A MACHINERY CLAIM.

Gisborne Times, Volume XXVI, Issue 2380, 22 December 1908, Page 6

A MACHINERY CLAIM.

DE LAUTOUR v. TAYLOR

JUDGMENT FOR DEFENDANT WITHOUT COSTS.

In the Magistrate’s Court yesterday morning, Mr. -AY. A. Barton, S.M., delivered the following reserved judgment in the case in which C. B. de Lautonr proceeded against Charles Taylor to recover the price of a band saw machine, alleged to have been supplied to defendant’s order. “The plaintiff himself knows about the matter. The negotiations for the purchase of a saw having been made beween Mr. 'McMillan, an employee of the plaintiff, and the defendant. Au AlcAlillan says that the defendant ordered a saw from him and that it was supplied according to order. He says the defendant complained of the machine on arrival, and asked for certain alterations to be made, and tlir.it they were made at plaintiff’s expense. 'He further states that' defendant did not complain about the jnachine until after the alterationwere made to it, and that he never refused to pay for it on the ground that it was not satisfactory. Andrew Davys says that he made certain alterations and additions to the machine, and gave it- his opinion that it was not suitable for every day use,and that it was too light for defendant’s work and that the guide supplied with the machine was unsuitable.

AAulliain Horne says “J was in defendant’s employ in April, May, *i«id June. I saw the hand saw in question in the shop and saw it worked off and on daily. It broke a lot of saws. It- was worked 'for nearly three months. I was working next to the saw.”

Defendant says that the machine supplied is not in accordance with, his order. That when the saw 'arrived he refused to take delivery of it, on the ground that .it was not the one he ordered. He says that Mr. McMillan looked at it and admitted that it was not up to order. ,He further says. that McMillan asked 'him to put it up 'and work it, and that he would try kind get the one he had ordered. Defendant’s evidence is corroborated to some extent by Joseph Davis, who was in defendant’s employ when the machino 'arrived, and he says “1 helped to unpack the saw and ail so helped to set it up. I expressed the opinion that the machine was not up to much, and that it would not do the work required of it. Just then McMillan, agent for .plaintiff, came into tho shop, and I heard defendant .q\y to him ‘This is not The machine I ordered, it is only fit for scrapiron.’ After some discussion over the matter I heard (McMillan offer to effect certain alterations. The machine was .set up and tried and it was a source of danger, owing to tlio saws slipping nnd breaking. After it had ■been thoroughly tried I was convinced that the machine was quite useless for the work required of it.” The evidence of this witness is corroborated by John Ajitken. I cannot doubt upon the evidence that the defendant did, immediately on arrival of the saw, complain that it was mot in (accordance, with his order, .and that it was unsuitable for the work required of it, and tasked for certain alterations which were made, and after the alterations were jnade the defendant used it on and off for two or three months. Defendant says that McMillan, plaintiff’s representative, asked -him to put the saw up mnd work it, and'said that lie w'ould try t 0... obtain the one he had ordered. I am satisfied from the evidence that the machino. proved unworkable, and I am of opinion in all the circumstances that the defendant is not liable to pjny-rfor it: but I do think that the defendant should have informed plaintiff earlier than he did that he did not intend to keep it, and

that being so, I shall not allow any costs. ' Judgment for defendant without costs. ' ■ . r .