, and also when it was being driven by other men. Atutahi was a "fairly fast driver, and witness had 3ecn him under the influence of drink when driver. Witness had seen the car in the garage, but had not examined it. From its appearance, and from what he knew j about the way it had been driven, witness would not "have given more than £350 for it.

A. E. Magon, motor bus and garage [proprietor, stated that he had taught Atutahi to drive. Atutahi, however. w:w not yet expert, and sometimes when driving lie was not sober. Atutahi had to-ld witness that he wanted to get rid of the car. At first he wanted £4OO, but a few days later the price came down to £550. Witness did not. think it was worth more than £350, in fact he would not give that for it.

To Mr. Fitzhcrbcrt: Atutahi was qarite sober when he offeror witness the car for £350. Ho had been before the Military Service Board and had stated that he did not believe in the Bible and 7 had never read it in his life. He had just taken the oath in this case on the Bible, just because it had been handed' to~mm. Wliei the car was offered to him for £350 be had the money to pay for it if he had deeided to purchase. His valuation was not a mere /guess. He would be surprised to hear tha't the car had been sold a year afterwards to professional experts for £330.

Walter Rocgstrow, motor "engineer, estimated the value of the Hudson car, froji what he_had seen of it and from what ho had heard, at about the amount Lyttle had given for it. Evidence as to the damage sustained ®y Atutahi's Hudson car, and the consequent deterioration in value, was given bv Harry Henry Clawson, Robert Whale, and Ffank .DB^cworth. This 'was all the evidence, and Mr. Gow addressed ths Court on Ijehalf of the defendant, Mr. Fitzherberv* waiving his right, of reply. His Honor said he had listened very carefully to all t'ho evidence, in an endeavor to make out the real 'position o affairs. It might lb© that Atutahi was persuaded into the acceptance of £350, but there was no doubt that he «id accept it. So far he (his Honor) did not see M, way -o upset that transaction. Atutaiii peered ccritinly to have sold the Hudson car to Lyttle, and the transaction must stand. He had a strong impression that in dealing with the Maori with regard to the Hudson car Lyttle was influenced by the conviction that he was going to mako a good bargain, • and so had not given 'him the frank and candid advice that an independent adviser would nave given under the circumstances. The car was purchased by Lyttle, and the evidence was not clear that it had been purchased lit under value. There was not enough evidenco to S' t aside tho transaction. Kurm-angi had given evidence in a straightforward manner, and taking his statement into consideration it seemed the plaintiff had gone to him under the belief that he was to get £4OO for the car. Something was f>aid( about prico being £350. and that might have

influenced the Native, who seemed to ba one of that class of Maori easily influenced 'by European suggestions. There Was no doubt that Lyttle was conscious that he was getting the best of the deal; Ino other inference could 'be drawn from I What he said to Washbonrno than that ho thought 'he had the Maori 'ion the I hop." The first idea of Atutahi had been to get a Hudson car, hut lie changed his idea later in favor of a new Ford car. The substitution of a second-hand car had been an after-thought of Lyttle's. No mrttcr how muddle-headed the Mr.ori had been, there was no doubt that some of his statements as to the terms if the agreement were correct, and the dealings of 'Lyttle in some respects were open to grave suspicion. One thing that told strongly against 'Lyttle was that he had obtained a receipt containing statements which he admitted were incorrect, and had got Atutahi to sign it, after receiving a letter from ( Weston and Weston threatening legal proceedings. His Honor held that the delivery of a hew Ford motor car had 'been agreed Upon and had never taken place. That was the effect of his findings, but of course Lyttle would be entitled to the charge for the trips and other items on the counter-claim. These would" be for the registrar to fix or the parties to agree, upon. The plaintiff would be entitled to costs, but these depended on the basis of the judgment. Counsel agreed to confer on the nutter at once, and shortly afterwards Mr. Gow announced that alter deduction of the amounts Lyttle was entitled, to, judgment should be entered for the plaintiff for £2OO/practically the price of a new Ford car.

His Honor entered judgment accord" ingly. with costs as per scale, witnesses' expenses and disbursements.