FRADD v. BROWN & CO, LTD

084-NLR-NLR-V-18-FRADD-v.-BROWN-&-CO,-LTD.pdf

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Preae&t; Wood Benton C.J. and Show J.FRADD v. BROWN & (‘0., LTD.4>J—]). < i’oloiiiho. 8o.m
Sale ofgoods—Warranty—Condi t ion—Coni rar.lin writing—Verbal
warranty—Evidence—Findingsof fact ‘ based on credibility of
witnesses—When Appeal Court may interfere.
Ad affirmationmadeby avendor ofgoodsat the timeof sale is
a warranty only if jfc appears, on evidence, to be so intended.
” Ithasfrequently beenpointedout tha£ whenthe question
turns on the manner and demeanour of witnesses the Appellate*.Court should generally be guidedby theimpressionmade onthe
Judge who saw the witnesses; but there may obviously be othercircumstances quiteapartfrommaimerand demeanour which
may show whether a statement is credible or not, and – thosecircumstances maywarrant theCourt in.differingfrom the
Judge,evenon a questionof factturning on thecredibility of
witnesses whomtheCourthasnotseen.Clearly alsothere may
be c.nses in which it is apparent that tho Judge has misapprehendedthe facts in evidence before himand inwhich hehas failedto
notice, or give-dueweightto,otherfactsin evidencebefore him
which lend to support nr contradict the verbal evidence. ‘*
T
HE plaintiffs, Messrs. Brown& Co.,Limited,sued there-
spondent, Mr. Percy M. Fradd, for the recovery of a sum
of Bs. 6,832.53, the balance alleged be due on an account forgoods sold and delivered and work done between September, 1911,and June, 1612, and including a sum of Bs. 4,252.05, the price of a28 brake horse power Hornsby oil engine. The defendant, althoughbe originally denied the correctness of the amount claimed by theplaintiffs, ultimately admitted it, except as to a sum of Bs. 196.23in respect of work and labour done. He disputed this item on theground that the work bad been rendered necessary by defects inthe Hornsby oil engine which the plaintiffs had supplied to him.
( 303 )
The main defence, however, to the action consisted in a claim inreconvention. Thisclaim isembodied inparagraph 6 ofthe
answer:—
Fora further answerthedefendant states that inthemonth of
September, 1911,being in needof an enginefor his desiccatingand
fibre machinery,bestated hisrequirements tothe plaintiffs, via.,to
work four pain df fibre drams, one winnower, one disintegrator, andtwo desiccators, and was assured by the plaintiffs that a 28 horsepower Hornsby oil engine, which the plaintiffs said they coaid supplyat a cost ofBs.4,252.10, would meet thedefendant’s requirements
as- aforesaid! Acting on the assurance so given by the plaintiffs, thedefendant purchased from the plaintiffs an engine, which the plaintiffsrepresented to be one of 28 horse power with bulk oil and 24 horsepowerwith liquid fuel,andwhich the plaintiffs saidwassufficiently
powerful for the defendant’s needs as aforesaid. The said engine wasdelivered to the defendant, and the price of it appears in the said accountA under date September 26, 1911. The defendant subsequently foundthat the said engine cOuld not develop more than 15 horse power withliquid fuel, and that it was- not sufficiently powerful for the defendant’srequirements as aforesaid.
The defendant alleged that in consequence of the circumstancesstated in the above paragraph he had suffered loss of profits to theextent of Bs. 8,400; that the value of the engine was only Bs. 2,882.50;and that, after deduction of his own admitted indebtedness to theplaintiffs, the latter owed him Bs. 7,565.87, which he claimed asdamages. The learned Acting Additional District Judge dismissedthe plaintiffs1 action and gave judgment for the defendant for thesum of Bs. 1,855.54, the difference between the sum of Bs. 4,912.56which he found to be due to the plaintiffs and the sum ofBs. 6,768.10 which he awarded to the defendant as damages.The plaintiff appealed.
Elliott and E. W. Jayewardem, for plaintiff, appellant.
Batca, K.G.t and Driebtrg, for defendant, respondent.
Cur. adv. vult
June 24, 1915. Wood Renton C.J.—
[His Lordship stated the facts, and continued]:—
A large proportion of the evidence recorded in the District Courton behalf of the defendant is directed to show that the enginesupplied to’ him by the plaintiffs in September, 1911, would notdevelop anything like a 24 brake horse power between April andJuly, 1912, and that its condition then was attributable to the faultof the plaintiffs in hot having furnished the defendant with someof the accessories necessary for its working. The defendant relies,and is entitled to rely, on this body of evidence in so far as it maythrow light on any question as to the comparative credibility ofthe witnesses in regard to other and, relevant matters. But the
1918.
Fradd v.Brown 6
Cq»L*L
( *504 )
Wood
Riotok C.J.
Froddv.Brown <ftCo,, Ltd.
defendant has not claimed damages from ibe plaintiffe on the groundof negligence, and even if he bad done so, his failure to call theengineer by whom the engine was erected, or the mechanic bywhom it was worked, at or soon after the time of its delivery,would place a serious obstacle in the way of his success. Observa-tions of a similar character are applicable to the endeavour whichthe defendant’s counsel has made in the argument of this appealto support his claim in reconvention on the ground of an expresswarranty by the plaintiffs in page D2 of the catalogue, whichthey produced at the trial, that the engine was one of 28 horsepower with bulk oil and 24 horse power with liquid fuel oil. Thedefendant did not rely upon that warranty in his answer. It istrue that he says that he purchased un engine of the capacity justmentioned. .But the alleged representation on which he saysthat he acted had to do primarily, not with the horse power of theengine, but with its ability to work certain specified machinery.The second issue framed at the trial no doubt related to both formsof capacity. But when the plaintiffs’ junior counsel at a laterstage stated that he proposed to rely on the document D 2 as con-taiping the warranty sued upon, namely* u warranty that the enginewould develop 28 horse brake power and 85 per cent, of suchpower of liquid fuel, the learned District Judge ruled that thatwas in the nature of an entirely new defence. An applicationwas then made to the Court for leave to amend the answer. Butat this stage the defendant’s senior counsel appeared on thescene and said that he did not wish the answer to be amended,;md that he relied on the document D 2 in this sense only, that thecatalogue containing it had been handed to the defendant at thetime when the representations set out in the answer had been made..In these circumstances I should have had great difficulty in holding,even if there had been nothing more in the case, that the defendantcould now rely on the express warranty above mentioned
I proceed now to consider the questions, in the first place, whetherthat representation was,, in fact, made; in the second place,whether, if made, it amounted either to a condition or to a warrantyin the eye of the law; and lastly, whether if those two points shouldbe decided in the defendant’s favour the damages awarded to himby the learned District Judge are reasonable.
The answer to the first of these questions depends mainly on theevidence of Mr. Grieve on the one hand and of the defendant onthe other. The learned District Judge has accepted the testimonyof the defendant and rejected that of Mr. Grieve. This findingof the court of first instance is a strong asset on the defendant’sside. The House of Lords in Montgomery v. Wallace-James 1 haspointed out the weight that is due in all matters affecting thecredibility of witnesses to the decision of the tribunal which has had
‘{1904) A. C. 7$.
( 805 )
the advantage of seeing and he&cing them, and there are innumerable* 1915.local judgments to the same effect. But it must be rememberedthat the law gives to litigants in this Colony a right of appeal, in Renton c.J,such cases as the present, against the finding of tne court of firstinstance, even on questions of credibility, and in Khee Sit Nob v. Brown drhim Tkean Tong 1 the Privy Council, while affirming the general rule Go.,above mentioned, was careful to explain that it would not- beapplicable where, in deciding between witnesses, th$ trial Judgehad clearly failed on some point to take account of particular cir-cumstances or probabilities material to an estimate of the evidence,or had given credence to testimony, perhaps plausibly put forward,which turned out on further analysis to be1 substantially incon-sistent with itself or with indisputable facts. The Supreme Courtof this Colony has repeatedly interfered on such grounds as thesewith the findings of courts of first instance on pure questions offact, and even credibility. In the present case it is clear, and thedefendant’s counsel admits, that the learned District Judge indeciding between the evidence of Mr. Grieve and that of thedefendant has misdirected himself in an important particular.
The defendant’s case in brief was that he had an interview withMr. Grieve between August 5 and 13, 1911, that he then specifiedthe machinery for which he required the engine, and that, as hementioned the particulars, Mr. Grieve, jotted them down piece bypiece on the blotting pad before him, made a calculation, and toldhim that a 24 horse power engine would work that machinery.
Mr. Grieve denies that any such interview took place. The learnedDistrict Judge refers to the letter P 2, written by the defendantto the plaintiffs and dated September 2, 1911, in which the formeruses the following language: ” Some little time ago you informed usthat you expected a 24 horse power Hornsby engine very shortly.”
“ This letter,” says the District Judge, “ suggests that some corre-spondence or conversation had taken place at an earlier date. Itmight safely be assumed that correspondence there was nope,for if any existed it would most’ certainly have been produced.”
He elsewhere describes P 2 as the first letter produced which hasany reference to, an “ engine.” This statement is incorrect. Inthe letter D 11 dated August 9, 1911, Mr. Grieve, in writing to thefirm with which the defendant was associated, states that a 24horse power engine was due in a fortnight. This letter was dulyproduced at the trial. It is not surprising that the learned DistrictJudge, in the mass of viva voce and documentary evidence whichhe had to sift, should have overlooked its existence. But that hedid so there can be no doubt. The assumption of fact from whichbe draws a strong inference against the credibility of Mr. Grievewas, therefore, unfounded. If. a Judge in England in charging ajury had fallen into an error of this kind, the misdirection would
* (1912) A. c. m.
1916.
Woon
Renton C.J.
Fradd v.Brown <b(?o„
( 306 )
have formed a good / ground for a new trial. No suggestion was,however, made fco us by either side that this course should beadopted in the present case, and in view of the time during whichthe proceedings have been going on, aud of the fact, mentionedby counsel in the argument, that Mr. Grieve has now retired fromthe plaintiffs’ firm and returned to England, I think that nothingremains but that we should analyze the evidence and decide forourselves whether or not the District Judge was justited in holding,on a point, it must be remembered, as to which the burden of proofwas on the defendant, that the alleged presentation was made.
[His Lordship discussed the evidence at great length, andcontinued]: —
For the reasons, however, thut 1 have given, I am of opinionthat tiiif District Judge was not warranted in holding that thedefendant had affirmatively proved that the representation onwhich he x*elies had in fact been made.
Strictly speaking, our finding on the question whether or notthe representation sued on was made renders it unnecessary forus to consider the other points in the appeal. But as they werefully argued I will say * something about each of them. I am notsatisfied that either the defendant’s advisers at the time when theanswer was drafted, or, indeed, the learned District Judge himself,had clearly before their minds the law applicable to cases of thiskind. The statement of the claim in reconvention in the answer -seems to proceed on the assumption that the “ assurance ’* orrepresentation alleged, if made and acted upon, would per 86 besufficient to bring home liability to the plaintiffs. But that isnot so. A representation, although acted uppn, gives rise to noright of action unless it is fraudulent, or, in the absence of fraud,amounts either to a condition or to a warranty.1 * 3 In the presentcase fraud is not suggested. Whether a representation is a condi-tion or a warranty depends in each case on the construction of thecontract.* In the event of a breach of a condition, the purchaserhas the right either to reject* the thing purchased altogether or totreat the breach of the condition as if it had been a breach ofwarranty. In the event of a breach of warranty, that is, of arepresentation which, although it is only collateral, was intended toform part of the contract, the purchaser would have no right to rejectthe thing purchased altogether, but would be entitled to damages.5Where a contract in writing is not meant by either side to embodyall the terms of their bargain, a verbal warranty may be proved by vivivoce evidence.4 The objection taken by the plaintiffs counsel to the
1 Heilburt Symons dt Go, v, Bucklelon [1913) Appeal Cages 30.
Sale of Goods Ordinance, 1896 (No. 11 of 1896, a. 11 (2)).
3Gillespie Bros. <9 Co. v. Cheney Eggar <£r Co., (1896) 2 Q. B. 59 and 62.
Chalmers Sale of Goods Act, 1.893, pp. 26 and 27, and Evidence Ordinance,
s. 92, proviso 2.
( 307 )
admission of vivd voce evidence for this purpose in the prevent caseis, in my opinion, untenable. Although no issue as to the characterof the representation sued on was formulated at the trial, we havebefore us sufficient evidence to enable us to deal with the .point.I am clearly of opinion that, even if that representation was made,it does not amount either to a condition or to a warranty. Here,as elsewhere, the burden of proof is on the defendant. Therepresentation in question is nowhere in the correspondence asserted,either in terms or in substance, to have been either a conditionor a warranty. It is, to my mind, inconceivable that an engineerof the experience of Mr. Grieve should have undertaken to bindthe plaintiffs in either of these ways on such materials us, on theshowing of the defendant himself, he had before him. Here, again,even if a condition or a warranty had been alleged and proved,the failure of the defendant to adduce any evidence showing thatthe engine at and for some time after its delivery was not in properworking order, and the absence of any written complaint to thateffect in the early correspondence between himself or Mr. Sandsand the plaintiffs, although the latter were pressing him at themoment for payment of their account, would have told heavilyagainst his prospects of success on the facts.
1915.
Wood
Bknton CX
Fradd v.Brown dr
Co., UL
I agree with the finding of the learned District Judge on thequestion of damages, if any damages had been due, for the reasonsgiven by my brother Shaw, whose judgment I have had the advan-tage of reading, and I concur in the formal order which he hasproposed.
Shaw J.—
[His Lordship stated the facts, and continued]: —
The first and most important question arising in this appeal forour consideration is whether the District Judge is correct in hisfinding of fact that the alleged verbal representation was made.
An appeal to an Appellate Court from the decision of a Judgeon a question of fact amounts to a re-hearing, and it is the duty ofthe Court to reconsider the evidence and, whilst attaching thegreatest weight to the finding of the Judge, not to shrink fromover-ruling it if on full consideration it comes to the conclusionthat the judgment is wrong (Coghlan v. Cumberland *).
It has frequently been pointed out that when the question turnson the manner and demeanour of witnesses the Appellate Court,,should generally be guided by the impression made on the Judge whosaw the witnesses (see, e.g., Montgomery & Co. v. Wallace-James *),but there may, as wasv pointed out by Lindley M.R. in Coghlan v.Cumberland^- obviously be other circumstances quite apart frommanner and demeanour which may show whether a statement is’ (1898) 1 Ch. 704.1 (1904) Appeal Caeca 73.
25
( 308 )
1916.
Shaw ,7.
Fradd v.Brown &
credible or not, and those circumstances may warrant the Court indiffering from the Judge, even on a question of fact turning on thecredibility of witnesses whom the Court has not seen. Clearly,also, there may be cases in which it is apparent that the Judge busmisapprehended the facts in evidence before him, and in whichhe has failed to notice, or give due weight to, other fact6 in evidenceliefore him, which tend to support or contradict the verbal evidence.The present is, in ‘my opinion, one of those rather rare cases inwhich the Appellate Court should differ from the Judge on hisfinding of fact, nnd should give effect to its opinion by reversinghis finding.
[His Lordship dealt with the evidence relating to the allegedverbal representation, and continued]: —
In view of these facts I cannot understand how the Judge couldhave arrived at the decision he did upon this issue, and I think hisfinding is wrong and should be reversed.
It was suggested at the hearing of the appeal, that even shouldwe decide that no verbal representation was made, the respondentswere still entitled to recover on the guarantee in the catalogue D 2that the engine would develop 85 per cent, of 28 horse power onliquid fuel. Ixcannot agree to this contention. The respondentmight have amended his answer and raised the question of thisguarantee on the trial, but his counsel deliberately elected not todo so, and preferred to rely solely on the alleged verbal representa-tion. and it is now too late to withdraw from the position taken up.
In view of my opinion on this issue, it i6 perhaps unnecessary forme to refer to the other questions raised in the case, but as theywere fully argued before us, I think I should shortly deal with them.
Even supposing it were true that Mr. Fradd in the course ofnegotiations stated to Mr. Grieve the machinery he wanted towork, and Mr. Grieve told him that a Hornsby engine of 24 or 28horse power would do the work, it by no means necessarily followsthat this representation would amount to a warranty. An affirma-tion at the time of a sale is only a warranty if it appears to be onevidence to be so intended; and the dictum in Gave v. Coleman 1to the effect that a representation made in the course of dealingand before the bargain is complete amounts to a warranty, and thatin De Lassaile v. Guilford,* that it is a decisive test in determiningwhether a representation is intended as a warranty or not 44 whetherthe vendor assume to assert a fact of which the buyer is ignorant,or merely states an opinion or judgment upon a matter of whichthe vendor has no special knowledge, and on which the buyer may •be expected to have an opinion and to exercise his judgment,1*’have been specifically disapproved by the House of Lords in therecent case of Heilburt Symons & Co, t>. Buckleton* and it is now dear1 8 M.& B.2.’ 1 (1997) 2 K, B, 215,8 (1913) App. Cos. 36,
( m )
that an animus coiiiralieiuii on the part of the persou making the 1W5.representation must in all cases be proved. There ought, thereforej,
to have been an issue raising this in the present case, and had there j-jbeen one, I am by no means sure the respondent would have sroumsucceeded on it, it being very unlikely, as Mr. Grieve said in his CoLevidence, that he would have contracted that an engine would worksome particular machinery without having seen the state of themachinery and the manner in which it had been set up.
With regard to the question whether the engine in fact come upto the representation alleged to have been made, the burden of proofwas upon the respondent, and I am by no means satisfied that hehas sufficiently discharged it.
The engine was working for about six months before there wasany complaint in writing that it was not giving satisfaction, althoughthere were, during that time, frequent requests for payment andpromises to pay. Neither Mr. Sands, who was in charge of theworks at this time, nor the engineer who erected the engine for therespondent, nor the engine driver who was working it, was calledto give evidence as to its running, although the two latter were inthe Colony and on the respondent’s list of witnesses. In the absenceof any evidence of the working of the engine during that time, Ido not think that- the breach of the alleged representation wassufficiently proved by evidence that after that time it failed todevelop the horse power or work the machinery represented.
With regard to the amount of damages, if the respondent wereentitled to recover at all, I do not think that the amount found bythe Judge would be improper. The amount is based on the assump-tion that the engine was warranted to work certain machinery,and could in fact only work less, thus restricting the output ofmaterial which could have been sold at a profit at the time. Itseems reasonable that the respondent should have continued towork it during the live months in respect of which the damageswere claimed without- condemning it and buying a fresh engine.
For the reasons given above I would set aside the decree of theDistrict Judge and enter judgment for the appellant for B$. 6,140.83,being the amount of their claim less Bs. 196.28 expense of repairsand alterations to the engine, which I do not think were everintended by either party to be charged for, and I would dismiss therespondent’s claim in reconvention.
The respondent should pay the costs of the trial and appeal.
Set aside.