THE COURTS.

Press, Volume LV, Issue 16546, 11 June 1919, Page 5

THE COURTS.

SUPREME COURT.

(Before hia Honour Mr Justice Herclmaa.) ROBERTS v. A. W. BUXTON, LTD. Reserved judgment was given by ilia Honour in the case of William Roberts v. A. "\V. Buxton, Ltd., J Montgomery and Co. being added as third party. Plaintiff claimed from A. W. Buxton, Ltd., I £1985 12a od damages, for aileged breach of ! contract to supply a quantity of seed to : bo used for tlio purpose of glowing a kind 1 of chicory which, when it had passed through the process of rousting, was suitable for , use in connexion with the manufacture of coffee. In hia judgment hia Honour said:—"As it is admitted by counsel for defendant that , plaintiff, at the time ho bought the seed, j made known to tho defondant company the I particular purpose for which the seed was | required, there existed a warranty or con- . dition as to the quality or fitness of tho seed for the purpose, and, as it has been , abundantly proved that the plaintiff did not get the seed that he contracted to buy and that the eeed which he did get was not fit for the purpose for which he bought it, I there has been a breach of a warranty or j [ condition on the part of the defendant company, and tho plaintiff is entitled to dam- ! ages, the measure of which is the estimated I loss directly and naturally resulting in the ordinary course of events from the breach of warranty." After roviowing the evidence, his Honour Baid: "The problem of assessing proper damages in this cose would, at first sight, appear to be complicated, by reason of tho fact that th» plaintiff miisd his good seed with the bad seed supplied by the defendant company. But, if the evidence points to'the conclusion that the failure of the crop was due to tha useless seed supplied by the defendant company, and to no other cause, then to the extent that his loss flows naturally and directly from such failure, the plaintiff is entitled to be compensated. If, therefore, in the claim for loss arising out of the growing of the crop, credit be given to the defendant company for! the value of the total weight of washed chicory root produced, it cannot he heard to complain, nor can it protest with reason if, _ in tho claim for loss arising out of the drying operations credit be given for the value of the product which the operation of drying has yielded. In the statements of account appearing at the end of the statement of claim, sums have been credited on account of the growing of the crop, and on account of the process of drying. . . . Exact proof cannot be given of the discrcpancv between the proportions of the Roberts-Buxton mixture and the proportion which the good root# produced from the mixture bore to the bad roots produced from tho same seed. It is suggested that the propinquity of the bad j seed to the good seed in the soil militated sgamst' the fertility of the latter, and prevented it from producng its full complement of good roots. About this one can only speculate. This much, however, is certain: (1) The crop which resulted _ from the sowing of the mixed seed was a failure; (2) a small proportion of . the roots produced were coffee chicory roots I a large proportion • consisted of what a witness called 'rubbish ; ! (3) crops produced from tho good eeed belonging to Roberts sown on former occasions by Roberts, by Hayes, and by Fisher, had

ndoubtedly produced crops that were omi- tl ently satisfactory; (4) experiments which p rero mado by Roberts, by Hayes, and by Dr. V [ilgendorf in 1918-19 with Roberta's good p ?ed, and with Buxton's seed (a small quan- ti ity of which Mr Roberts had kept) proved c ucontestably that Roberts's good seed, pro- d uced a large-rooted chicory, suitable for f; oasting, and that Buxton's seed produced li fibrous product, which might be good for v gricultural purposes, but which for drying i nd for coffee mauufactuting purposes vrao l Tactically useless.'' In the# courso of further remarks, hi 3 \ lonour said he was confronted with tho i triking coincidence that the good roots form- f ng part of tho crop produced from the j j Joberts-Buxton mixture were similar to tho j ;ood roots produced in other years by Ro t Kris, Hayes, and Fisher from Roberts's own >eed, and were similar to the good roots iroduced from tho same seed in experiments conducted by Roberts, Hayes, and Dr. Hil- ( jendorf, and tho inferior roots appearing in ] ,he crop produced from the Roberts-Buxton 1 mixture resembled tho inferior roots pro- j iuccd from the Buxton seed in the experi- j ments alluded to. With this evidence in ] bis mind, he had come to tho conclusion ( that, although the proportion which the bad 1 roots won from tho soil in 1917-18 boro to , the proportion of good roots won in the . same year did not correspond with the proportion which tho bad seed sown bore to ( the good 6eed sown, the presence of tho bad • seed in the mixture was responsible for the • failure of tho crop, and for the prcponder- . atico of roots which were frund to bo un- , suitable for roasting. Thiß was on inference , which he drew from tho proved results of , previous croppings with eeed supplied by Mr Roberts, which was precisely Bimilar to tho seed which ho mixed with defendant's Beed, and from the experiments with Mr Roberts's eeed and with defendant's seed, carried out by Mr Roberts and Dr. Hilgcndorf, , and Mr Hayes, to which he had alroudy referred. Tho' fact that a calculation based on a sowing of 31b of eeed to the acre showed that only 12 or 13 acres out of the 27 acres sown might have been laid down with Buxton's *sced did not seem to him to bo. of anv importance, in view of tho conclusion ho "had come to that Buxton s seed was tho tole causo of all tho mischief. He held that tho plaintiffs right to relief in connexion with tho growing of crops of chicory was confined to tho difference in ■value between tho unsatisfactory crop produced and that which would have-been produced had the proper seed been supplied by defendants. In the absence of exact data, and in view of tho fact that, in tho previous year, an expenditure of £529 12b produced a crop of 240 tons of the value of £780 he would assume that an expenditure of £628 would, in the year 1917-18, with good seed, have produced a crop of tho same size and the same value. The amount then that Mr Roberts was entitled to recover ill respect of the sowing and harvesting conducted by Hayes was the difference between £349 19s 9d and £780, namely £330 0s 3d. On the same principle ho was entitled to reeover, in respect of Fisher's crop, the sum of £121 0s 4d. and the sum of £216 2s Gd ill respect of his own crop, or a total of £667 Ss Id, for loss sustained by him by growing crops of chicory frßm seed, tho greater part of which was supplied by the defendant company. Ho thought it was reasonable" to put the plaintiff's loss, on account of his chicory drying operations, down at £1096 7s lOd. For the purpose of deciding the rights of Roberts against Buxton and Co. it was not necessary for him to determine tho matters in controversy between Buxton and Co. and Montgomery and Co. These parties might bo bound by his finding on the question of damages, but other matters upon which they ■were not in agreement would have to be determined in other procedings. He awarded the plaintiff the sum of £17G3 10s lid as damages, made up as follows: —On account of sowing and harvesting chicory root, and delivering it at the plaintiff's factory £667 3s id; on account of manufacturing chicory from tho raw product, £1096 7s lOd. Plaintiff was entitled to costs as per scale, witnesses' expenses, and disbursements to bo settled by the Registrar. Ho made no order at present as to the costs of _ the third part?; this matter could be mentioned again, and, if neccssary, argued. Mr S. G. Raymond, K.C„ with him Mr H. J. Boswick, appeared for plaintiff; Mr M. J. Gresson, with him Mr K M. Gresson, for defendant; and Mr Geo. Hunter, with him Mr M. Myers, for the third party. ALLEY v. HOPKINS. The hearing of tho case, Henry J. Alley, farmer Burnhara, v. William Allan Hopkins, of Christchurcb. land agont, claim lor £2500 damages, for alleged misrepresentation, and £400 damages for' alleged failure to carry out an undertaking, was continued before his Honour and a special jury of twelve. Mr M. J. Gresson, with him Mr K. M. Greseon, appeared for plaintiff, and Mr S. P. Skerrett, K.C., with him Mr A. C. Fryer, for defendant. ... .. , Mr Skerrett applied for a non-suit on both claims. .... . , His Honour eaid ho did not propose to withdraw the claim in regard to alleged misrepresentation from tho jury. Mr Skerrett thereupon applied for leave to apply for a non-suit later on. His Honour sari he would withdraw the second part of the plaintiff's claim from the jury on the ground that tho alleged contract to advance moneys was too indefinite and unoertain. He granted Mr Skerrett leave to apply for a non-suit on the fust calico of action within seven days of the conclusion oi the trial. . , Mr Skerrett called several witnesses on the question of value. . Sidney Smith, farmer, Lincoln, said he had worked on tie farm in question for four and a half veais, practically as manager for bis father. " He had left the placo in 1907. They carried about 1000 sheep on the place, and up -to 2000 at times for periods of from two to three months. He had inspected the farm rc-cently, and found it in a deploraole state'. wliiLt the pasture was run out. The culting down of a plantation on the property reduce-i tho value of the place by a eubstani am ount. Witness estimated the value 1 oi the property when he inspected it at £11 pe- acre. If it wore> put in proper order he wiiild put a value, of £*i on it. To >Lr Grwson: He would not b<s Eurprised to'know that Ills father had sold the property at £~ 15s an acre. . To Mr Skerrett: The farm had cameo other stock in addition to tho sheep which La had fattened off and sold. George Cooper, farmer, Southbridge, eaad he owned the Aylesbury property about mm or ten years rgo, and was farming it toi eighteen months. He paid £3 5a an acr« and sold it by way of exchange _tt 3 Mr Belcher for £11 an acre. He carriti olese on SCO ewes and 500 lambs, and croppec ikcr.it 100 acres. In n,-ld.t:nn to his ew he bought stores, possibly 200, and fai-venec them. He thought the land was wortn £I'p 3r acr® when he sold it, and cohjidere-. £13 per acre was fair value at the presen tU John Richard Belcher, farmer, Christ church,'said he was the second mortgagee o the Avlesbury farm, he having lt< mortgage over from his brother. , He taav

ho property. A practical farmer would row artificial feed and renew his grasses. Vitnces said he had recently inspected the iroperty, and found it in a bad condition, i'hil-o tho grRMc3 had run cut. He did not onsider the plantation should have been cut town. It made a difference of anything rom £1 to SOs per acre in the value of tho and. In its present condition the property ras worth about £11 per acre, but if it wtfre mproved one would get anything up to £12 .0s or £13. for it. To Mr Gresson: He wa3 not connected vith Mr Hopkins's office. Ho wa3 not on ntimate terms with him. He had been on :riendly terms with him for .three or four cears.' He frequently made use of Mr IToprina's office. H« might have been there four limes last week. Ho was occasionally employed by Mr Hopkins to do valuing for iim. The> class of land forming tho subject >f the action had increased in vaiue by £1 3i 30a per acrs in the last four years. In 1915 its value would be about £10 It's. He would put about one-third of artificial feed in every yeax to carry. a_ ewe and a half. It ivas possible to make it carry two ewes. It would upon tho success of one's artificial feed to make it carry over two ewes to th« core. Bumham land which would carry a ewe and a half to tho acre waa worth £12 or £13. , ~ . James Lyon, eheepfarmer, said ho had inspected the Aylesbury place in. April last for the purpose of buying it in exchange for a property of his. The price put upon the Aylesbury property and an adjoining 250 acres ] of lighter land was £11 10s, which witness considered waa its value. If Alley could go op with'the original agreement witness was propared to take his place still for £11 10s. To 'Mr Gresson: He had offered his property to Mr Alley twenty-one days after he bought it from a Mr Macdonald. Ho offered it to Mr Alley for £5 per acre more, but Jie coneiiered thi3 was a fair value and not an exchange one. William Munro Smith, retired farmer, Christoliurch, eaid ho knew the Aylesbury farm when his brother farmed it. He had inspected it again two days before, when the graea had run out, and it was in a generally bad condition. He valued it at £11 per a<cro in its piosent 6tate, and if it wero re-grassed and repaired lie would add 80s per acre to its value. Tho cutting down of the plantations depreciated the selling value of tho land considerably. He did not think tbero waa much differenoe in valuo between 1915 and tho present day. , . Herbert Henry Cook, land agent, Christchurch, said he knew tho Aylesbury farm. Ho had been requested in April last to moke a report on tho property at the request of Messrs Bowron and Smith, Jazneo Lyons mortgagees In his report he said the. land would carry ono and a half sheep to tho acre, and it could readily be sold at £12 an acre. This valuation included 276 acres of leasehold land. On the 718 acres only ho would placo a capital volue of £13 10a per acre. In an ordinary season, with the place in proper order, it would carry 1000 owes a-nd about 400 dry sheep, and would fatten the lambs. Land this last twelve months was up fully from 5 to 10 per cent. After the action commenoed Alley reduced the price of his land and the carrying capacity from one and a half ehcep to one. This would be about the beginning of May. He considered that tho cutting down of the plantations depreciated the value of the land. William Allan Hopkins, the plaintiff, said he dad not profess to vaJue sheep or agricultural country; ho confined his valuation to city and suburban property. Witness sari the advertisement which had been referred to had been drawn up by Clarence McFadden, a member of his land department. McFadden, who was now at the front, had ixH spec ted the farm eeveral times. Alley never showed witness tho printed advertisement, nor had he 6hown it to witness's clerk m his presence. Alley appeared to have inspected both the Aylesbury and a Hororata property before he came back to interview witness. At this interviow Alley eaid ho could not porsibly acquire the Aylesbury property before disposing of his GeraHine farm, for which he wanted £18 an acre. The prioc of Aylesbury, £14, had been given him already. It was arranged that day, however, that the price should be £13. It waa untrue that he (witness) wanted make an exchange there and then without his inspecting the G-eraldine property. Except wha had been to'rd him by the late owner, he had no idea what stock tho farm carried- There wa© no statement that ho was to find al] stock. Ho had to find Alley reasonable finan. oial accommodation in order to buy 6tock There was no discussion as to the amount, As far as witness was concerned, the carry ing capacity was not gone into at all; it wa< absolute!-• untrue that ho gave any guaran tees. The following week witness went dowr to GeraWine to see Alley. Nothing wai said at the interview about the carrying capa. city of Aylesbury. Witness agreed to giv< him reasonable financial assistance, and <Us< to capitalize the first year's interest. Th< amount of financial assistance was not dw cur«od, nor any mention mado of £2COO. Th< price of tho Aylesbury property waa £9334 subject to a first mortgage of £4561 and : second of £1292. The reference in the con tract to a third mortgage of £4000 was to tin balance of purchase money owing to him b; ono Craighead. At Alley's request he par anted an overdraft of £500 at the bnioi Bank early in December, 1915. Alley dy. ' not ask for more, and made no objection t witness guaranteeing it at the bank ra-the . than advancing it himself. What had bee: • agreed upon was that witness should giv< Alley reasonable, financial nccommoaation. had no recollection of saying he was th< financier, and it was Alley's duty to run tin At' this stage the Court adjourned till 1 | o'clock this morning. PRISONER SENTENCED, i (PRESS ASSOCIATION TELEGRAM.) ! DUNEDIN. June 10. > Walter James Robert Keen, who had plead ! cd guilty in tho Lower Court to having but ' glariously entered the postmasters reswenc ' at Milton and the Post Office Savings Bank 1 and stealing £520, was brougnt up lor sen ' tence at tho Supremo Court this morning ! i He had also pleaded guilty to forging, a .e. gram and stealing a colt at £* a |' ar ? r! h • - Justice Sim said thft it would beUer, 11 ■ the prisoner's own interests, i.o dep -• , of his liberty for a time in order that h 1 might bo cured of his fondness f , ' racing. He would be detained for re form 3 tivo purposes for a period of not 1 three years. r I MAGISTERIAL. 1 , TUESDAY. 1 (Before Mr S. E. McCarthy, SAL) 1 BROKEN ORDERS. 1 Elizabeth. McKjii-'nt (Mr L. Ceo), charge; t with breach of a r.rohibition victed and fined £2, in default day £ 1 imprisonment. , . 1 William Irvine cn a chargo of enterin * licensed premises durirg the <^ °L--7 prohibition order, waa cos vac ted " L

charged. and on a further rliwpe of broach of prohibition order was convicted and fined £•2 ar.d costs, in default seven days' imprisonment. , Richard. Carney, for breach of a prohibition order, was convicted and fined £5, in. default 11 days' imprisonment. MAINTENANCE. Mr Cassidy supported an application thai. ■ Edward Gui'lford (Mr Purnell) bo adjudged the putative father of an illegitimate child. After hearing evidence the case was diemissed, with coats for defenda.nl. ; Isabella Baxter (Mi Lucas) claimed main- ! tcnance from her eon, Solomon Shah (Mr Doug-all). An order was in ado for 3s 6d per j William Henry Pengelly did. not appear *0 defend an application by his wife, Edith Anne Pengelly (Mr Cuningham), for maintenancc, separation, and guardianship orders. ! The orders were made, maintenance being fixed at the rat© of £2 per week. Orders were made ia favour of Marion Florence Smith (Mr Cuningham) against her , husband, Joseph Allan Smith (no appear- j ance), for innintenanoe, separation, and guardianship, maintenance being fixed at £1 5s per week. In Isabella Somerville (Mr Cassidy) v. Robert Somerville (Mr Raphael), application lor variation of maintenance and guardian- | ship orders, the guardianship of tho four- I year-old boy, who had previously been under I tho charge of defendant, was in the , mother, and maintenance for the mother and I tliree children was fixed at 33s per week. | In Rose Annie Robertson v. Alex. Robert- j son (no appearance), application for varia- | tion of maintenance order, defendant was allowed seven day 3 in which to find eccuritics, himself in £200, and two sureties of £100 or one of £200. For disobedience of the maintenance order defendant was convicted and . sentrnoed to ono month's imprisonment, fail- I ir.g payment. _ _ ] For disobedience of maintenance orders in ; respect to their wives, Joseph Poye _ and Leone Dominica Sorra were each convicted and sentenced to It days' imprisonment, ao warrants to be issued unless, applied for.' George Egan pleaded not guilty to a charge of disobedience of au order for the maintenance of his.wife, Eliza Egan- Ho was convicted and sentenoed to three months' imprisonment failing payment. JUTE NILE COURT. A 14-year-old boy, charged with not being; tinder proper control, was admitted to probation for 12 months, and ordered to go baxk to school for another year. Two boya, aged four and three year®, were committed to the Chriatchurch Jtoceiving Home, to be brought up in the Church of England faith. Five boys, whose ages ranged from 11 to 17 years, pleaded guilty to wilfully damaging a house at Ladbrooks, the property of Frank SarsSeld, and were convicted and ordered to come np for sentence when called upon, the parents of the boys having made good the damago done. A '14-year-old boy, charged with theft of a bicycle lamp valued at 4s 6d, a bicycle pump and tools valued at 13s 6d, gloves valued at 3s 6d. and a bicycle pump valued at 4s 6d, tho property of different persons, pleaded guilty to all the charges' and was convicted and ordered to come up for sentence when called upon. He was ordered to report weekly to tho probation officer for months, to be in his homo by 6 p.m. daily, "and to return the stolen, property to the owners. Two boys, who admitted the theft of crackers valued at 80s, were admonished and ordered to come up for sentence when called upon, and to report weekly to tho probation officer for 12 months.