Rattan v H.E. Robinson & Company Ltd

• Jurisdiction: Caribbean States
• Judge: Rennie, J.,Archer, J.,Lewis, J.
• Judgment Date: 03 December 1959
• Court: Federal Supreme Court (West Indies)
• Docket Number: 8 of 1959
• Date: 03 December 1959

Federal Supreme Court

Rennie, J.; Archer, J.; Lewis, J.

8 of 1959

Rattan

and

H.E. Robinson & Co. Limited

Appearances:

Mr. J. A. Wharton, Q.C, and Mr. T. Hosein, instructed by Mr. J. A. LeBlanc, for the plaintiff.

Mr. E. Hamel Wells, instructed by Messrs. J.D Seller & Co., for the defendant.

Misrepresentation - Appeal against judgment — Plaintiff bought a power saw under hire purchase agreement — Plaintiff contended that he bought the devise on the representation that it would be fit for ripping 41/2 inch planks — Whether or not there was a condition or warranty — Appellant entered into the agreement upon the faith of the representation made to him — Appellant entitled to refund — Judgment of the Lower Court set aside — Judgment for the appellant.

Rennie, J.

1 This appeal has reference to a hire purchase agreement for the hire of a power saw.

2 The appellant claims that prior to the completion of the agreement the respondents by its agent, represented to him that the saw was suitable for the purpose of ripping planks up to a thickness of 4 ¹/₂ inches and that he entered into the agreement and paid $1,000.00 upon the faith of the representation so made to him. The respondent denied that anyone on its behalf made such a representation to the appellant, but went on to state that, prior to the completion of the agreement its agent asked the appellant what was the purpose for which he intended to use the saw and the appellant told him it was for re-cutting boards into laths and cutting waste pieces of wood and various timber of that description whereupon its agent advised the appellant that the saw would be suitable for that work. It is within this area conflict that the real ground of appeal lies.

3 The learned trial judge dealt with this conflict in the following passage of his judgment:–

“The questions which now fall to be decided are: –

• (1) Did the plaintiff make known to the defendant company the purpose for which he required the Saw?

• (2) Did the company hold out to the plaintiff that the Saw was suitable for that purpose and was the plaintiff thereby induced to purchase? and

• (3) Was there a breach of this warranty?

  The answers to (1) and (2) rest entirely on a question of fact dependent on whether one believes the evidence of the plaintiff or that of Fraser. In my view, neither of these witnesses has given a complete and accurate account of the conversation which took place at their first meeting nor of the details about the Saw which they discussed. It is significant, for example, that no where in his evidence does the plaintiff say that he told Fraser he wished to cut boards up to 4” thick but merely that he wished a Saw ‘for ripping boards and planks into scantling’.

  Fraser, on the other hand, while he specifically denied that the plaintiff had said he wished to cut hard wood up to 4” or that he has assured him that this machine could do so, admitted that he had given plaintiff a pamphlet which specified the ‘Maximum cut of the Saw as being 4 ¹/₂”.’ He explained that this phrase means the clearance of the Saw blade above the table and is the maximum depth of wood the markers would expect the Saw to cut; but added the qualification’ certain types of wood’. When pressed further in cross-examination he said although he had never told plaintiff it would only cut certain types of wood up to 4” that in fact it would only be expected to cut soft wood of that size. It is difficult to reconcile this with the fact that when he tested the Saw at the mill he did so on hard wood of 3” and 4” thickness.

  Did he, in other words, induce the plaintiff to believe that the Saw could cut hard wood up to 4” thick, and, if so, was there a misrepresentation. On review of the evidence as a whole I am not satisfied that the plaintiff has established that he made it known to Fraser that he wanted to cut ‘hard wood’ up to 4” thick and that Fraser warranted it fit for that purpose and I so find the answers to questions 1 and 2 are, therefore, in the negative”.

4 Looking at that passage and at the rest of the judgement it would seem that he oversighted the fact that a witness, Sanford Dulson, also gave evidence concerning the conversation that took place prior to the entering into the agreement. The position then is that on the one side there is evidence of the appellant who said:– “I spoke to Fraser. I told him I was interested in that saw as I needed one for ripping boards and planks into scantling. He said that saw could rip up to 4 inches planks. I asked price. He showed this pamphlet and said the could cut and mitre.”

5 And to that evidence must be added that of Sanford Dulson who said: –

“Rattan then said he was interested in a machine to cut up local hard wood like mora, etc., into all types of scantling. Fraser said that saw was just the type of machine. We went into the office with Mr. Fraser where he showed us a catalogue. Fraser said machine could do mitre work and cross-cutting apart from ripping. Fraser said it could cut up to 4 ¹/₂ inches.”

6 On the other side Fraser, a witness for the respondent, said:– “Rattan looked at a saw in the store and asked me if it would be suitable for cutting laths from boards. I said yes I thought it would do the job.”

7 Those are the bits of evidence of the conversation, two of which are referred to by the learned trial judge. Concerning that evidence he said neither the appellant nor Fraser gave a complete or accurate conversation. To be able to so describe their evidence he must have had some other evidence to guide him. Can it be he was considering Dulson's evidence without mentioning him? If he did his description of the appellant's evidence is understandable. It was not complete and it was not accurate in that it omitted to mention local hard woods like mora, etc. But I am unable to find any help any where that could explain his description of Fraser's account of the conversation. Fraser's account is inconsistent with the other evidence in the case and if it is inconsistent with the other evidence in the case and if it is inaccurate it should be properly described as false. Apart from this description of Fraser's evidence there are the four following facts or circumstances:–

• (1) He gave the appellant a pamphlet which specified the maximum cut of the saw as being 4 ¹/₄ inches. This is...