McEvoy t/a Victoria Cross Sawmills v Hendron Brothers (Dublin) Ltd

• Jurisdiction: Ireland
• Judge: TEEVAN J.
• Judgment Date: 01 January 1971
• Neutral Citation: 1930 WJSC-HC 638
• Court: High Court
• Date: 01 January 1971

1930 WJSC-HC 638

McEvoy t/a Victoria Cross Sawmills v. Hendron Brothers (Dublin) Ltd

JAMES McEVOY t/a VICTORIA CROSS SAWMILLS

v.

HENDRON BROTHERS (DUBLIN)LTD.

1 JUDGMENT TEEVAN J.

2 In the course of his judgment Kingsmill Moore J. said: "What damage, if any, should be awarded for such breach would be a difficult matter" - how difficult I now know, although facts now before the court make the task somewhat less difficult than it would have been to assess damages on the evidence before the learned President and in transcription before the Supreme Court. Nevertheless difficulties still exist and some if not all of these difficulties could have been avoided if the problem had been faced up to in a more business like manner by both defendants and plaintiffs. The case still bristles with anomolies and inconsistencies. I must decide it on the evidence or such of it as I accept that is to say on questions on which I am not bound by the decision on the former hearing. Here I free to surmise, were I free to act on certain statements made in court but not properly proven in accordance with the rules of evidence, or were I to follow intuitive inclinations I feel I would arrive at a higher figure for the value of the will with its defects and consequently at a lesser assessment than that I have arrived at. But it was within the competence of the defendants to act in a way which might have curtailed the damages without **???query??????their case, that is so far as the present…of the case is **???query???

3 The first thing I have to do is to look at the terms of the warranty for the breach of which I have to assess damages. Davitt P. found against any warranty. The order of the Supreme Court is in the following simple terms;

"It is ordered and adjudged that the said (plaintiff's) appeal be allowed and that.... the case be remitted to the learned President to assess damages." It is noted that the Supreme Court do not restrict, or qualify, in any way the warranty pleaded or the breach charged.

4 In the course of his judgment Kingsmill Moore J. said:- "If then an unqualified warranty was given that the machine could cut planks of 60 wide with the implication that this could be done as a commercial proposition, I would hold that the warranty was broken."

5 The net result of the foregoing references is that I must take the warranty as pleaded in the statement of claim which is: (paragraph 3) "The defendants....warranted to the plaintiff that the said machine was capable of cutting logs up to 60 inches in diameter".

6 It has been proved beyond doubt that the mill was not capable of working to that warranty. I have not to go into that for it is established that there was a breach of that warranty; that the mill would not saw planks of 60" on a commercial basis.

7 The plaintiff had a considerable amount of equipment. He had ample machinery for dealing with "small" or average size timber. He bought the Forrester mill because of a particular enterprise then in hand. He was buying timber from a large estate which included old oak and he had orders, or was desirous of obtaining orders, from boat builders requiring heavy oak planking for the ribbing of travlers then in course of construction, or about to be constructed. His old heavy mill had by this time "run down" and he was attracted by the offer of the Okapi Forrester because it would deal with loads of assorted timber including the large oak he hoped to saw both the light and the heavy planking with it. On the strength of his negotiations for the Okapi Forrester he made heavier purchases from the estate referred to.

8 It again appeared in the evidence before me, as it did on the former hearing, that the plaintiff took an instant dislike to the Okapi Forrester on sight. It seemed to him too light for what it was warranted to do and in this he has been justified by subsequent events and an impressive volume of expert evidence. I had more evidence than previously as to this. The basic idea was and remains attractive to the plaintiff, and to Mr. O'Brien and the plaintiff told me his men liked the machine.

9 The main fault lies in the inadequacy to transmit the power delivered by the power source to the saw band. Accordingly it can be coaxed to do a certain amount of work on slenderer timber but if cutting speeds, at rates acceptable to modern commerce are attempted there is trouble. Of course if a sawyer is prepared to go slowly enough sawing can be achieved. However, I am wandering off into what perhaps does not now call for decision, I had better return to some of the evidence now before me that I think was not available on the previous occasion.

10 The demand for new Okapi Foresters in Ireland is now nil. Hendrons very soon relinquished their agency and will not sell them, nor advise their customers to have them. One of the strange inconsistencies in the case is this. The defendants make the case that the mill sold to the plaintiff was not only capable of a satisfactory output from a commercial point of view but was in fact extensively used by the plaintiff. Yet the reason given by Mr. O'Loughlin for his firm's cessation of sales of this make of mill was the difficulties they encountered at Victoria Cross (the plaintiffs' saw mill). In any event two only were sold in Ireland, that to the plaintiff and another to a Mr. Gillespie. Hendron Brothers (Machinery) Ltd., the defendants' associated company and whose directors are two of the directors of the defendant company and whose secretary is the same as the secretary of the defendant company, evaded the opportunity given them to purchase the plaintiff's Okapi Forrester when the matter of sale arose after the decision of the Supreme Court. I have the evidence of Mr. O'Loughlin of the defendant company that although no more Okapis have been sold quite a considerable number (I think 20) of a similar type the C.D.4 have been sold in Ireland since this unfortunate experience with the Okapi. So far as the Irish trade is concerned the Okapi Forrester is "out."

11 The market for second-hand Okapis was very limited as to supply (two only being available) but if anything may be inferred from the sale of new **???query?????? mills, the demand for second hand Okapis is no better than that for new ones.

12 I am satisfied on the evidence that the plaintiff when after too long a delay and only after the decision in his favour in the Supreme Court he finally decided to sell the mill, used his best endeavours to sell it to the then best advantage. He advertised it with the puff "little used".

13 Following the decision of the Supreme Court the plaintiffs on 7th October 1963 wrote to Hendron Brothers of 9 Little Denmark Street, the defendants' associated company to which I have referred, saying

14 "We have for sale a Forrester Log Bandmill which was the subject of a recent law dispute. As you are aware, this machine has done practically no work. It can be seen anytime at above premises. No reasonable offer will be refused.".

15 To that letter Hendron Brothers (Machinery) Ltd. replied:

16 "We thank you for your letter of 7th instant offering Forester Log Bandmill.

"Would you please state if it would be possible to see the Bandmill at work, your very lowest price and where same may be inspected."

17 On 12th October 1963 the plaintiff replied to this saying. "We regret to inform you that it is not possible to see this machine working but it can be seen at the above address and as all the parts are easily accessible a very good inspection, as to its condition, can be made without actually starting the machine.

18 "As regards price; we are not very conversant with the price of second-hand machinery and we feel that you would be in a much better position to estimate the value of these machines."

19 Now I wish to comment here on a number of things. The first of these is that on the original hearing and on the present hearing before me, witnesses for the defendant purported to give evidence of the fact that the mill had been pretty extensively used, on visual appearance alone. The next thing is that the addresses were well aware of the problem relating to this mill. Thirdly they are dealers in second-hand sawmill machinery. Further the mill by this time had been packed away. Yet their reply was: (6th November 1963) "We regret to learn it is not possible to see your Bend Mill at work. On enquiring at our Broadstone House we have been informed that in their opinion something must have happened to this machine. They do know you worked it very satisfactorily for a time while you cut most of the timber required on the Lee scheme, then suddenly you stopped working it and proceeded to make a claim on them. If you can prove that your machine did not run off the rail or topple over and is not twisted in any way we could perhaps arrange to inspect it, as we know of a similar machine doing very satisfactory work.

"Regarding the price, from what we hear you are in a very good position to fix a price that would show you ample profit."

20 This letter shows that Hendron Bros(Machinery)Ltd. were in communication with the defendant associated company about the matter and were fully conversant with the state of affairs.

21 Thus the plaintiff succeeded in getting an offer of £200 from a Mr. O' Keeffe, another saw miller in County Cork. This offer was communicated by the plaintiff's solicitor to the defendant's solicitor, who replied (4th March 1964) "that on the assumption that the machine is in reasonably good condition they (defendants) have expressed the opinion that it is worth a great deal more than £200. It is therefore entirely a matter for your client as to the manner in which he wishes to dispose of the machine."

22 The plaintiff's solicitor then informed the defendants' solicitor that the plaintiff had...