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by  |  09-Nov-2015 22:02

According to Gilmore, the invoice was asked for by Strauss to be used for the purpose of raising finance for the truck’s purchase.

[11] Gilmore testified about the several trips undertaken with the truck by the defendant across the country and beyond the borders.

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The plaintiff thereupon demanded payment of the full purchase price on or before end of June 2007;that although such demand was made, the defendant’s Strauss informed Gilmore that on account of the truck overheating, the defendant had not yet decided whether or not to exercise the option to purchase and that it was agreed instead that the defendant would pay N$22 000 to plaintiff for the use of the truck during the month of June 2007, being the monthly installment payable by the plaintiff to its bank in respect of the installment sale agreement on the truck;that it was later agreed between the parties that the amount of N$22 000 would be increased to N$25 000 in light of the defendant’s actual use of the truck for a period exceeding one month and that the payment of N$11,569.38 paid by defendant for the truck’s repairs was partial payment of the amount of N$25 000;that during July 2007 the defendant brought it to plaintiff’s attention that the truck was still overheating and was as a result returned to Scania where it was first collected and that thereupon defendant’s Strauss had advised plaintiff’s Gilmore that the defendant would, in view of the overheating, not exercise the option to purchase the truck;upon the plaintiff being so advised, the parties agreed that the amount of N$25 000 would be payable by the defendant to the plaintiff as compensation ‘for the time and distance for which the truck was used by the defendant’.

[7] It is common cause that the plaintiff’s Gilmore delivered the truck to defendant’s Strauss on or about end of May 2007.

It is also common cause that after Strauss took possession of the truck it overheated and was taken in for repairs to Scania and that the defendant paid for those repairs to truck amounting to N$11,569.38.

[8] It is further common cause that the plaintiff sold the truck to a third party in November 2007 at a price of N$620 000.

According to Gilmore, the use of the truck in that way brought down its resale value.

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