The Gazette 1974

Claim for breach of warranty in respect of defective

digger allowed but fundamental breach of contract,

and damages for statutory breach under Hire-

Purchase Act rejected.

Plaintiffs, drainage contractors in Nenagh, claim

damages against first defendants, equipment suppliers

in Dublin, for alleged breach of warranty by which

they were induced to enter into a Hire-Purchase agree-

ment with the second defendants in March 1969. They

claim damages against the second defendants for an

alleged breach of the statutory condition of fitness

contained in S.9 (2) of the 1946 Act. The plaintiffs

further pleaded that there was a fundamental breach

°f a term of the said Hire Purchase Agreement, and a

total failure of consideration which entitled them to

rescind. The defendants pleaded that if the machine

concerned was defective, this was due to plaintiffs

own fault and neglect. The second defendants counter-

claimed (1) for £1,518 due for arrears of instalments,

and (2) £1,000 damages for breach of agreement to

^ e p the machine in good repair.

The plaintiffs had purchased a John Deere Digger,

a n

d , while at work, were approached by the first de-

fendants in March 1969. They offered the plaintiff an

P to date Digger, valued at £4,000, for £2,200 on the

understanding that it was overhauled and in perfect

working order. Eventually the plaintiffs agreed to pur-

chase this machine for £1,650, on condition that there

was a "trade in" of their Deere machine for £550.

When the machine was delivered, the plaintiffs signed

Delivery Receipt without reading it, which stated that

fhe plaintiff, having examined the machine had found

in good order and condition. The machine was how-

ever defective, and between March 1969 and January

1970, various parts were ordered and delivered—in-

cluding a reconditioned fuel pump, a gasket kit and a

cylinder head, which came to more than £200. In

January 1970, a reconditioned Tore Pump was ordered,

hut could not be fitted by the mechanic. The plaintics

at this stage could not afford to pay for any further

pairs, and after 3 weeks in a garage, the digger was

k f t as a wreck on the roadside, where it still is: its

condition has of course seriously deteriorated. The plain-

tiffs paid 7 months instalments of £ 66 each in respect

°f the new digger, but then complained about its bad

condition, and that they could not work it, as it had

broken down. It was only in May 1970 that the plain-

tiffs instructed their solicitors to write to the defendants

about this, and the Plenary Summons was issued in

August.

Undoubtedly a warranty was given by the first de-

fendants that the machine was in perfect working order

nd that it had been overhauled. However, from the

defects which appeared subsequently, it is evident that

fbe machine was not in perfect order when it was

delivered, and that there had therefore been a breach

°f warranty. But these defects did not amount to a

fundamental breach of contract or to a breach of the

statutory condition of fitness under S.9 (2) of the Hire

purchase Act 1946 that the machine was reasonably

ut, as it was used by the plaintiffs on and off for ten

^on t h s; the trouble with the cylinder and with the Tore

"ump were not apparently due to any defect in the

JUachine at time of delivery. Furthermore the first de-

fendants were never told by the plaintiffs that the con-

t a c t was at an end, and that they could take back

fhe machine. The plaintiffs could not rescind the con-

t a c t , as they were too late, not having repudiated the

contract within a reasonable time of becoming aware

of the breach of condition.

The claim against the second defendants, the Hire

Purchase Company, must fail, as no breach of statutory

condition has been established. The Hire Purchase

company is entitled to judgment for £1,518 for the

balance of instalments due, but the machine remains the

property of the plaintiffs.

As regards damages, for breach of warranty against

the first defendants, the plaintiffs were bound to take

all reasonable steps to mitigate their loss, which they

did not do, they should have terminated the Hire Pur-

chase agreements. The damages in respect of defective

items of equipment amounts to £140 plus £40 paid to

the garage proprietor, the total damages, including loss

of contracts, were assessed at £405. Accordingly a

claim of £405 is allowed against the first defendants,

and the action against the second defendants is dis-

missed, and their counterclaim for £1,518 granted.

(O'Meara and McCarthy v. Equipment Sales [Ire-

land] Ltd. and Allied Irish Finance Co. Ltd.—Pringle

J.—Unreported—10 October 1973.)

Plaintiff builders awarded

£6,000

without interest

for balance due on erection of house, but counter-

claim for alternative accommodation allowed

Plaintiff Building Company sue defendants for

£6,000, being balance due on foot of a written con-

tract of August 1969 under which plaintiffs agreed to

build a dwellinghouse on a plot in Sutton, Co. Dublin.

Plaintiffs also claim interest on £6,000 at 8£% per

annum from June 1970.

Plaintiffs contend they built the dwellinghouse in

accordance with the specifications, save clause 61,

which related to the provision of an insulating internal

wall. As this was not done, plaintiffs paid defendant

£350 compensation. Defendant alleges house was never

completed in accordance with specifications. Plaintiffs

were building 78 houses on the site, and defendant,

who was a surveyos, constantly inspected his proposed

dwelling. As a result of discussion, in June 1970 the

two parties obtained estimates for the insulation, the

defendant's one amounting to £620, and the plaintiff's

one to £336, eventually it was agreed defendant would

receive £350, which was duly sent. Pringle J. is satisfied

that this sum was not paid for omitting to insulate the

ceilings, but only the walls. The house has remained

vacant for 3 years due to the omission to instal insula-

tion in the ceiling. Undoubtedly at this time the plain-

tiffs were in breach of contract, and consequently not

entitled to claim any interest. By refusing to carry out

their contract, the plaintiffs have at law abandoned

the contract; consequently they are not entitled to the

payment of any balance outstanding. The plaintiffs

accordingly are entitled to judgment for £6,000. The

defendant is entitled to a total counterclaim of £263,

plus a claim of alternative accommodation for 15

months at £70 per month totalling £1,050; during

that period, he must offset the use of the balance of

£6,000 which, at interest at 6% amounts to £450. This

must be deducted from £1,050, leaving £600. To this

must be added the counterclaim of £263, already re-

ferred to, making a total of £863.

(Kincora Builders Ltd. v. Cronin, Pringle J. unre-

ported, 5 March 1973.)

Administration of several premises in Finglas

Patrick Flood died on 13 January 1955, leaving his