DEAL IN SHEEP.

Press, Volume LIX, Issue 17941, 8 December 1923, Page 7

DEAL IN SHEEP.

STOCK AGENTS SUED. A QUESTION LIABILITY. Tho case in which Robert MeElhinney, stock dealer, of Ashburton, sued Pyno, Gould, Guinness, Ltd., stock agents, for £9722 lfc. i„ connexion with a sheep deal that was alleged to have been entered into in December, 1919, was continued at the Supreme Court, yesterday, before' his Honour Mr Justice Adams, and a special jury of twelve.

Mr J. H. rphani, with him Mr C. S. Thomas, appeared for the plaintiff, and Mr M. J. Gresson, with him Mr D. E. Wanklyn, for tho defendant company.

Plaintiff alleged that on December Ist, 1919, the company had on its books for sale on his behalf 3250 ewes. The company's agent, Bert Anderson, brought Daniel Byrne, an Ashburton farmer, to his place, and the latter bought the sheep. Byrne became ill, and it was stated that lie had died. The company had paid plaintiff for 150 of the sheep, but bad refused to pay tor the remainder, 3100, or their feed. Plaintiff had found feed for the sheep from that date of the transaction, until the present time, and ho had also dipped and shorn them. For the sheep, feed, and other items, he claimed £9722 16s. Mora Evidence for Plaintiff. Thomas Hurley Slade, clerk, residing at Timaru, said he went out to McE'hiuney's farm with Anderson and Byrne. Someone suggested that he should write out the sale note. Consequently *t the dictation of Anderson or one of the others, he wrote in Anderson's pocket-book, "from McElhinney to Byrne, 80C0-odd sheep, at thirty something. - ' It was signed by Byrne, MeElhinney, and Anderson. Later he wrote out another note of sale of sheep from Byrne to MeElhinney. He saw the mob of sheep being counted. Cross-examined, witness said he did not remember any details of tho conversation between the men regarding tin; sheep. He could not say what had been agreed to regarding delivery. Murdoch Joseph McKay Lloyd, formerly an auction clerk for Pyne, Gould, Gu'nness, Ltd., at Ashburton, and now a farm labourer, explained that when a sale was made the first entry was made in a rough diary, and it was then carried into the privates smiles book. The auction clerk then wrote out the account sale and made the entr-f imthe auction journal. "Witness described tho meeting in the barber's shop. Anderson gave him tho account sale note for 150 sheep, witness saw there was nothing wrong with it, and gave it back to MeElhinney. Anderson told witness he had "let the cat o«t of the bag," or words to that effect, and seemed very cross. Witness did not know there was anything wrong at that time, and he left the shop. Some time went to Kaikoura with a man named Munns.

To Mr Gresson: Munns and he went to Rangiora in McElhinney's _ car. Munns was going on his own business, but he stated that he would look out for a man that the plaintiff wanted to see. If a deal fell through the entry would not get past the rough diary. The entry regarding 2300 sheep never got past the diary, but from that he would not infer that the sale was off. The sheep --might not have left the vendor's place, and the entry would nob be made in the private sales book, even if delivery had been taken, if the sheep had not left the place. To his Honour: If the entry had never been made in. the private sales book, the sale could never have been made. „

' To Mr Thomas: If the sale was off the entry in the rough diary it would have "cancelled" written across it. That was not the case with the entry regarding tho 2300. sheep. Responsibility of an Agent.

- Edwin William Mason Cole, accountant for H: Matson and Co., stated that if A entered into a private sale through C, a stock agent, to C, and the stock was delivered from A to B, without instructions from C, then the agent was not responsible for the payment. If, however, a stock agent, say, Matson 'and Co., sold stock from A to B, and told A to. deliver,-the firm was responsible if tho stock was delivered.

His Honour; Who is responsible in the circumstances set out by. plaintiff in his evidence? The agent had ascertain lino of sheep on his books . on account of a ivendor, and he takes the buyer to where the sheep are. The owner says, "The sheep are ftandy, and you had better get delivery." The salesman of the agent stands by and says nothing, but he is appointed by the buyer to count the sheep. * Witness said that in those circumstances, 'he would say the agent was responsible. His Honour: Do you know of any case where the agent was not paid by the buyer, and did not expect to bo paid by him, and where the agent paid the price of the sheep?— No. Witness gave it as his opinion that in the facts of the present case, as outlined in McElhinney's evidence, the agent was responsible. In cases when clients had failed to pay their debits, the firm of Matson and Co. did not re-debit against the vendor, hut would stand the loss. When a vendor had an account, the sale was credited to him, and debited against the purchaser. Cross-examined, witness said that in every case the firm debited the pi?r r chaser with the purchase price. The custom was that the agent accepted liability if he stood bv and watched delivery. Mr Gresson: The mere presence of the agent when delivery is given makes him liable?— Yes. _ Cole stated that the agent was liable, in that case, whether he joined in the counting of the sheep or not. The general custom in Canterbury was that if the agent was present he was personally liable. Mr Gresson: Why should his presence mjske him liable?— The reason is that it is the agent's duty if he takes a

buyer out to a vendor and sells stock to disclaim responsibility before delivery, if he is going to* disclaim it at all. The matter of counting has nothing to do with it. In answer to further questions, witness said that the duty ot the ordinary agent was to effect a sale, and procure a binding contract. He had never known of a case where tho agent, in pursuance of custom, had made a payment out of hia own profit without charging it to the purchaser, or trying to get it from him. If the agent was not present at the time of delivery, he was not responsible. Frank L. Butler, auctioneer for the Loan and Mercantile Agency Co. Ltd., Cbristehureh. said the stock agent became liable for the price of stock sold through him if he caused delivery to be made to the purchaser. If' the agent took part in the counting of tho stock, he was liable. Cross-examined, witness said that until the agent gave delivery of the stock, he could not be held liable. He should say that if both buyer and seller counted the stock and the agent merely stood by. he would be responsible because he allowed the deal to go through. It would depend on the circumstances whether the agent could be liable, when the sheep remained with the seller. It would depend on when delivery was given to the purchaser. He had never known of a case, where the agent had been held liable when the goods remained in the possession of tho vendor before delivery, or when the goods had gone back to the vendor after delivery. Charles Melville, auctioneer for Dalgety and Co., Ltd.. said that in a case where an agent merely stood by that agent would be responsible. It wa3 the custom of the agent to get a tally of the stock and see that the conditions of the sale were carried out. The agent would accept responsibility if the vendor and the purchaser arranged to give and take delivery on the same day as the sheep were sold, but nevertheless made a further arrangement that the sheep should remain on tho property of the vendor. Donald McDonald, auctioneer for the Farmers' Co-op. Association of Canterbury, said that counting constituted delivery, provided representatives of the vendor and purchaser were present, and that the time of delivery was settled at that time. In the circumstances of the case as alleged by plaintiff, delivery was given when the count was made. To Mr Greeson: If the agent merely stood by, without counting, when delivery was given, he was liablo. The agent was not liable if he was not present. He admitted that the custom seemed rather absurd. To Mr Thomas: If he was at a salo and delivery was about to be taken, and his firm did not wish to be liable, he would tell the vendor so. Ernest Goss, farmer and dealer of Tinwald, said it was a recognisod thing that the vendor looked to the agent for payment if he was present when delivery was taken. On several occasions when he had made private sales and had not received the money, he had put the transaction through "the firms which were running the men," and they had credited him with the payments. The custom was that, when delivery was given, the agent was liable, whether he was present at the sale or not, so long as he made the. contract. I William John Daly, of the firm of Daly and Manchester, stock dealers of Waimate and Ashburton, said that in the circumstances, as set out by MeElhinney, the agent was liable. In his experience when he had sold through an agent, he had always received his cheque from the agent. If the agent had arranged delivery and was not present when delivery was given, he was still responsible. •Mr Gresson asked what witness would do if the man who had bought his sheep through an agent, dropped dead, and turned out to be a bankrupt. Witness:. J. suppose I. would drop itThere wouldn't be much chance pf getting anything. Mr Thomas: If the Farmers' Co-op. took a buyer to your place and sold a line-of sheep, and the man dropped dead and left no estate, do you consider that you would have a claim against the N.Z. Farmers' Co-op. for tho purchase price? —Yes, ~ Evidence was* also given by Gordon KnudsrfA, William McKay, farmer, of Tinwald, Oliphant Denham. Eraser, contractor at the Addington yards, Lancelot Clement McLeod, sheep drover, of Ashburton, Peter Moody,' drover and shepherd, Ashburton, and James Pratt, electrical engineer, of Dunedin. . . , . Mr Uphara said he wished to call another witness,-who Was not present. Mr Gresson said he would hold over a. motion for a nonsuit until after the witness was called- ■. The case was then adjourned until Monday at 10 a.m. ■