Motor Mart and Exchange Ltd v Singh (C,C. 315/1930.) [1930] EACA 88 (1 January 1930)

### ORIGINAL CIVIL.

#### Before DICKINSON, J.

# THE MOTOR MART AND EXCHANGE LTD. v.

#### MUNDER SINGH.

### C. C. $315/1930$ .

Hire-purchase agreement—effect on the agreement of a total. destruction of the subject-matter of the agreement.

$d$ : That as the property had been destroyed there was nothing<br>left to hire, and there only remained the right of the plaintiffs to $\boldsymbol{Held:}$ recover damages from the defendant for the loss of their property.

Kaplan for plaintiff.

## Mangat for defendant.

JUDGMENT.—This is an action brought by the Motor Mart. and Exchange, Ltd., against Munder Singh seeking the recovery of a sum of Sh. 2,411/63 as damages, being the balance of the agreed price of a car which the defendant had from the plaintiffs on a hire-purchase agreement and which had been destroyed in an accident. The plaintiffs further claim Sh. 230, being moneys expended by them in respect of transport and haulage of the car after the accident.

The defendant entered a defence setting up various grounds, but at the trial his counsel, Mr. Mangat, stated that the only ground on which he relied was whether by the contract the plaintiffs were entitled to an open Judgment for the entire unpaid balance of the purchase price and expenses, or whether they were only entitled to a continuation of the payment of the agreed monthly instalments until that sum had been finally liquidated. He asked the Court to interpret the document in favour of the defendant and to order payment of the amount claimed by monthly instalments.

Mr. Kaplan for plaintiffs submitted that his clients were entitled to an open Judgment.

Neither counsel supported his contention by citing a case. Mr. Kaplan referred to a text book, "Gibb on Motor Accident Cases."

The contract, by clause 4, apparently contemplates possible damage to the car, and this does not seem to vary the conditions of the hiring; it merely arranges what the hirer should do in the event of serious damage occurring to the car.

The car in the present case has been damaged beyond repair —this is agreed by both parties—and has no value and is a total loss. The car was insured by the defendant in accordance with the contract and the defendant has made a claim on the insurance company, and as the company disputes liability the defendant has commenced an action to recover from them under his Policy.

There is no condition in the contract which deals with the eircumstances which have arisen. The contract is a contract of hire with a right to purchase.

Now that the car has been destroyed there is nothing left to hire, and therefore the monthly payments, which must be taken to be, or at least to include, the price of the hiring of the ear, together with the contract of hiring, automatically cease, for there can only be a hiring of some existing property.

Therefore there only remains the right of the plaintiffs to recover damages from the defendant for the loss of their property. This they claim and I do not see that I have any alternative but to grant it. The amount is admitted by the defendant.

I therefore give judgment for the plaintiffs as claimed with I realise, however, that the main object of the defendant $\mathrm{costs}.$ in hiring the car from the plaintiffs instead of buying it outright was to extend the time over which he had to find the purchase price, and I order that provided the defendant do pay forthwith the expenses incurred by the plaintiffs in haulage of the damaged car, Sh. 230, together with the taxed costs of this action, execution against his person or property shall not issue if he continue to pay to plaintiffs the sum of Sh. 301/45 every month as provided by the contract, unless and until he shall have received payment from the insurance company, when any remaining unpaid balance of the Judgment debt in this case shall become due and may be executed forthwith.