Supreme Court
Action No. 243 of 1979
10th February, 1983.
Moe, C.J.

Mr. J. C. Gray, for the Plaintiff.
Mr. Derek Courtenay S. C., for the Defendant.

Agency - Defendant company promising through its agent that Plaintiff was purchasing an outboard motor engine in first class working condition - Engine later giving trouble - Plaintiff returning engine to Defendant Company and suing for return of purchase price of engine - Whether Defendant Company made binding representations through its agent which animated Plaintiff to purchase engine - Whether representations made on behalf of Defendant Company by its agent amounted to a right of rejection.

J U D G M E N T

The Plaintiff bought a 60 horse power Evinrude outboard motor engine from the Defendant for $1,400 on the 10th April, 1978 and accepted delivery in the early part of May. He first used it on the 24th May, 1978 when it started easily, but later shut off. He experienced the problem that the engine would start, work for a while, then shut off, but not if run at half speed. A few days after, he used the engine again and had similar problems and the engine ran hot. He eventually returned the engine to the Defendant on the 17th June, 1978 and now seeks the return of the $1,400 which he paid for it.

He claims that at the time of the offer for sale the Defendant represented to him that the engine was in first class working condition and that if that was not so, he would get his money back. The Defendant denies making any such representation. I accepted the Plaintiff's evidence that he had a conversation with a person who works with the Defendant company about an engine which he understood the company had for sale. Sometime after, Mr. Keller, a director of the Defendant company came to the dockyard where the Plaintiff works asking for the man who was interested in the engine. The Plaintiff identified himself. Mr. Keller said, " I ask $1,400 for the motor. The motor is in first class working condition and if the performance not satisfied (satisfactory), your money back". Mr. Keller arranged how the money was to be paid. The Plaintiff paid the money. Mr. Keller received the money. He then told the Plaintiff to come for the motor. I thus found that through its agent, Mr. Keller, the Defendant made the representation claimed.

I then turned to the question of the effect of the representation. As the authorities show an affirmation can only amount to a binding promise provided it appears on the evidence to have been so intended. And the intention of the parties can only be deduced from the totality of the evidence. See Heilbut, Symons & Co. v. Buckleton [1913] A. C. 30 and Oscar Chess Ltd. v. Williams [1957] 1 A. E. R. 325. I took into account the evidence that at the time of the sale, the Plaintiff, the purchaser had not seen the engine, was told about it sometime previously by another agent of the Defendant and that that other agent and Mr. Keller who made the representation, had operated the engine. That in these circumstances, the Defendant by its agent was making a statement of fact which was or would have been within Keller's own knowledge and one of which the Plaintiff was not aware. Further, that the Plaintiff acted on the representation made. He accepted the arrangement to pay for the engine even before he had seen it. As he said, " I bought the engine on the understanding it was in first class working condition". He relied on Mr. Keller's word. I found there was an intention on the part of the Defendant that the Plaintiff would act on Mr. Keller's statement. With Mr. Keller intending the Plaintiff to act upon it and the Plaintiff acting upon it, I concluded the Defendant made a binding promise.

Now, was that promise breached? It was easy to conclude that an engine functioning in the way it did ,as set out above, is neither in first class condition nor is performing satisfactorily. The Plaintiff has established his claim.

Since it was specifically promised that if the engine did not perform satisfactorily, the Plaintiff would have his money back, I held that the Defendant's promise amounted to a condition giving the Plaintiff a right of rejection. The Plaintiff was entitled to exercise his right of rejection of the engine in due time. He sought to do so about ten days after he first used it on 24th May, 1978 and was turned away by Mr. Keller, the Defendant's agent ,and he eventually left it with the Defendant on the 17th June, 1978. In my judgment, from the 24th May, 1978 to 17th June, 1978 is not unreasonable.

I hold that the Plaintiff is entitled to the return of $1,400 from the Defendant. Judgment accordingly.

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