SUPREME COURT.

Press, Volume XXXI, Issue 4176, 16 January 1879, Page 3

SUPREME COURT.

SITTINGS AT FISI PRIUS,

~.- . .. Wbbnksdat. Januakt 15. His Honor Mr Justice Johnston.j The Court ra-opened at Id 15 a.m CL_V_ V- _I_6 AND ANOTHEE. Mr Garrick said, after consideration, he could not agree to a_ow tbe amendment proposed by his learned friend Mr Macassey to strike out the word " yellow," because that would materially ater the record. "After some further argument — . Mr Garrick said he should move for a nonsuit on the grounds that there was no evidence to go to tbe jury that there had been the first breach, viz , that the defendant undertook to deliver purple top yellow. All tbat h*d been moved by the plaintiff was that defendant said that tho *eed was purple top. .As regarded the second '• breach charged, that there was a warranty that ■the seed -was merchantable, "the evidence was that tho defendant stated expressly that the j seed was purple top, but -whether white or t yellow they could not say. Hence he contended that the doctrine of eavsat-etaptortippK&A. _ 'Ibe i onus of proof rested on the plaintiff to show that such a contract existed as had been alleged by his declaration. ! Mr Macassey contended that there were no grounds of non-suit, thong- his learned fnead might have ground to move in another way. It waa * well known practice at nisi prits that law i paints each as this could not be raised in support cf » non-suit, but must be raised m b«>ico. Tbeir answer was that on one or two points raised by, the declaration there-was sufficient evidence to go to the jury, leaving them to deride whether there wasa case made out by tne p&mt__ in support of his allegations. They contended that the broad statement was that there was a sale of something, that -omethicg being turnip seed. Then they contended that i the turnip seed was worthless for any purpose, which was a bread cbaige against *he defendants quite distinctfrom the minor details as to tbo 1 description of seed. Erea supposing they failed to make out that the seed was purple top _«*»*„ turnip seed, they yet had a good cause of astjon in saying that what the defendanta bad sold ihem. iwhether yellow or wMte, was not mer-*c__nl!_-le. Thus they had two distinct breaches, "the Srst of these was that the defendant had not supplied the particular description of seed, and \ secondly &4 the seed was not merchantable. [Gasecftea'Jone. v Just, 37 LJ.] The doctrine of car-** emptor con Mo.M£o. apply when? fie party h-d no opportunity of inspection. Now in this c_se_h»pj*inti_ was 200 miles from the SeUer, .„ and bad *o opportunity of inspecting the seed, so that the doctri&a of --caveat emptor would not; »pp_y. Jones v, Just read."] On the authority of this he contended that there was ah impHed warranty that ?t£e seed was fuarchan-able. in sup.pdtt.BaadaflvN_Wsoi_.e,.s6L.J.3 . ' Hia Honor pointed out that the pl_i_tin had not proved the oon_r__t as laid. There was iho difficulty. They stated the contract f«r, the purpose of purchasing purple top yellow turnip seed, which thej had not proved. '4&f& advlted ha should grant tha nousmtpouit en. hi_ IgroW-i.-' .'■■■» . " .is-M MtM-ca&MSyB-bi-i-tedtijstthevaiaißCOwaa ouite immaterial to the purposes of the present

action. He should submit that it was clear that a telegram had been received by defendant -ram the plaintiff, ordering larple top.yellow, and that fifteen sacks were ploced on board a .steamer for shipment to plaintiff in accordance witti that tel-eram. _his he contended that the contract had been entered into, which was plain. . .... His Honor said he should rule,that after the receipt of the invoice with the words that the sied was sold to them as purple top, but whether green or yellow they were not aware, aneweantract had arisen. Mr Macassey submitted that at iray rate "there was a contract to supply turnip seed, of whatever kind, of merchantable quality. Hence they, having proved that it was not merchantable, were entitled to proceed with their action. Their declaration alleged that this was a sale of turnip seed, and also that it was of a particular kind. They therefor. submitted that theywere entitled; to amend their declaration so as to include turnip seed, and of a particular Hud. His Honor pointed out that the plaintiff had endeavored to prove that the defendants had entered into an implied warranty to; supply : plaintiff with a certain quality of seed for sale by him to other persons, and this was altogether different from the allegation of non-merchantable goods. Mr Macassey submitted that the plaintiff was entitled to receive the money paid by him, as there had been a total failure of consideration.

This was the first measure of damages. The second measure was, on the authority of Jones v. Juit, that they were entitled to receive the value of the seed, whidh it would have brought had it been merchantable.

His Honor said upon this'argument the stood thus. Ihe seed had cost .£6o,"which was its value had it been merchantable; it turned out to be worth nothing. Hence the measure of damage was J£oo.

Mr Macassey desired to direct his Honor's attention to this fact: that the plaintiff had sold the seed at la ?d per lb. Hence he submitted that the plaintiff was entitled to recover this, as he had had to refund this, owing to the breach o£ warranty on the part of the defendant that the seed was in merchantable condi-

tion. The third measure of damages they desired to claim was, on the authority of Randall v. Roper, that an implied warranty had been given by the defendants to the plaintiff.

Mr Garrick submitted that the contract had not been proved. The declaration alleged that the contract was to sell purple top yellow,' and no evidence had been led to prove this. ' __i 3 being so the contract went, and with it the alleged breaches. Therefore, he contended they had a right to claim a non-suit.

Mr Macassey said he would ask his Honor to allow the jury to find upon the facts, and leave the Court to decide afterwards" upon" the law points.

His Honor said that he thought that it wonld be better to let the matter as a whole go to the jury. Mr Garrick said he should press the "non-suit j points. If the Court decided to allow the i matter to go to the jury, he should apply for ' leave to ayply afterwards for' a non-suit, or to - enter a verdict for the defendant. I His Honor said he should let tho case go to I the jury, and take their answers to the questions suhulifcted to them. Leave wonld be reserved to Mr Garrick to move for a non-suit, or for tho verdict to be for the defendant, the Court to be allowed to make such amendments aa should have been made at nisi prius. Mr Holmes then opened the case for the de- ( fendants. They proposed to prove that the plaintiff had had a sample of seed sent to him, and therefore had an opportunity of becoming acquainted with the quality of the seed. Secondly, they proposed to prove that the contract waa founded on the invoice and letter accompanying it. Thirdly, the defendants proposed to prove that the seed wa. bought by them in a bona fide way and sold to plaintiff' in the ordinary way. ; Fourthly, the defendant was described as a seedsman, which was wrong, as his business was that of a corn factor.' This would prove of ..o__iderable importance to the case, as the declaration of the pi -it-tiff would lead to the belief that the defendant was an expert in the matter. Then it would be proved by the witnesses for tho defenca that It was quite possible for seed of the best quality, if sown in a wrong season, to come as stated by the witnesses. The defendant would also state to the jury what were his reasons for sendingthe letter and invoice with the seeds.

His Honor said that the Court had already ruled in favor of the defendants on this point, and . t would not therefore be necessary to call evidence on a point of law. He should state to the jury that this was perfectly clear on the invoice and letter. As to the other point, regarding the sowing of seed at wrong seasons, that was established by Mr Duncan's evidence.

Mr Holmes eaid. that tha last proposition be intended to prove was that the plaintiff had far more knowledge ot seeds than,the defendant, and had better opportunities oi fudging of the quality of the seed. Mr Garrick then called the following evidence :—

Augustus ¥_ele-ick _ a "Veaux deposed, tbat on the 30th October, 1877, a sample of provincially grown seed, pf which the bag produced was a portion, wa_ sent to tbe plaintiff. His Honor said that if this Was intenoed to lead- argumenta. ively np to the proof of sale by sample, the evidence might be admissable, but not if the defendant intended to show that there was a Vjufianceof the contract. . Mr Garrick said that all He had' intended to prove was that the'sale- had be-n by sample. Mr Macassey objected to the evidence being admitted. V"

Mr Garrick would then more that a question be submitted to the jury whether the sale,had been by sample. $* _$ "..-■■■-. •-- - . ?-r ' Mx M&paesey would not object |o gift being done. ■- — - - - - - 1 - *■ - 1 -•-

ISxamuntiqn continued—The sample went forward previous to the invoice ol the sth '• and letter of the 10th November. The sample is a portjon of that left with the,defendants by the seller Elder upon which the bulk was bought.•The bulk was sampled by defendants and found to be the same as sample sent forward. %■ . Cross-examined by Mr Macassey—The-memo, on the back of the bag states that the- sample was of a ton of purple top quoted to, B. Cleve, seedsman, at 6d per lb. Witness bought the seed from Elder aud wrote the litter to Cleve which had be-n produced. The letter-book of the firm wonld,: show when, the sample went forward to MrCleve. .. Witness had no experience in buying seed of this kind. This was hia first vanture in turnips. The sum paid, viz., 4A per lb. for provincial seed, did not excite suspicion in the mind of witness. . --<""-

By His Honor-T-Witness did sot know Elder. He did not ask where the seed was from .

By Mr Macasseyr-The seed was submitted to Mr King, and on hia judgment witness.bought it. He did not know where .Elder lived at the time. " ,

He-examined by Mr Qarrick—-Witness drew ihe contract note which was signed by Elder guaranteeing the quality cf the sped. ■'■■'■ George King—l am one of ibe defendants in this action.. I recollect the purchase of the seed from Elder. I saw tht sample produced by Mr DeYeaux. I did not see Elder at all, nor did I know ; anything of him. I have no-ex-perience iv buying turnip seed. ThisXvas my first speculation in it. My business is that of a corn factor and miller. I have had-no transactions with any other seedsman except Cleve. The telegram of the sth November, "Is the sample turnip white or yellow," and the answer, " Purple top yellow Aberdeen," referred to -ihe seed mentioned in the invoice of sth November, and not to the provincially grown seed purchased by ns from Elder. Ihere was no sample of'the Aberdeen sent forward.

Cross examined by Mr Macassey—My answer to the telegram. "Is the sample purple top or yellow," did not J refer to the provinciaßy grown sample sent by ns. I believe it referred to other seed which had been ordered by the plaintiff. The letter sent with the sample produced is dated 29th October, and I believe there was a postcript offering the seed, which has not been copied. There had not. I believe, been any letter writing or telegraphing as to the seed between Cleve and ourselves from 29th October to sth November. The telegram of Cleve was referring, I believe, to other orders ia hand. Whatever sample was referred to by Mr Cleve in the telegram, I t Ad him that it was purpletop yellow Aberdeen. I know of no record in our books of this transaction completed by telegram. I produce the journal. The orders are plsced in the order book as they come in. The first reference to the seed is in the journal of] N-vember sth,. as follows :—" Six sacks green top yellow Aberdeen, at 10d." On same dat-e.-thiei* is a second entry of three sacks of purple top yellow Aberdeen. This means that the' steeds had been delivered. Under datesof NovembarSth, iLfind. an entry of colonial turnip seed at 6d per lb. I do not remember any telegraphic communication between us as to this seed from the sth to the Bth November. . I was a perfect stranger as to pur_h-smg. turnip seed. I did sot know Elder. I was not aware thai-it isadangercras i thing to purchase turnip seed indiscriminately. I am now. In my reply to the interrogatories, I stated that I was not aware that the plaintiff was a nurseryman and seedsman until recently, j some three or four months before tbe interro- | gatories were- adminishered...Tia letter produced, dated January 9th, J .77, was. written by Mr DeVeanx. I never look oi_s» my letter book to see what letters are written, I left the correspondence to my partner, I see the letters received, and make a note of the answers. Tbe plaintiff bad tran? actions with na in seeds amoanring to itIOOO or 41200,, He was in-trodnc-d to mc by Mr Fisher as a person dealing e_te_3i«_y in sepd-. The letter states tbat my firm possessed >Ba»ehinery for' cleaning seed. Thi. refers to rye grass seed, for cleaning- which we base machinery. The entry in onr day book of the Sth. November is as {allows r— '* One ton colonial turnip seed, 6«L'X I am unable to say whether any received by ma between the Strand the Sth Hoyember. Waiati-: had given us an order f as. ■ twrhin B_s_*vwhfe3i*h«*ej^f,samet .dpenfiy in. *f w*#lr *.f«*«9Pr«.

r referred to tbat, and our answer was in refert eace to the seed we had a difficulty in procuring. , There was no other sample bag so far as I know i than Tie one produced. It -was put into Mr _>c j Veaux s drawer j and when he left the firm there i it remained. The seed was not tested as to its 3 germinating power. It would be impossible to have decided, if such a teat had been applied. 5 whether it was purple top, white, or yellow. I i recollect Cleve coming np to see mc on the subr ject of the seed. I may not have mentioned the - name of the person from whom I purchased the seed. I went to Dnnsandel, but do not recollect > seeing any yellow flowers. '■•■•-■• _ -_ James .Dawson deposed to residing at Dun- , aandel. In 1577 he grew a crop of purple, top ,' turnips. It grew well. He allowed a portion • of it to go to seed. Some of it was deaned and i saved, and some of it witness gave to Elder, who resided near him. The seed-sown by wit.7 aess produced a fair crop.,. Witness had grown; turnips for twelve years. They often failed, though it waS as good seed as he could buy. Jf . seed were sown early in a dry season the crop would go to seed. If the land were very rich the result would be a big top and small bottoto. His Honor asked whether Mr Garrick proposed to prove that these meteorologist! conditions applied to the whole of the seal .sold in jtnvercargfll. "Mr Garrick said that be proposed to show that the„failare of the crop was likely to ensue from other causes than the seed being not merchantable. Cross-examined by Mr Macassey—He gave Elder leiva to cut ai much as he coald. He understood that Elder got _d per lb. for it. He heard Elder give his evidence the day before. Thtre were bulbs to most of the plants. The turnips were ploughed down. He got the seed in tbe season of 1876 from seed purchased in town. ' ; George Daniel Etherington deposed to having grown seed for Mr Andrew Duncan for four years. He had been engaged in the trade for seven years. Witness recollected the year 1877. He did not know what the season was a3 regarded turnip seed in Invercargill. ; John Horretl deposed to residing at West Kyreton, and that he had grown turnips for fifteen years. In his experieace, seed produced from turnips which had gone to seed and not bulbed had produced good turnips. His experience had been confined to New Zealand. Cross-examined by Mr Macas*ey—This reference was ; to self-sown turnips, th 3 crop following. He had only tried it for his own needs. .-.,-■■ John Overton deposed to residing at Spring's •Track, and having had fifteen years' experience of growing turnips. If there was a good season the seed of turnips whioh had flowered apd not bulbed would produce good turnips. Under these circumstances the bulb would shrink to about half the size. Turnips, which had gone to seed without bulbing, wonld be valuable for seed to the extent of about half. This is, if 100 acres had been sown and. gone to seed without bulbing the ratio of value between the bulbed and unbulbed turnips would be about' half. Cross-examined by Mr a dry season the valuo~6f bu bsd turnips would'be from £1 to £2 10s per acre. Jn a wet season the value would be from £2 to £4. ' There would be very much more upon them in wet seasons. The ratio would-be the same in wet ' and dry seasons. The bulbs .of the turnips he had spoken''of as producing seed which had grown good seed afterwards must have formed. fie "examined by Mr Garrick—The size of the, bnlb did not affect the production of the seed. ' Edward Amos depo3ed to having grown turnips for some years. If a crop ran to seed Ihe had always ploughed it up. It could have been fed off, but he preferred to sow again and get a bnlb crop. -H-e belisved the bulb con- , tracted to half when it went to seed.' John Greenaway deposed that he had grown turnips for garden purposes. The only effect of sowing seed of turnips which had gone to seed would be to prevent selection. > t >.'-. r ■■ Cross-examined by Mr Macassey—There was always a certain amount of risk about colonial turnip-seed, nnd he never sold it. All his Eeeds ' were imported. .Seed the produce of tuniips Which had not bulbed would produce good crops ' supposing the season were favorable. j To his Honor -The germinating power of the < seed, would not be affected by being tbe r pro_uct of plants which bad not bulbed, it would be in the quality. . . ."ibis closed the case for the defendants«,- s Ti&r Garrick then addressed the jury for the defence. ,-, Mr Maeassey replied. « -, His Honor summed up at some length. The jury returned the following answers to ■ the questions submittal to them, after; an absence from Couit of one hour and ten minutes: — 1. Did the defendants in May last carry on j business as grain merchants?— Yea. 2. W/*s the plaintiff a nnrseryasan and seedsman carrying on business ia Invercargill ? — ' Yes. . 3. Did the defendants in tbe month of November last Bell 15 cwt. weight, mora or less, of purple-top yellow turnip seed instea-1 of Jpurple-top.-white turnip. seed?—The deleudauts con- . tractei to sell to the plaintiff purple-top yellow \ Aberdeen turnip seed, hut delivered seed which j they stated was sotd to them a3 purple-top < turnip seed, but which they did not know whether it was green or yellow. The plaintiff .accepted the '■ seed with• this [knowledge, land s i therefore contract to he modified. >i 4. ,Had*tbe plaintiff any means,of ascertaining ' at the time of the sale whether the seed was of ; the description .known as; purple-top yelliw > turnip and $.tfor use, &c. ? No.. ; ; - 5. Was the said seed purple-top seed? No. > 6..'Was. the said seed merchantable or fit for ' use? N0..,,..--i,« - " ~ : - - 7. Could ,tW defendants; but for thfir own . neglect, have known that the seed was not fit for. ( use, &c. ? Yes " ! . 8; What damages, if any, is the,plaintiff entitled to recover from the defendants ? ■£150, '. ■■■: r ''.-'■:' j '-'■' \ 9. Was there a total failure of consideration? Yes. ',•■■■ The question of special damage was left to the - Court above to decide. ''•;' ■ ' ' The Court then adjourned till 10 a.m. this day, when' the' case of Henderson v the Napier ' Harbor Board will'be taken. :