MOTOR CHASSIS CONTRACT.

Taranaki Daily News, 27 August 1917, Page 3

MOTOR CHASSIS CONTRACT.

DELAY IN DELIVERY. SUPREME COURT JUDGMENT. The reserved judgment of Mr. .lustier Chapman in the case of J. E. Fitzgerald (appellant) v. T. W. Hanwright (respondent) was read by the deputy registrar at New Plymouth Courthouse on Saturday.

Hia Honor said: This is an appeal on facts and law from a decision of Mr. A. Crooke, S.M., at New Plymouth The parties met at Windsor Road in February, 1910, and came to an agreement for the purchase by the respondent from the appellant of a motor chassis, for which respondent agreed to pay £BOS. of which £73 was paid as a deposit. Jt was understood that the chassis ivas to ocme from England. The last sentence of the agreement, ''delivery about July or August," was inserted at respondent's instance, and was repeated in a memo at the foot, signed by him for reasons which appear hereafter. At the head of the agreement is a memorandum stating that the contract is subject to accidents, strikes, and contingencies beyond the control of J. K. Fitzgerald. The magistrate finds that the object the respondent had in view in buying the chassis was that he expected to obtain, and did obtain, a contract for carting cheese from a factory, and he wished to have the chassis about the end of July or the leginning of August for tl.i' purpose of :arrying out this contract. The magistrate expressed himself as satisfied from ■lie evidence that the appellant was iware of this. The appellant says he mlered the chassis by cable, but that le lias a standing order with the mami'acturers to send out 50 annually, or ibont four per month. These, he says, 10 distributed to customers as they arived. and according to the priority of .he customers' order-. The one he orlered specially for the respondent did lot arrive until November 13. He revived machines in July and August and old them to other people, lie had a nachine on the water. It arrived too oon for respondent, and appellant sold t. On August 3 respondent wrote statng that he was very much in want of ho waggon. To this he received no .nswer. He wrote again on August 28 hreatening to cancel the order on Repember 1 unless he got delivery before hat date. This also was unanswered. )n September "2 his solicitor wrote to .ppellant stating: ''t'nless delivery can ie given to my client within seven days rom date, he desires to cancel the order ;ivcn to vou, and will claim a refund of he amount paid to you on account." To his the appellant replied that lie had lone his best, whereupon the respondent I'rote cancelling the contract. In this kCtion he sues for the deposit. The nagistrate gave judgment for the repondent. I think what was really inended was delivery before the milk eason, namely, some time early in Augist, with liberty to deliver in July, and hat the whole of August and a little nore was conceded to the vendor, but hat anything which would seriously inerfcre with the purpose for which the hassis was, to the knowledge of the endor, wanted by the purchaser, was lot conceded. The circumstance that aa ato as September 5 the appellant did lot even know where, the chassis was ihows that lie was not prepared to deiver it within a reasonable time after ;he month of August had expired. The ihassis that had not been appropriated >.nd was described as on the water, night have been kept until respondent ivas ready to receive it. It suited the ippcllnnt' better not to keep it, but to rust to another arriving in time which, ■onsistcntly with his engagement with >thers, he could deliver to respondent. Inhese circumstances I think that the espondent was justified in refusing to irry out the contract, and that he is ■ntitled to recover the sum paid on acount. Appeal dismissed, with costs £lO 10s.

The case was argued for the-appellant by Air. J. 'H. Qnillinm (instructed by Messrs Chapman, Skcrrett, Tripp, and Blair, Wellington), and for tin- respondent liy Mr. Frank E. Wilson (on behalf of Mr. H. J. M. Thomson, Ingleflood).