Supreme Court
Action No. 12 of 1982
3rd June, 1983
Rajasingham, J.

Mr.. J.C. Gray, for the Plaintiff
Mr.. L.L.R. Welch, for the Defendants

Contract - Purchase by Plaintiff from Defendant of a boat engine of merchantable qualitywhich later broke down - Engine breaking down because of the sole negligence of Plaintiff - Whether Defendant liable for the breakdown of the engine.

J U D G M E N T

The Plaintiff's claim is for the price paid by him to the Defendant company to purchase an Evinrude outboard engine and for damages arising from the breakdown of the said engine. The Defendant's position is that the breakdown of the engine was caused entirely by the Plaintiff's own misuse of the engine in that the Plaintiff did not add the required quantity of lubricant to his fuel and thus caused the damage complained of.

The uncontested evidence is that the Plaintiff bought the engine from Mr. Karl Menzies personally. Mr. Menzies is the biggest shareholder of the Defendant Company. Mr. Menzies told the Plaintiff that the engine had been tested and the Plaintiff appears to have accepted that. It was a 25 horse-power Evinrude outboard engine that was sold by Mr. Menzies to the Plaintiff at a price of $2,277.00 after discount. The sale was completed by the delivery of the engine to the Plaintiff in person on the same day, namely the 4th of December, 1981. The Plaintiff accepts that it appeared to him to be in good working condition. That is as far as the parties are agreed.

The Plaintiff denies that he was told by Mr. Menzies that he had to take the engine back for checking after ten hours' use; he says he knew that that was the practice. However, there appears to have been some reference to this ten hour check, which Mr. Menzies says he told the Plaintiff about, because the Plaintiff in his evidence relates a discussion between him and Menzies as to which mechanic would conduct the check; the Plaintiff chose Clive Stevens over William Tucker, both "marine engineers" in the words of the Plaintiff. The Plaintiff used the engine to pursue his occupation as a fisherman, an occupation which Mr. Menzies must have been aware of because he knew the Plaintiff was a member of the Northern Fisherman's Cooperative which placed the order for the engine on behalf of the Plaintiff. About two weeks later the Plaintiff, having completed ten hours use, took the engine to Clive Stevens for checking. Clive Stevens gave evidence and stated that the only thing he found that required his attention was a missing nut from the air cleaner. He replaced that, changed the oil and greased the engine. He says he checked to see if anything was slack and whether the engine was running rough. He ran the engine in a drum of water and then on a skiff. He says he was of the opinion that the engine was in good condition when he gave it back to the Plaintiff. He did not open up the engine and examine the inside of it and admits there could have been a defect which he could not have seen or heard and which may have manifested itself later. The Plaintiff confirms that Stevens found nothing wrong with it at that check-up.

The Plaintiff says he then continued to use the engine, apparently without any trouble until, on the 7th January, 1982, as he was returning from a fishing trip he heard a noise and the engine "broke down." He says he tried to start it but he knew it was useless because he "heard something was wrong" - meaning he heard some sound from the engine which indicated something was wrong. This negatives any suggestion that the engine stopped for want of gasoline. Since the engine was still within the guarantee period, he notified Mr. Menzies and on his instruction took it to William Tucker, the Defendant's mechanic, on the 8th January, 1982.

He now continued his evidence in a less than credible fashion. He stated in examination-in-chief that Tucker, having examined the engine carefully in his presence, gave him a "written" opinion; this was tendered in evidence marked "V.N. 3." It is typewritten and dated four days later than the day of the examination by Tucker. In cross-examination he admitted that he had it typed at the Cooperative and had it subsequently signed by Tucker. The Plaintiff sought to prove that this document supported his statement that Tucker did not think that lack of lubrication had caused the damage but thought instead that the damage was due to a factory defect. Tucker denies this and states that the cause for the damage was apparent to see and was the lack of lubrication; he says he suggested sending the engine to the manufacturer in order that the matter may be settled by conclusive rejection of the doubts of the Plaintiff, who insisted he had used lubrication. The Plaintiff's next assertion was even more incredible; he said that Tucker did not tell him the damage was caused by lack of lubrication and did not contradict Menzies when Menzies said that that was the cause, in the presence of Tucker; in fact, earlier in cross-examination he had said that, having examined the engine, Tucker did not tell the Plaintiff or Menzies his findings. If one believes the Plaintiff, Tucker, the "Defendant's mechanic" in the Plaintiff's words, did not tell Menzies his findings after having examined the engine; even if his finding had been, as the Plaintiff says it was, that the damage was caused by a factory defect, I can see no reason for not telling Menzies because the guarantee was the manufacturer's guarantee and not the Defendant company's guarantee. Tucker's evidence, of course, gives the lie to all this; he says the cause of the damage was so obvious that, having told the Plaintiff it was because he had failed to add lubricant, all he had to do when Menzies arrived was to ask him to look for himself. In fact the Plaintiff himself looked into the engine and was told by Tucker that the "crankshaft bearing was broken" and saw that it was indeed so. In the very next sentence he says the bearings "wore out". Although he says he is ignorant about engines even after fourteen years of using them as a fisherman on the seas, I cannot believe that he does not know the difference between broken bearings and worn out bearings. However, he does admit that he knows an engine can break down if it does not have sufficient lubrication; he could hardly deny that, as that could rebound to his disadvantage. The Plaintiff insists that he did put in the required lubricant and as evidence of this produced a receipt for gasoline and oil from his Cooperative, dated 7th January, 1982, and marked "V.N.2". This receipt states that the Plaintiff purchased 4.9 gallons of gasoline and a pint of oil on the 7th January, 1982. It was tendered in evidence without objection from the Defendant. It does not state at what time the Plaintiff purchased the gasoline and the oil, nor does it state that it was put in the engine in question. The Plaintiff's own evidence is that he used the engine that day and that this receipt is for the gasoline and oil he put into the engine that day.

According to the evidence, the oil and the gasoline are mixed together in the fuel tank of the engine. There is no evidence to suggest that when the engine would not start again it was for want of gasoline. There is also no contest about the evidence of both Tucker and Menzies that the engine was dry for want of oil. Therefore, if one believes the Plaintiff's evidence that he put in gasoline and oil, the oil leaked away or dried up but not the gasoline into which the oil was mixed.

Menzies' evidence is supported by both Stevens and Tucker and is to the effect that the engine was in good working order when sold to the Plaintiff, was found to be in good order when checked two weeks later, and had broken down only because it had no lubrication. Menzies, in order to satisfy the Plaintiff as to the cause of the breakdown, offered to send the engine to the manufacturer if the Plaintiff agreed to bear the cost of freight in the event the manufacturer's verdict was that the engine had no latent defect and had failed only because of the Plaintiff's failure to lubricate it. The Plaintiff did not accept this offer; in fact the Plaintiff denies that Menzies made such a suggestion. The Plaintiff does admit there was some talk of sending the engine to the factory, but that that was the recommendation made by Tucker. The Plaintiff does not say that Menzies refused to accept Tucker's suggestion. As I have stated elsewhere, I cannot see what Menzies had to lose by agreeing to such a suggestion; if it as a factory defect the manufacturer would replace the engine and if it was the Plaintiff's fault and the Plaintiff bore the cost of freight the Defendant lost nothing. If, however, the Plaintiff refused to bear the cost of the freight in the event the fault was found to have been due to his omission, then one can understand why the engine was not dispatched to the manufacturer. If, as Menzies says, the Plaintiff refused to accept his offer to send it to the manufacturer, it could be because the Plaintiff himself had a suspicion at least that the damage done to the engine was done by his neglecting to lubricate it.

In conclusion I find that the engine was in good working order and of merchantable quality when it was sold to the Plaintiff and that any damage that has been caused to it was caused by the Plaintiff's failure to add the necessary lubrication to the fuel. I find that the receipt "V.N.2" produced by the Plaintiff is either a fabrication, in which case the Northern Fishermans Cooperative possibly has a forger who has access to its receipt books, or is only evidence of a purchase made by the Plaintiff and not evidence that the purchased gasoline and oil were in fact utilised in this engine before it broke down.

I dismiss the Plaintiff's action with costs.

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