Astley Industrial Trust Ltd v Grimley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PEARSON,LORD JUSTICE UPJOHN,LORD JUSTICE ORMEROD |
| Judgment Date | 08 March 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0308-1 |
| Court | Court of Appeal |
| Date | 08 March 1963 |
[1963] EWCA Civ J0308-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Upjohn and
Lord Justice Pearson
Mr G. Vaughan-Davies (instructed by Messrs Kanter, Jules & Co.,agents for Messrs Boote, Dutton & Whittaker, Manchester) appeared as Counsel on behalf of the Appellant (First Defendant).
Mr J. Hugill (instructed by Messrs J.E. Lickfold & Sons, agents for Messrs Taylor, Hindle & Rhodes, Manchester) appeared as Counsel on behalf of the Respondents (Plaintiffs).
Mr L.A. Cohen (instructed by Messrs Gibson & Weldon, agents for Messrs Grover, Smith & Moss, Manchester) appeared as Counsel on behalf of the Respondents (Second Defendants and Third Parties).
Lord Justice Ormerod: I will ask Lord Justice Pearson to deliver the first Judgment.
This is a hire purchase case relating to a used tipping lorry. The Plaintiffs are the finance company;the First Defendant was the hirer; the Third Parties (also made Second Defendants at a late stage of the pleadings) were the dealers. The finance company bought the lorry from the dealers and let it on hire purchase to the First Defendant. In the action the finance company claimed, in addition to some arrears of hiring rent which were admittedly owing, a sum of £212. 18s. 2d. as damages for wrongful termination of the hire purchase agreementby the First Defendant. In his defence the First Defendant pleaded that it was an implied condition and/or fundamental term that the said lorry was reasonably fit for the purpose for which it was hired, and that in breach of the condition or fundamental term the lorry was not so fit, and consequently he was entitled to terminate the agreement. He also counterclaimed £55. 19s. 0d. damages for money spent in attempting to rectify the defects, and sought to set off that sum against the finance company's claim. Also the First Defendant served a third party notice on the dealers, and his claim can be summarised shortly as being (1) for damages for breach of an express warranty by the dealers as to the fitness of the lorry for the First Defendant's purpose, and(2) for damages for breaches of contracts to repair the lorry. The finance company pleaded a defence to the First Defendant's counterclaim, and the dealers pleaded a defence to the Third Party notice.
The learned County Court Judge held that, as between the finance company and the First Defendant, there was an implied condition or fundamental term to the effect that the lorry should be usable as a tipping lorry, but that there was no breach. Accordingly, he gave judgment for the finance company against the First Defendant for £212. 18s. 2d. damages, as well as for the admitted sum of £18. 5s. 5d. arrears of hiring rent, and he dismissed the First Defendant's counterclaim. With regard to the First Defendant's claim under the Third Party notice against the dealers, he held that no warranty was given by the dealers,and he dismissed the whole claim, not dealing specifically with the alleged breaches of contracts to repair the lorry.
The First Defendant appeals both against the decision in favour of the finance company on the claim and counterclaim, and against the decision in favour of the dealers as third parties.
I should add, for the sake of completeness, that the finance company joined the dealers as Second Defendants, claiming to be indemnified in respect of their loss if the First. Defendant's defence and counterclaim should succeed, and now the finance company have given a notice of appeal involving the same contingent claim against the dealers. The question, however, did not arise in the Court below, and does not arise in this Court unless the First Defendant's appeal against the decision in favour of the finance company succeeds.
The main facts are as follows. On Saturday, the 23rd April, 1960, the First Defendant, having been attracted by one of the dealers' advertisements, went with his brother to the dealers' garage and spoke to a man named Wilfred Callister, whose exact position does not appear from the evidence but he evidently had authority to act on behalf of the dealers. The First Defendant told Callister that he was looking for a tipping vehicle, and wanted one capable of carrying ten tons of hard core or other filling materials; that he was already a haulage contractor with a "B" licence and pretty well established, and wished to expand his business and therefore wanted a tipping vehicle; and that he had arranged to start work on the luonday morning (25th April, 1960) in connection with some operations being carried out at Barton Bridge near Manchester. The First Defendant was shown several tipping vehicles, and eventually, as he said in his evidence, he put his cards on the table, telling Callister that he had not been tipping at all, and his price was between £500 and £700, and he was asking what wouldbe the best. Callister took him over to a used Bedford tipping lorry, and said something to the effect that "that was definitely the cne he would get the most satisfaction from". The vehicle was about six years old, and the cash price was£525,whereas the price of a new lorry of the same type would have been £1,600. The First Defendant, with one of the garage mechanics, took the vehicle for a run, and he noticed certain defects, principally that, when the vehicle was stopped and restarted, the clutch was very fierce and the starter failed to operate. He mentioned these defects "o Callister, and Callister said: "That can be put right over the week-end", and he added that his mechanics would work over the week-end and the vehicle would be ready for work on Monday.
Thereupon, the First Defendant paid a deposit of £140 and signed a hire purchase agreement form, putting on it the date 25th April, 1960, though he signed it on Saturday, the 23rd April', That was his offer, and it was accepted by the finance company also signing it, probably on the 25th April, 1960, as that date was not altered. Also on the 23rd April, 1960, the First Defendant signed a delivery form. I will refer later to the provisions of the hire purchase agreement and the delivery form.
On the Monday, 25th April, the First Defendant's brotaer brought the vehicle from the dealers' garage, and the First Defendant saw it later in the day and found the same defects in the clutch and the starter and an oil leakage in the tipping gear. He took it back to the dealers, and eventually saw Callister and complained to him of the continued existence of the defects, saying that nothing had been done. Callister said at first that he would need the vehicle for at least a week, but later said it would be ready by Saturday (30th April), and he said he would give it a complete check over and it would be right by Saturday. The First Defendant, accordingly, left the vehicle at the garage to be checked over and put right.
When he came to take the vehicle on Saturday, the 30th April, he found it in no better state. In his words, the clutch was still juddering, the starter was exactly the same, and they had not done the gear box. He had, however, arranged to start work on the following Monday, 2nd May, on the Llanwern site, near Newport in Monmouthshire. He took the vehicle under protest, telling the dealers that they would hear more of it.
He drove the vehicle on a journey of about 150 miles from Manchester to the Llanwern site, and there is no evidence of the vehicle giving any trouble on that journey. Having arrived at the Llanwern site, he went, presumably on the Monday, 2nd May, with the vehicle to the quarry from which loads of hard core were to be obtained. He took the first load. When he tipped the load, oil gushed out. On the same day, 2nd May, he took the vehicle into Larecombe's garage. A new grasket was put in the tipping gear box, and this appears to have cured the oil leakage because there is no evidence of any oil leakage afterwards. The First Defendant arranged with Larcombe that the vehicle should be taken in for a full service and thorough overhaul at the end of the week. During the week the First Defendant carried ten loads, whereas he would have expected to carry seven or eight loads a day, and he said that he was nursing the vehicle
The work on which he was using the vehicle was very heavy work, such as might wear out even a new tipping lorry in a short period. Presumably, the lorry fetching hard core from a quarry would have to manoeuvre on an irregular and very hard surface, and thus would undergo severe strains and stresses. The learned Judge said in his Judgment; "I have evidence that this type of work can smash a new lorry in six months". He may well have had such evidence, though it does not appear in the notes of evidence. In the notes of the cross-examination of the Plaintiff there is this passage: "The work was rough, but I would not say a new lorry could be worn out by it in six months. I knowthat vehicles have been abandoned at the Llanwern site, but they are not wrecks after six months. I did see two or three fairly new lorries left abandoned but I made no enquiries myself for lorries lying about. I agree that I took a six year old lorry for rough work".
The vehicle was taken in to Larcombe's garage at the week-end (6th or 7th May), and remained there till the following Thursday (12th May). Larcombe made a thorough examination and found numerous defects. Three of the road wheels were cracked and unserviceable, the safety bracing on the tipping gear was cracked 90 per cent through, there was a broken main spring and a broken helper spring, and the hand brake was defective. There was a crack in the main chassis in front of the main spring hanger, and this was net a new crack, as grime had to be removed to see it. The starter ring had a number of teeth missing or badly worn. There was a violent...
To continue reading
Request your trial
- Ampang Motors Ltd and Another; Dorothy Kwong Chan
-
Farnworth Finance Facilities Ltd v Attryde
...number of implied terms which are of fundamental importance, These cases are: ( Yeoman Credit Ltd. v. Apps 1962 2 Q.B. 508); Astley Industrial Trust. Ltd. v. Grimley (1965 1 W.L.R. 534), ( Chaterhouse Credit Co. Ltd. v. Tolly 1963 2 Q.B. 683). These cases show that it in an implied conditio......
-
Charterhouse Credit Company Ltd v Tolly
...Donovan, and as he has fully set out the facts I shall not advert to them further. 28 As I recently stated in the case of Astley Industrial Trust Ltd. v. Grimley,in my Judgment there are normally two stipulations to be implied in the hiring or hire-purchase of a motor vehicle in circumstanc......
-
Suisse Atlantique Société d'Armement Maritime S.A. v N.v Rotterdamsche Kolen Centrale (Silvretta.)
... [1953] 1 W.L.R. 1468; Karsales (Harrow) Ltd. v. Wallis [1956] 1 W.L.R. 936: Yeoman Credit Ltd. v. Apps [1962] 2 Q.B.D. 508: Astley Industrial Trust v. Grimley [1963] W.L.R. 584: Charterhouse v. Tolly [1963] 2 Q.B.D. 683 and U.G.S. Finance Ltd. v. National Mortgage Bank of Greece [1964] 1 ......
-
Cases referred to in 1965
...322 Associated Distributors Ltd. v. Hall (1938) 1 All E.R. 511; (1938) 2 K.B. 83. 312 Astley Industrial Trust Ltd. v. Grimley (1963) 2 All E.R. 33, 40. .................... 313 Attorney-General of Ceylon v. Perera (1953) A C 200 ..................................... 211 Baide v. Adoki (1930......
-
Exculpatory Clauses
...a straightforward matter of construction. The views expressed by Lords Reid and Upjohn were, however, more complex. Indeed, it may be [1963] 1 WLR 584 (CA). 22 Above note 12. And see R Brownsword, “ Suisse Atlantique Société d’Armement Maritime S.A. v N.V. Ratterdamsche Kolen Centrale (1966......