A DOCTOR’S CAR.

Taranaki Daily News, 5 July 1922, Page 3

A DOCTOR’S CAR.

I SUPREME COURT ACTION BREACH OF WARRANTY FOUND. THE RESERVED DECISION, The recovery of the balance of the purchase-money of a motor-car was the object of an action heard at the last session of the Supreme Court at New Plymouth- A firm of garage proprietors in Palmerston North, J. Bett and Bayley, Ltd., sought to recover £275 19e Bd, the amount of a promissory note, from William Frederick Buist, medical practitioner, of Hawera. Mr. C. A. Loughnau (Palmerston North) appeared for the plaintiffs, and Mr. F. C- Spratt (Hawera) for defendant, who filed a counter-claim for £ofi. special damages, being amount of repairs necessary to the car, and £4OO general damages. Judgment in the case has now been delivered by Mr. Justice Reed, wbo points out that the plaintiffs admitted defendant was entitled to recover the £66 claimed, and it was agreed that the sole matters for consideration by the court were: (1) Was the engine a new engine? and if it was not the defendant was entitled to the full amount claimed; and (2) if it was not a reconditioned or repaired engine, was it of merchantable quality? After referring to the law on the latter point, the judgment proceeds: There are certain broad features in t'he case which may be stated at the outset. The defendant is a medical man who has had considerable experience with motors and is more than ordinary careful ... in the care and upkeep of his cars, having them periodically inspected at a garage. There was no suggestion that the car in question received anything but the most careful handling. On the other hand it is not suggested that the plaintiffs are morally responsible for any deficiencies there may be; all deficiencies that are alleged are confined to the engine and chassis which had in no way been interfered with by t'he plaintiffs, 'while of the body, which had been specially built by plaintiffs, the defendant had nothing but good to say. No question is raised as to the liability of the plaintiffs in the event of the court finding there has been a breach of warranty.

The judgment continues: I think the court is entitled to take judicial notice ! of certain well-known circumstances. These are that the De Dion car has an established reputation as a first-class French car; the supply of cars about the time the chassis came to New Zealand was hardly equal to the demand: that after the war enormous numbers of cars were sold, and these cars, after being repaired and re-conditioned were put upon the market- There is no direct evidence that this particular chassis was a repaired and re-conditioned one. It was obtained by plaintiffs by their London agents who reported that it eame from De Dion Bouton. Ltd., London. who in turn claim to have received j it from the works of the company in J France. The defendant agreed to pay

1£1825 for the completed car, and he was entitled to expect a first-class car, new I and efficient in all parts. His Honor ) then traced the history of the car, as disclosed by the evidence, whilst it was in the hands of the defendant, and also reviewed the correspondence between plaintiffs and their principals in the matter, in which it was stated: “You will see by his letter what redress he expects, and we trust you will give the claim your sympathetic consideration . • • • He is a motorist of many years’ standing and a man of the highest integrity, so that we feel his claim is absolutely genuine and we support it very strongly.” The De Dion Company wrote to the plaintiff’s agents acknowledging i the correspondence, and stating they had been very carefully going into this matter and were certain that in view of the length of time elapsed since the particular chassis was sent out from the works it would be futile to make any claim upon the manufacturers. “You will appreciate that the material and labor available to all manufacturers throughout Europe in 1920 was of inferior quality, and no firm was producing such satisfactory goods from the point of view of wear, as prior to the • war . . . However, as you are convinced of the bona fide* of Dr. Buist, we are prepared to make an allowance ourselves of £GO provided that it will be accepted as a full and complete settle- i ment of the whole matter.” Having reviewed the whole of the ex- ! perts’ evidence His Honor says: “Upon ; this evidence, although I am not pre- ' pared to definitely hold that it is proved . that the engine was second-hand or re- ; conditioned, I think its condition raises very grave suspicions that it was so . . . . . I am quite satisfied that it was not of merchantable quality, and that, there has been a breach of warranty for ■ which the plaintiffs accept responsibility. The defendant is therefore entitled to ‘ damages .... With the best consideration that I can give to the matter T think the defendant is entitled to recover £250 damages over and above the i £66 which is admittedly due for the replacement of parts, etc. This makes a total of £316. The plaintiff’s claim is for £275 19s Bn. The defendant is . entitled to set off an amount equal to the claim in extinction of that claim, and to receive the balance which amounts to £4l Os 4d. . . . Upon the claim judgment will be for the defendant without costs. Upon the counter-claim the judgment will be for plaintiff in the counter claim (defend- '■ ant in the claim) for £4l Os 4d, with £3l 10s costs with disbursements and witness’ expenses to be ascertained by the Registrar.