Pomaleu v Fuddy [2001] PGDC 17; DC420 (14 February 2001)

DC420

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 474 OF 2000

BETWEEN

Robert Pomaleu
Complainant

V

Michael Fuddy
Defendant

Goroka: Manue F. Magistrate
2001: 14th February

Parole Contract

Contract – Sale of Goods
Agent, Whether Defendant Acted As An Agent, Whether The Agreement Was Terminated.

Manue F. – This Is A Claim For The Sale Of A Used Care. The Complainant Had Offered His Used Car For Sale To The Defendant.

The complainant by oral agreement in March 2000 agreed to sell his used car, a Mitsubishi Galant Station, green in colour, Registration No. MAB.739. the original price set by the complainant was K2,500.00. The price was reduced to K1,500.00. Factors which contributed to price reduction among others was that the defendant had some knowledge on the vehicle which has been working on it on previous occasions.

The complainant filed an affidavit outlining the events that transpired between himself and the defendant. The affidavit also disclosed the events that occurred after the vehicle was delivered to the defendant by the complainant’s witness, who also filed an affidavit. The complainant’s witness verified in his affidavit and during cross examination that the vehicle was in running condition. The witness being a motor mechanic himself affirmed that the vehicle in issue was in good running condition. He in fact drove it to the defendant.

The complainant learned on his own investigations that the vehicle was with a third person, whilst no payment had been made by the defendant. Upon enquiry with the defendant, it was also revealed that the vehicle was taken by the third person without the authority of the complainant nor was there any payment made by the defendant or the third person. By contrast the defendant did not dispute the delivery of the vehicle to him nor did he disagree with the value of the vehicle as set out by he complainant.

What is being contested is that the defendant claims that the vehicle in issue was not in good working condition when he learnt of a faulty, he conveyed the message to the complainant to repudiate the agreement. He further claims that he acted as an Agent to the complainant in selling off the goods (vehicle) to the third person.

In support of that, he said that, the third person was introduced to the complainant. The means of the introduction was that the complainant was merely shown the place and house in which the third person resides. At no stage was the third person personally and formally introduced to the complainant.

I will now discuss the issue of whether the contract was repudiated when the defendant learnt of the faulty, namely a de-functioned fuel pump.

At the outset, the defendant was familiar with the complainant and had worked on faults to the vehicle in issue. He had prior knowledge, of the condition of the goods in issue. And doing work on it, knew very well that the goods are of second had in nature. Inspection of it, by the very nature of it is checking its condition so that he is in a good position to asses the value of it as well.

In my view the agreement for sale had not lapsed by the mere fact of the discovery of fault, especially when the goods are second hand in nature. Although title of ownership has not been transferred, the complainant consented to the vehicle being delivered to the defendant and that payment made at a reasonable date later.

The second question related to any Agency concept. The defendant claims that he was merely a middleman or an agent appointed by complainant to sell the vehicle to the third person. Agency law requires that, the agent be duly authorised to do a particular and specific job. Having been appointed the Agent must introduce the parties intending to enter into a contractual relationship thereafter, he plays no part in the substantial contract.

In the present case, the complainant, at no stage gave the defendant am agency task. He stressed that the agreement lie between the parties in Court, and none other. Having received delivery of the vehicle, without payment, the defendant on his own accord, passed on the goods to the third person. At this stage, title or ownership had not transferred, and that, he acted without authority. Title still remained with the complainant owner. The owner learnt of the third persons involvement when the complainant saw the vehicle being driven by the third person.

It was at this stage the defendant attempted to introduce the owner to the third person. They simply went looking for the third person to find that he was not in the house. Introduction requires formality of giving names, addresses, profiles etc.

This was not the case in this instant, I find that no proper introduction was made and thus the defendant neither had authority nor did he introduce the parties personally and formally. He did not and was not appointed an agent to make the sale.

Accordingly, the defendant is liable as a party in breach of the sale agreement.

It was thereby adjudged that the defendant pay;

Principle amount	K1500.00
Interest @ 5%	K75.00
Costs -	K3.60
TOTAL AMOUNT ADJUDGED =	K1578.60

In Person: Complainant
In Person: Defendant