ALLEGED BREACH OF CONTRACT.

Auckland Star, Volume LIII, Issue 86, 11 April 1922, Page 6

ALLEGED BREACH OF CONTRACT.

BRETT V. SCHMEIDEMAN BROS. JUDGMENT FOR DEFENDANTS. Judgment was delivered by llr. Justice Herdman in the Supreme Court this morning in the case of Oliver Brett, indent agent, Auckland, v. Schneideman Bros., merchant tailors, of Auckland, a claim for damages to the extent of £634 8/8, for alleged breach of contract. His Honor stated that the plaintiff based his cl&m on one of two alternative grounds. He said first that he was employed as defendant company's agent to purchase upon his own credit certain woollen goods, and that, having bought the goods, under the contract of agency, the defendant company refused to accept the same when they were tendered for delivery. Secondly, and in the alternative, he claimed that the defendant company agreed to purchase and accept from him the woollen goods referred to, and in due course refused to accept the same when tendered, whereby he suffered the damage claimed. The action was tried before a jury of twelve, it being proved that, in pursuance of a contract made between the parties, some goods were tendered by the plaintiff to the defendant company, and that acceptance of the goods tendered was refused by the latter. The principal matter in controversy when the action was before the jury was whether the plaintiff had a right under the contract to include in his account against the defendant company a commission paid by him to his London buyers, who purchased the goods tendered. Although the defendant company now claimed upon other grounds that it was entitled to refuse to take delivery of goods tendered, it cannot be doubted that it was because plaintiff insisted upon payment of this charge that it refused to accept the goods. It was claimed that a notorious and universally understood commercial custom existed in the soft goods trade which authorised plaintiff to add to the price of the goods bought by the defendant company the commission which he had paid or was liable to pay to his London buyers. At the conclusion of the plaintiff's ease his Honor reserved leave to Mr. Ostler to move for a nonsuit upon sevral grounds. Before the jury retired to consider their verdict certain issues were framed and, by agreement between counsel on both eidee, the issues agreed upon were submitted to the jury. The following are the questions put to the jury and the answers returned by them: — 1. Is there a general and notorious custom of tl<e trade in Auckland to include in the term ''landing charges" a London buyer's commi.^oion? —Yes. 2. Was the plaintiff ready and willing to deliver the first instalment of goods substantially in accordance with the contract?—Ye3. 3. Was the plaintiff ready and willing to deliver the second instalment of goods in accordance with the contract?—Ye;. ' 4. If the defendant was not justified in refusing to accept delivery of the goods, what (\amage3 (if any) is the plaintiff entit.ed to recover? —£300. After taking the verdict of the jury, acting under Rule 256, he adjourned the case for further consideration. There was no proof that the plaintiff supplied goods in accordance with the contract description or that he was ready and willing to supply such goods. The plaintiff was not entitled to say that the delivery of a number of pieces leas than he contracted to sell or that the delivery of lengths of cloth which are not "pieces" was sufficient for ths purposes of the contract. That being hi? Honor's view, it follows that the plaintiff, notwithstanding the answers given b> the jury to the issues placed before them, was not in law entitled to a judgment in his favour. Judgment was for defendant with I coste ac per scale, witnfsses' expenses, and disbursements to be settled by the Registrar.