Russell v Maya'S (A Firm)

• Jurisdiction: Belize
• Judge: Ponnambalam, J.
• Judgment Date: 02 January 1991
• Date: 02 January 1991
• Court: Supreme Court (Belize)
• Docket Number: Action No. 99 of 1984

Supreme Court

Ponnambalam, J.

Action No. 99 of 1984

Russell

and

Maya's (A Firm)

Appearances:

Mr. Philip Zuniga for the Plaintiff

Mr. Oscar Sabido for the Defendant

Contract - Sale of tape recorder — Whether two year guarantee was given to plaintiff — Whether plaintiff should pay for part if ordered during guarantee period — Evidence that plaintiff returned machine to sellers 3 years and ten months after receiving it — Claim dismissed.

Ponnambalam, J.

1 On 5 April 1984, the plaintiff issued a writ on which was endorsed the following Statement of Claim:

• “1. In or about December 1980, the plaintiff bought from the Defendants a tape recorder for the price of $2,500.00,

• 2. At the time of the said purchase the Defendants gave to the Plaintiff a written guarantee by which they undertook to repair the said tape recorder free of cost if it should malfunction or if any defects came to light within 2 years,

• 3. On or about the 11th day of March 1982, the Plaintiff, in pursuance of the said written guarantee, delivered to the defendants the said tape recorder in order that the Defendants might repair and return it in proper condition to the Plaintiff,

• 4. On or about the 18th day of January 1983, and on the 5th day of March 1984, the plaintiff, through his solicitor, demanded the return of the said tape recorder or its value of $2,500.00, but the Defendants have not returned the same to the Plaintiff and the same has been lost to him.”

2 In its Defence delivered on 2 August 1984, the defendants denied that they sold the plaintiff a tape recorder priced at $2,500.00 in or about December 1980, but stated that the plaintiff first purchased an AKAI tape recorder (Model GX 280 DSS) on 6 December 1977, for $1,345.50. Secondly, the Defence denied that the defendants gave a two year written guarantee to the plaintiff in the terms of the undertaking specified in the Statement of Claim. The Defence stated that the defendants, as retailers go along with the usual one year warranty that the AKAI factory gives on all its products. The Defence further stated that in early part of January 1978, the Defendant delivered to the plaintiff a tape recorder Model GX 630 D, without any guarantee save the usual AKAI factory warranty for one year and that more than three years later in May 1981 or thereabouts the plaintiff brought this tape recorder back to the defendants for their technicians to look it over. In November 1981, the visiting AKAI trained foreign technician checked the model and diagnosed that the machine needed repairs at a cost of US $150.00, including service and parts. The defendants offered to get the machine repaired provided the plaintiff paid for it but the plaintiff refused. The defendants offered to return the machine to the plaintiff who refused to accept it.

3 Thus, on the pleadings, apart from the collateral issues as to the date of purchase and the price at which the machine was purchased, the central issue was as to the written guarantee and its specific terms, as given by the defendants, the burden of proof of them being on the plaintiff. But when the trial of the Action commenced, counsel for the Plaintiff obtained leave and amended “written” as for the guarantee, in paragraphs 2 and 3 of the Statement of Claim, by its deletion and substituted “oral” instead.

4 The plaintiff, in his evidence in chief, stated that in December 1980, he bought an AKAI tape recorder from the defendants for $1,300 odd. He said that he got a guarantee on that for 2 years. This was by word of mouth. He carried that machine home and left it for a few days and somewhere in January 1981 he returned the machine as it was too powerful and big for his receiver. In return, he collected another AKAI from the MAYA'S and paid them $1,000 then. He said that he got a two year guarantee on this one. Somewhere in May 1982, this machine started malfunctioning, so he carried it back to MAYA'S and explained to them that he was having problems. He said that they said that they did not have a technician in Belize and needed to wait for one to come from Japan. So he left the machine with MAYA'S, who loaned him a machine to take home. A few weeks later, he returned that machine and told them that he was not satisfied with it and said that he would wait. The technician arrived and he was told by MAYA'S that he had suggested that the head of that machine needed to be replaced and that it should be ordered from Japan for $150. The plaintiff said: “I reminded them that I had a two year guarantee and that I should not be paying for it. He said I had to pay if I wanted it. I told them that I will leave the machine and have him consider it and tell me about it. I have not heard from him and asked my lawyer Mr. Zuniga to demand my tape or return the $2,500 from them. When I delivered the tape, the MAYA'S gave me a receipt”. He tendered the receipt (Exh. CR 1), as well as letters written by Mr. Zuniga to MAYA'S dated 18 January 1983 (Exh. CR 2), letter from Lindo & Barrow (Exh. CR 3) and a copy of a letter from Mr. Zuniga in reply to Lindo & Barrow (Exh. CR 4).

5 Under cross-examination, he agreed that Exh. CR 2 states that he bought the tape recorder in December 1979. His varying, if not contradictory position on the date of purchase, the price, and what he bought were as follows:

“I believe it was in December 1980 that I bought it. I...