Joseph Marius Claimant v Patrick Morille Defendant [ECSC]
| Jurisdiction | St Lucia |
| Judge | Edwards J:,Edwards J |
| Judgment Date | 14 June 2005 |
| Judgment citation (vLex) | [2005] ECSC J0614-2 |
| Court | High Court (Saint Lucia) |
| Docket Number | Claim No. SLUHCV 1998/0967 |
| Date | 14 June 2005 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(Civil)
Claim No. SLUHCV 1998/0967
Edwards J: Mr. Joseph Marius is a taxi driver and mini-bus owner. He provides transportation for tourists to and from Vieux-Fort.
On the 9th March 1998 he completed purchasing a used 1992 14 Seater Nissan Caravan 2700 c.c. Diesel Engine bus for $50,000.00 from the Defendant Mr. Patrick Morille.
Mr. Morille then, had been operating a business registered as Hardest Novelty since September 1997. He sold foreign used vehicles from Japan.
There is disputed evidence as to whether Mr. Marius had expressed interest in purchasing this bus for his taxi operations, sometime in February 1998, and had taken possession of this bus on the 3rd March 1998 to have it sprayed.
There is disputed testimony as to what date Mr. Marius paid a deposit of $10,000.00 on the bus. The parties agree that on the 9th March 1998 Mr. Marius paid the balance of $40,000.00 on the bus.
Mr. Marius has not denied that prior to finalizing the purchase, Mr. Morille on 2 occasions told him that the bus had not yet been serviced, or that on each occasion Mr. Marius had told Mr. Morille it was okay, and assumed the responsibility to have it serviced.
Mr. Morille by Cabinet Decision dated 2nd October 1996, was mandated to offer Mr. Marius a warranty on this used bus for 3 months or 3000 miles whichever was sooner. This Warranty was limited to the engine and transmission. It is disputed whether the recorded mileage on the odometer at the time the balance of the purchase price was paid was 63,296 Km or 39,332 miles.
Between the 9th March, and the 14th March 1998, the rear heater of the bus which was connected under the seat, was disconnected, unscrewed and removed by Mr. Michael Albert a driver and employee of Mr. Marius.
On Mr. Albert's first trip to Vieux-Fort, with the bus it overheated. Mr. Albert took the bus back to Mr. Morille who changed the thermostat, spray washed the radiator, drained and replaced the coolant in the engine.
A few days later, the bus was again returned to Mr. Morille for the same overheating problem. Mr. Morille sought the assistance of a mechanic Mr. Donovan Lord, changed the cylinder head gasket, ordered new parts and then replaced the water pump and clutch fan of the bus.
Subsequent to this, the bus continued overheating and was returned to Mr. Morille more than once. Upon the flushing of the radiator at Denbow Radiator Repair, and further work done by Mr. Morille, the bus continued to malfunction, working with a big rev, while having no power.
The situation came to a head around the 30th May 1998 when Mr. Marius returned the bus to Mr. Morille and subsequently refused to accept it, ordering Mr. Morille to sell it and return the purchase price to him.
There was an impasse between the parties which, resulted in Mr. Morille on the 1st June 1998 parking the bus in front of Mr. Marius' driveway, leaving the keys in the bus.
By letter dated 3rd June 1998, Mr. Marius' lawyers communicated with Mr. Morille. He was informed that legal action would be taken if he failed to remedy the problems with the bus or replace it with one of a similar specification by the 15th June 1998.
By letter dated 9th June 1998, Mr. Morille's lawyers replied, explaining Mr. Morille's version of the events, and stating that the problem with the vehicle had been sorted out, and the vehicle was in perfect working condition.
Having obtained 2 independent assessments of the said bus subsequent to this letter, Mr. Marius concluded that the engine of the bus was defective. Since Mr. Morille had refused to collect this bus, and Mr. Marius had previously said he had rejected it, Mr. Marius stored the defective bus, and bought a new bus on the 26th August 1998.
Mr. Marius subsequently, brought this action on the 2nd October 1998 for breach of the Oral Agreement made on the 9th March 1998.
Mr. Marius seeks to recover a refund of the purchase price, special damages for loss of earnings amounting to $68,400.00, general damages, interest, costs and further or other relief.
By the Defence filed on the 28th October 1998, Mr. Morille has denied breaching the contract.
Mr. Morille pleaded among other things, that Mr. Marius' driver on collecting the bus from him removed the rear heater and left the disconnected hoses hanging and opened. That this contributed to the problem with the vehicle which Mr. Marius resolved. Further, that Mr. Marius had exhausted the 3,000 miles warranty at the time he complained, having had possession of the vehicle one week before full and complete payment had been made.
Mr. Marius' Reply included a denial that the 3000 miles warranty had been exhausted on the 14th March 1998, when the bus was returned to Mr. Morille because of the overheating problem detected on the 13th March 1998.
The issues raised by the pleadings evidence, law and submissions of Counsel are:
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1) On what date did Mr. Morille transfer to Mr. Marius the general property in the bus? (See paragraphs 23 to 32 of Judgment)
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2) Was the 3000 miles warranty exhausted on the date the complaint was first made to Mr. Morille about the overheating problem? (See Paragraphs 33 to 42 of Judgment)
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3) Did the removal of the rear heater contribute to or cause the engine of the bus to overheat? (See Paragraphs 43 to 75 of Judgment)
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4) Whether or not there was an implied condition that the bus should be of merchantable quality. (See Paragraphs 76 to 80)
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5) Whether or not there was a defect in the bus covered by Statutory Warranty, or the Warranty under the Contract, or a Merchantable quality "implied condition"? (See Paragraphs 82 to 101)
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6) What remedies or damages if any, are available to Mr. Marius? (See Paragraphs 103 to 135).
Mr. Marius testified that he received (Exhibit "JM 4") a receipt No. 0132, dated 9th March 1998 from Mr. Morille after he had paid Mr. Morille the balance of $40,000.00 for the bus. His testimony that prior to the 9th March 1998, he had no discussion with Mr. Morille about purchasing the bus, conflicts with his evidence concerning the date he would have paid the deposit of $10,000.00 to Mr. Morille.
It appears from his testimony that after paying a deposit of $10,000.00, he used Mr. Morille's demonstration plate and drove the bus to a mechanic for body work to be done to the damaged portions of the bus. Mr. Marius testified that the bus spent 4 days for body work and then he returned the bus to Mr. Morille, and paid him the balance of $40,000.00.
In light of the inconsistencies in Mr. Marcus' testimony, I accept the evidence of Mr. Morille, and find the following facts –
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(1) At least 4 days prior to the 9th March 1998 Mr. Marius had deposited $10,000.00 on the purchase price of the bus.
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(2) Prior to the 9th March 1998, Mr. Morille permitted Mr. Marius, at his request to take the bus to have it sprayed.
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(3) Prior to the 9th March 1998, on 2 occasion Mr. Morille informed Mr. Marius that the bus needed servicing.
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(4) Mr. Marius assumed the responsibility to have the bus serviced prior to and on the 9th March 1998.
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(5) Mr. Marius had made up his mind to buy the bus regardless of its condition, before he finalized the purchase on the 9th March 1998.
Article 305 (1) of the Commercial Code, Chapter 244 states that "Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract."
Article 305 (2) states that "Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound on request to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract".
Article 306 of the Commercial Code provides -
"The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller…". (My emphasis)
Applying this law to the evidence and facts found, I deem Mr. Marius to have accepted the bus on the day that the bus was delivered to him for spraying. By spraying the bus before paying the full purchase price, he did an act in relation to the bus which was inconsistent with the ownership of Mr. Morille. I find also that Mr. Marius had a reasonable opportunity to examine the bus and ascertain whether it was in conformity with the contract.
I am dealing here with a used bus which was identified and agreed upon at the time the deposit of $10,000.00 was paid on the purchase price. Article 288 of the Commercial Code Chapter 244 states –
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"(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
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(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case ".
To discover what Mr. Marius and Mr. Morille intended I am guided further by Article 289 of the Commercial Code which provides -
"Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer:-
RULE 1 — Where there is an un conditional contract for the sale of specific goods, in a deliverable state, the...
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