Farnworth Finance Facilities Ltd v Attryde
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 13 April 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0413-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 April 1970 |
[1970] EWCA Civ J0413-2
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiffs and second defendants (King's Motors (Oxford) Limited) from Order of His Honour Sir Owen Temple-Morris, Q.C., at Cardiff County Court on 11th July, 1969.
The Master of The Rolls (Lord Denning)
Lord Justice Fenton Atkinson and
Lord Justie Megaw
Mr. A. HAMILTON (instructed by Messrs. Sinclair, Roche & Temperly, Agents for Messrs. Vanghan & Roche of Cardiff) appeared on behalf of King's Motors (Oxford) Ltd., second defendants, appellants.
Mr. T.J.F. HOBLEY (instructed by Messrs, Graeme Kemp & Co.) appeared on behalf of the plaintiffs.
Mr. EDWARD CAZALET (instructed by Gwilym Richards & Co.) appeared on behalf of the first defendant.
Mr. Attryde is a civil servant employed by the Ministry of Aviation at Aberporth in Cardiganshire. In 1964, when he was aged 23, he wanted a new motor-cycle. He read an advertisement issued by the Enfield Company and decided to get a Royal Enfield Interceptor. He went to dealers, Kings of Wolverhampton. They got a machine from the makers and supplied it to him on hire-purchase terms. The finance company was Farnworth Finance Facilities Limited of Cardiff. The dealers had the forms in their office at Wolverhampton. Mr. Attryde signed them and took delivery of the machine. The cash price was £427 5s. 10d. The finance charges were £39 16s. 10d. Add £1 option to purchase. Thus making a total hire-purchase price of £513 Is. 10s. He paid £155 5s. 10d. down, with instalments payable over the next three years of £10 1s. 0d. a month.
Mr. Attryde took delivery of the machine on 11th July, 1964. But he had a lot of trouble with it. He took it back to the dealers. They tried to correct the faults, but did not succeed. So he took it back to the makers, the Royal Enfield Company at Roddithh. They had it for nine days - from 21st to 31st July, 1964. They remedied some defects, but they did not succeed in remedying all the faults. On 13th August he took it back again to the manufacturers. They had it this time for some weeks. He did not get it back till 15th October, 1964. They had remedied some defects, but not all. He used it for five weeks, from 15th October to 23rd November. But he found that there were still serious faults. The last straw was on Saturday, 21st November, 1964. As he was turning out from a drive, the rear chain broke. The broken chain knocked a hole in the crank case and caused considerable damage. It would be a very expensive repair. He decided that he would not go on with it any further. He wrote on Monday, 23rd November, 1964:
"I am not making any furtner effort to get Enfields or things to put things right. I have tried hard enough and got nowhere. Oviously I will not continue to pay hire charges for a machine I cannot use and which has been a trouble - some burden ever since I've"had it. Please come and repossess the "bike you will find it at the address given at the start of this letter".
That was his address in Cardiganshire. So there, being utterly disappointed, he rejected the machine.
It was a big loss to him: for he had paid £155 10s. 0d. down. He had paid four instalments of £10 1s. 0d. So he had paid £195 14s. 0d. The Finance Company, or someone on their behalf, came and took possession of the machine. They sold it for £142 5s. 0d. They then sued him for a further £149 1s. 0d.
He a longer had the motor-cycle, and ho was now being sued for a further £149 1s. 0d.
Mr. Attryde resisted the claim on the ground that the Finance Company had been guilty of a fundamental breach of their obligations under the contract. He put in a counter-claim for his own loss. The Finance Company said that, if they were in breach, they could claim indemnity from the dealers, Kings of Wolverhampton. So they joined Kings as defendants.
The action was tried by Judge Temple-Morris at Cardiff. He accepted Mr. Attryde's evidence in its entirety. Mr. Attryde had written letters giving full details of all the troubles. These were quite accurate. The defendants had not adduced any satisfactory evidence in answer. They had only called a Spares Manager who knew very little about the machine. He had only given it a road test. He had ridden it at 60 to 70 miles an hour and said weakly it was "not satisfactory". In the light of all the evidence, the Judge found that the machine was not roadworthy at the time of the purchase. The items of complaint, he said, made up a fundamental breach. He adopted the words of one of the witnesses that "it was disgusting for a new machine". The Judge found that Mr. Attryde had not affirmed the contrac and was entitled to reject the machine. He was not liable to the Finance Company. On the contrary, he was entitled to damage against them on his counterclaim. He awarded him the money he had paid down - £155 5s. 10d. and the four instalments of £10 1s. 0d. That is £195 9s, 10d. in all. The Judge held theFinance Company were entitled to be indemnified by the dealers, Kings of Wolverhampton.
Now the dealers appeal to this Court. They take up the cudgels for the Finance Company. They say that the Finance Company were not liable to Mr. Attryde and so there is no call for an indemnity. The issues depend very much on the terms of the contract between the parties. The printed form contains two contracts. One is between the dealers and the Finance Company, whereby the dealers sell the machines to the Finance Company. The other is between the Finance Company and thehirer, whereby the Finance Company let out the machine to Mr. Attryde on hire purchase terms.
The contract between the dealers and the Finance Company is at the bottom of the form:
"We hereby offer to sell the said vehicle to you for the cash price stated above. The said vehicle conforms in all respects with statutory requirements and is in a roadworthy condition".
That contract by the dealers is clear and unequivocal. They promise that the machine is roadworthy.
The contract between the Finance Company and the hirer is at the top of the form. It contains several conditions purporting to exempt the Finance Company. I will read the material ones:
"The Hirer further expressly acknowledges that………….
He has examined the said vehicle and found it in good order and condition,
4. The said vehicle is supplied to him subject to no conditions or warranties whatsoever expressed or implied save those (if any) that are implied where the hire purchase price does not exceed £300 by virtue of the Hire Purchase Acts….
5. The said vehicle is not supplied subject to any condition that the same is fit for any particular purpose".
The schedule gave this description of the vehicle:
"Royal Enfield Interceptor Motor Cycle c.c. 736 New or Secondhand". Answer "New".
We have in this case to apply the principles about fundamental breach, which wore recently considered by this Court in Harbutt's Plasticine. (1970 2 W.L.R. 199). The first question is whether the finance company were guilty of a fundamental breach. The second question is whether, if there was a fundamental breach, Mr. Attryde affirmed the contract.
As between the finance company and the hirer, there was no express term about the condition of the machine. But there ware implied terms. It has been established by a series of cases in this Court that, in a hire-purchase agreement of a motor vehicle there are a 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 condition that the machine should correspond with the description and that it should be reasonably fit for the purpose for which it was hired: which moans, of course, that it should be roadworthy. In addition,...
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