A QUESTION OF DELIVERY.

Clutha Leader, Volume XXIII, Issue 1141, 17 July 1896, Page 5

A QUESTION OF DELIVERY.

A case of considerable importance to farmers, stockowners, ' and others came before Mr Hawkins, S.M., at the court here yesterdaymorning. Charles Shand of.Te Houka sued Edwin Palmer of Clarkesville for L 175 10s, being price of. 150 lambs at 7s 6d, and 250 wethers at 9s Gel sold on the 15th of May, and delivered on the 22nd Mayi • ■ ■ The plaintiff was represented by Mr Jais. R. Thoi'nton, and the defendant by Mr. T). Beid. Mr Thornton said that on the 15th of May, Mr Wilson, of theClutha Farmers' Co-opera-tive Association, came to plaintiff s place with the defendant. The sheep were mustered, and Palmer having seen them, negotiations were entered into as to price. • Shand wanted 10s for wethers, and 8s for lambs, but he came down to 9s 9d and 7s 9d, delivery iv a-fort-'---night. Palmer would not accept .that, and Wilson and he yoked up to leave ; but before going away Palmer offered him 9s, 6d and 7s (3d. Shand considered and said eventually that he would accept it. Wilson thereupon made an entry in a' note-book as follows : — " 15/5/96. Sold on account of Charles Shand to Edwin Palmer, 150 lambs pick out 163 at 7s (3d, "250 wethers at 9s (id. Delivery on or within seven, days from date." Wilson read the entry over and' both Shand and Palmer said it was correct. Now Wilson would say this was the ordinary course adopted when sales were made. Three days after Shand received from Wilson this letter: "Re sheep sold by you to Edwin Pahner : At his request I write to inform you that he wants you to bring them down on Friday, 22nd inst. to our yards when ho will send them along with another lot of sheep. You might bring the lot down, and we can draft off the 10 small ones and you can sell them by auction." Shand accordingly brought the sheep downto the yards on the morning of the 22nd. With the assistance of Mr Wilson, his son, and Jas. Shiels, the lambs and wethers were separated, counted, and penned. When Palmer arrived he asked Wilson if the sho3p were in. Wilson replied in the affirmative and took Palmer over to s«e them. Palmer then said : "These are not the sheep I bought," but though the sheep had been dipped and their appearance had been thereby altered he would prove beyond doubt that the sheep were those Palmer bought. Now how far did these circumstances comply with the 17th section of the Statute of Frauds ? He contended that the memo entered in Wilson's book complied with the Statute. Both Shand and Pahner .acquisced in the entry which was made by witness as the agent of both parties. Mr Wilson was the agent of Shand till the sale was effected when he became the agent of Palmer, and was empowered to make the entry, in the note book. He understood that Palmer would deny having authorised Wilson to tell Shand to bring the sheep down, but the evidence would speak for itself. He did not think there would be any difficulty as to delivery, but in order to protect himself he would ask leave to make the claim an alternative one, for sheep bargained and sold. Charles Shand, plaintiff, said he intimated to Mr Wilson he had some sheep for sale and remembered him coming up with Palmer on May 15. Mr Wilson said he had come up to see the sheep and witness sent his son to muster the sheep. The mob consisted of 250 vrethers and 163 lambs. Palmer examined the sheep. Excepting 125 ewes in a different paddock, witness had no other sheep on his place. After Wilson and Palmer got into the buggy to leave, he saw Wilson with his note book in his hand. Palmer then said : " I'll give you 9s 6d for the wetheis and 7s fid for the lambs delivery in a week." Witness said " allright." He had previously said hejwouid throw out ten of the smaller lambs. Wilson then made the entry in the note book, and said : " Is that right, Charlie," and " Ik that right, Ted," and they both said, "Yes." Witness offered to take the sheep down to Balclutha. On Monday he got the letter (read) from Mr Wilson. Brought the sheep down on the 22nd, and saw Wilson at the yards. Wilson, his son, Shiels, and witness were present at the drafting and counting. The sheep he brought down were the ones Palmer bought. He had no other lambs or wethers on his property. When Palmer first saw the sheep on the farm he asked if the sheep were dipped. Witness said, "No ;" but that he intended dipping next day, which he did. Before bringing the sheep down he took the 13 out, as it would be a trouble to take them back. After the sheep sale was over and Wilson was selling cattle, Wilson said : " Shand, Palmer won't take thess sheep ; he says they are not the sheep he bought. You have no other lambs and wethers on your place ?" Witness said, "No." Wilson asked him to take them home but witness refused. To Mr Beid : All the sheep were mustered j excepting the ewes which were in another paddock, Palmer never said he was to feed tha sheep well. Did nor remember mentioning to Palmer the lambs were freezers. Witness threw out 13. Was not authorised to pick the sheep. When he got to the yards Wilson did not say he could not take delivery on behalf of Palmer. Nor did he say Palmer is coming by train and he can t take delivery himself. He did not stay at the sheep safe, as he bad other business to attend to. For one thing he understood Wilson had taken delivery. The sheep had not gone back any. The dipping would increase their value. To Mr Thornton. : The sheep were on the same feed till he brought them to Balclutha. Joseph Shand. plaintiff's son, gave evidence to the effect that the sheep his father took to Balclutba were those Palmer bought, James W. Wilson said he took Palmer up to see some sheep Shand had for sale. Shand's son mustered the sheep and Palmer looked through them in the usual way, and having done bo the price was mentioned, Shand wanted 10s and Bs. Then he thought Shand came down to 9s 3d, and 7s Gd delivery in a fortnight. Palmer would not accept this. When they were going away 'a bargain was struck at 9s 6d and 7s 6d delivery in a week. He thereupon made the memo in his book, which he read to them both and to which they both assented. He ■ subsequently wrote to Shand the letter read. :' After leaving Sband's Palmer said "when is • your gale at the Qlutha. ;? Witness said "on ; Friday." Palnaer said " you had better tell . ghand to brirsg those cheep down to the ; yards, and I can take them on with other ; Jrjt-g." When Shand brought the sheep down l they were first draffed and then counted - and he told his son to take a rote of the i numbers. When Palmer came up from the , train he said "are those sheep of Shand's , here." Witness replied " yes." Palmer said j " Where are they V' Witness showed him the ■ sheep. They had been dipped in the mean- ', -hikne, but they were the sheep Palmer bought. i Palmer looked at them for a minute or so and \ . said " these are not the sheep I bought ; I » ' refuse to take delivery." Witness remon- \. strated ars<l naid they "were in ihe sarae coni dition as on the 15th with ihe exception of . the dipping. He subsequently wired to ; ' Palmer «n the Saturday— " The sheep you [ i boja^bi are starring, **vire v,-]aa£ shall do :srcili ' \ tfeem/' *£kh .enfcy in the aote book was ; \ always Qoasidered binding on boib jjariies. To Mr Beid -j He completed the memo in t hook jttot as £ke fergam was completed- it was not witaegg >vfro "first suggested bringing \ J - the sheep to the jaids, but it was a faei that- * he -would iaye fc* to get tee #Q she e|>

into his yards. Palmer did not say subsequently "don't do : anything with' those sheep till you bear from me." ■ He spoke to Palmer about Gilroy's sheep through the telephone ;and he .then mentioned that he had instructed 3'hand to briq# the , sheep clown to the yards. Palmer replied i' as far as he could remember, " all right.'' Could not; remember Palmer saying not to take delivery that he would come and draft himself. At the yards witness told Shand he would not take delivery as ho' had no power to so, and that Palmer, would arrive by train in a' few minutes. When he showed Palmer the sheep he wanted to know if the 13. lambs had been drafted out. Witness replied they had. This was after he said he would not take delivery. He thought the- actual value of the sheep were the same as when he saw them , in the paddock, but tbpy might look a Gd a bead worse on account of the dipping. The sale was not entered in tho'ebmpany's books and no invoice or sale' note was sent to Palmer. . . : To Mr Thornton : Shand delivered the sheep at the place and time he instructed him on behalf of Palmer and' up to that time the instructions from Palmer had not been withdrawn or altered. .'••.'• James Shiels:. Gave evidence as to the drafting and counting, and said that he heard Wilson tell his son to book or take a note of the numbers. J. L. Wilson said his father told him to take a note of the numbers. To Mr Eeid : liemembered Shand asking his father to take delivery, and his father replied that he' would not, but that Palmer would be in by train. ■ This closed plaintiff's case. Mr lleid submitted, without going into tho merits, that there was no case within the statute. Mr Thorton's contention was that as the auctioneer became the agent of both parties the moment the goods were sold at auction, so, on the same principle, was he so in this case. Tho note made by Wilson was not within the statute ; it was not signed by both parties, nor was it even signed by Wilson as the agent. It was merely a rough memo made by him. Mr lteid proceeded to quote from Benjamin on sales, and from the Sales of Goods Act which showed that either deposit or part payment, delivery, or writing, was necessary in order to make a sale legal. Had Mr Wilson got Palmer to put even his initials to the memo it would have, been different. He submitted no case had been proved within the meaning of the statute. Mr Thornton in reply, contended that what was necessary was the names of the parties, and the particulars and prices of the goods sold. • Both adopted the names in the memo as their signatures. And did not the letter implement the memo made at the time.? It was a question of intention, and it was evident that both parties took action on the basis of the sale. His Worship said he could not decide the point, at once and Mr Eeid had bettes go 911 with the case. It might so happen that some other point would arise that would render a decision on this point unnecessary. Mr Reid, in opening the defence, said the contract and agreement was practically the same as the evidence given showed it to be. In regard to bringing the sheep to Balclutba, it was Wilson's suggestion to bring the sheep to the yards. PaJrner then told him to do nothing in the meantime." As a matter of fact Palmer had no sheep on hand here at that time, and did not know whether lie would have any. James W. Wilson re-called by His Worship, said Shand, between the 15th and 22nd, so far as ho could remember, did not tell him he proposed to leave out the 13 lambs. On witness' attention being directed to the 19th,, he said he had a faint recollection or meeting Shand at the Post Office, and that being so, he could not contradict Shand's evidence on the point. Edwin F. Palmer, defendant, said he bought the sheep at the prices mentioned in the memo. He said to Shand, " now Shand these sheep are not be allowed to go oil in condition " and Shand said •' Oh no." Witness was to get the pick of 150 out of 103 lambs. The lambs varied in size. Shand represented a lot of the Jambs were fat. Only on exceptional occasions he allowed anyone to pick for him. .Never allowed the seller to pick.— Driving home from Shand's Wilson wanted witness to oiTer the sheep in his yards the following Friday, saying he thought he could resell at a good profit. Witness asked v.-hether ho wouid instruct Shand to send them down. Witness distinctly told him not to do so, saying ho would give instructions later on about delivery. Next heard from Wilson through the telephone when Wilson mentioned Shand's sheep and Wilson said Sband was bringing them down to his yards. Gave Wilson no authority to write to Shand. Witness replied " remember Wilson you must not take delivery of these sheep on my account I must do the drafting and take delivery myself." Saw the sheep on the Friday at the yard and refused to accept them. Witness said to Wilson " I have 15 to draft out of these, haven't I " Wilson rep'ied " Shand has drafted them himself.". Witness then 'told. Wilson that wouldn't suit him, and would not take the sheep. He then saw the wethers and said " these are not the sheep I bought." Believed now they were the sheep; they had gone off considerably. That was all he had to do with the sheep. Was particular about this as he had a previous transaction with Shand and was caretul. When Wilson wrote the letter witness had no sheep or land. Never heard of Wilson's letter to Shand till a fortnight ago and certainly never authorised Wilson to write it ; never mentioned anyone to draft or cull the sheep for him. To Mr Thornton : If he had been in Shand's position he would have brought the 13 culls down also. Heard Wilson read the memo over, but he did so before the bargain \yas made. Wilson had the book on his knee in the buggy. It was ihe first time he had refused delivery. It was untrue to say he had done it before. Was satisfied with his inspection of tbe sheep when he bought them. Dipping gave sheep a different appearance. His previous dispute with Sband was years ago, when hs bought some sheep from Shand unseen. He sent another man to see them and he bought them, for witness. On resuming after lunch, Mr Beid said he bad also summoned My Wileon and wished to recall him. He did not know whether under the circumstances the questions should be pat through His Worship. His Worship said that be hardly thought it was necessary. It addition to the point raised by Sir Eeid, he was of opinion thai Shand had not eifected delivery. It was clear that Palmer had to pick the sheep and not Sliand. In regard £0 the legal aspect of the question, Shand had not pat himself in a position to sue. He was satisfied the time and place of delivery -was fixed to be at the jards, but Shand should have delivered all the sheep, and not the pick. . He -was satisfied that "Balmer had to pick the sheep and not Shand Even tin r ,-fors if the sale jmemojwas legal, and even if it was it required stampicg, Shafldhad , not given delivery under is. Mr .Thornton said that after that expression of opinion he would accept a nonsuit. His Worship said that of coarse he made no paputatiGn . against Shand, j£t -was &n aoiortlinaie mistake oa Ms pari-