DISTRICT COURT.

Press, Volume XXXI, Issue 4260, 25 March 1879, Page 3

DISTRICT COURT.

Mokday, Mabch 24.

[Before His Honor Judge Ward.] The sittings of the Court were resumed at 11 a.m. HOFMBIBTBB'g TEXTS-BBS T MAB-B. His Honor delivered judgment in this case as follows :—"ln my opinion judgment in this case must be given for tbe plaintiff. Defendant avers that he bought the engine, tbe subject matter of this action, for £70 ; that one Kimbell wished to purchase it from him, but that he refused to sell, Kimbell being a bankrupt who had not obtained an order of discharge; and that Kimbell then negotiated the purchase on behalf of one Hugh Wilson. Wilson states that Kimbell told him that he was getting the engine from Marks on a bill of sale ; that Marks said he could not have it (the bill of sale) in his own name, as he wss insolvent, and that consequently he (Kimbell) asked Wilson to come down and sign it, saying he should have no trouble about the matter. Wilson further states that he came down and signed it after it was read over to him at Mr Slater's office, but had no conversation then about the matter. That he never bought the engine, never authorised Kimbell to purchase it, nor had it in his possession, never paid or received any money in respect of it, and had nothing to do with Kimbell's business. I may here remark tbat the bill of sale does not refer to the purchase of the engine, or of any of the articles specified in the schedule. Defendant swears to a certain conversation with Wilson at Mr Slater's oBioe; but Wilson states there was no conversation, and Mr Slater, who was present, don not recollect one. I cannot, therefore, rely on the defendant's evidence in this particular. Wilson further declares that he never authorised Kimbell to carry on business or to . sign bills iv his name ; and that Kimbell only informed him that the business was in his name a short time before lie left. Wilson afterwards signed certain documents at the request of Kimbell and Marks, which certainly amount to acknowledgments of his being a partner in the firm of Wilson and Hofmeister. But I hold it proved that, at the date of the bill of sale, he was neither the purchaser of the engine, nor actually or in appearance a partner of Kimbell. Under these circumstances, it is clear that he had no estate to convey in the scheduled chattels, and his signature to the bill of sale was consequently worthless. The sale was made to Kimbell before the bill of sale was signed; and, according to Hofmeister, sundry paymentwere made to defendant on account of the engine by Kimbell and himself. When Kimbell left, Hofmeister took over the engine as part of the assets of the firm ; and, on the bankruptcy of the latter, these assets vested in the trustee of his estate, who is therefore entitled to recover in the present action. It was stated that the engine fetched in gross £100 1 but there are expenses of sale. Judgment will be given for £90 and costs. MASON, BT_UTH__B AKD CO. V WAIXKB. Mr Harper now opened the case for the defendant. His evidence would mainly be that of the defendant, and he should submit that as a matter, of law he would be entitled to consider the agreement between parties as purchaser and vendor. If he failed to convince his Honor of this he should then submit that if the parties stood in the relation of principal and agent, the plaintiff had failed to carry out the conditions of the contract entered into, because there had been several weeks' delay instead of the plaintiffs having, as instructed, procured the machine as speedily as possible. As a matter of fact the plaintiffs might have telegraphed to San Francisco so as to have obtained the machine as speedily as possible ; the more so as time was the essence of the contract. He should, in his defence, rely upon the words in the agreement, " Order by first steamer from San Francisco," which showed that defendant required the utmost dispatch. He should also submit that plaintiffs might, if they so desired, have got it in time. Mr Harper then c_led evidence. John Waller, the defendant, deposed to having given _le plaintiffs an order for a planer and matcher in April last, and that he had asked them to telegraph to New York to their agents, bnt Mr Mason, one of the plaintiffs, did notcensider it advisable. It was then understood that the New York agents of the plaintiff were to telegraph to the San Francisco agefits of the manufacturer. The order was then taken on the understanding that if it did not come by first steamer it was to be cancelled. The mschine arrived j sod was placed in the yard of the witness. The case was broken on the top, and witness could see that the machine was damaged. Witness communicated this fact to them in writing. [Correspondence passing between the parties as to their respective liability on account of the damage in the case put in.] A survey was held, at which Mr P. Duncan attended on behalf of witness. He never received a copy of the report made by the surveyors. On plaintiffs sending witness sn invoice and acceptance he declined to accept the bill on the ground that the machine was not what was ordered, viz, he had received a broken instead of a sound machine. Discounts were allowed on American goods from S per cent, to 85 per cent. In the English catalogue pat in 45 per cent was allowed as dis-

count. If witness had understood that he undertook any risk he would not have given the order. In cross-examination the witness stated that he gave positive inst—lotions to the plaintiffs to instruct their New York agents to telegraph to San Francisco to order the machine. Ho had never off t red the machine for sale. Frederick Cross deposed to the defendant telling him, in April, that he had been giving an order for a machine from America. Witre— told defendant that the machine ought to arrive within three months. In cross-examination the witness deposed that in all cases of indenting the risk was taken by the person for whom they were indenting. W. B. Macbeth deposed to the practice of the firm with which he was connected as to indenting goods. Peter Duncan gave evidence as to the survey held on the machine which formed the Bubject of the action. It was perfectly useless. Castings could be made here if the patterns were made. Ernest Waller deposed to the arrival of the machinery at the defendant's yard, and to his signing the receipt produced for it, as being in good order and condition. This closed the case for the defence. Counsel on both sides having addressed the Court, His Honor said he would give judgment next day at 2 p.m.