SALE OF SHEEP.

Clutha Leader, Volume XLII, Issue 88, 12 May 1916, Page 2

SALE OF SHEEP.

A QUESTION OF PRINCIPLE. JUDGMENT FOB DEFENDANT.

At the Balclutha 'Magistrate's (Jourt on Tuesday, before Mr 11. A. Young, 'S.M., David Scott (farmer, '.Stirling) claimed from A. L. Joseph and Company (Freezing 'Company, Christchureh) the sum of £1 i:is, being balance alleged to be due on the sale of 131 sheep sold by plaintiff to defendant's agent (John Andrew 'Mathewson). Mr D. Stewart appeared for plaintiff and 'Mr Payne for the defendant company. David Scott said he was a farmer, and in addition fattened stock. By arrangement Mr Mathewson (agent for Joseph and Company) came out from Dunedin 011 February 4 and inspected some sheep. He (witness) understood that it was wethers Mathewson wanted. Witness told 'Mathewson the price was 265. Mathewson said he would give 25s 6d liett cash, and witness accepted, and offered, as it was sale day, to draft the siieep. Mathewson said he would rather do the work himself. Mathewson first put the sheep through the race, and afterwards returned the sheep he thought best to the 'pen and raddled them. He came across a ewe when drafting, and witness told him to leave it. Mathewson also came across a young ram, which at witness' request was also loft. About 80 wethers were rejected. After he (Mathewson) finished drafting he counted his sheep, there being 131. Mathewson asked witness to truck the sheep,to-him on the Monday, which lie diil. Witness counted them into the truck and found the number 131. To 'Mr Stewart: 'lie was not aware there were any ewes in the lot. 'Mathewson was given a free hand to reject anything that diil not suit him. From the time Mr Mathewson left the yards until witness shipped the sheep they were not j interfered with as far as he knew. About three weeks later witness got a cheque for the sheep from the defendant company. The sale note and cheque were for 125 wethers at ,25s fid and six ewes at £l. Witness wrote stating that he had not sold any sheep at £l, and state.l, that if the deficiency (£1 13s) was not paid within eight days he would place the matter in his solicitor's hands. Defendant replied stating that there were six old ewes in the lot, aid £1 was a liberal price to pay for them. In reply to 'Mr Stewart witness said that if there were any ewes in the lot they would be in tip-top condition. A week before 27 wethers were sold for 28s (id and five ewes for 28s. These sheep were from the same flock as those purj chased by '-Mathewson. To Mr Payne: He sent some wethers in February to a sale at Burnside, which were purchased by Mathewson. Witness then suggested that Mathewson should come down to .Stirling and see witness' sheep. This Mathewson did, and inspected the sheep in witness' yards. At that time 'Mathewson had come down to biiy wethers. Before he commenced to draft the sheep lie toid Mathewson the price was 2(is. That was before any sheep were drafted out. If Mathewson had left the drafting to him j he would have drafted the best sheep in the yards. Mr Mathewson bought on trucks, Stirling. Witness knew that freezing ewes wore not as valuable as j wethers, but his ewes were not freezing ewes, but butchers' ewes. Freezingewes sold at from 10s to £l. His ewes would be worth more than wethers. Witness knew that Mathewson was buying for freezing purposes. The ewes (dressed) that lie sold would weigh over 701b. If his ewes were only 561b they would not be worth as much. He did not think they would be worth more than. 20s, that is if they were freezingsheep. Mr Payne submitted that the plaintiff' must be nonsuited. There were three defences to the action. The first was that wethers were purchased, but some ewes were delivered, 'ill' Scott did not think lie had sold any ewes. 'Mr Mathewson did not think he had bought any ewes. Secondly, if it was that there was a contract, then there was a sale of sheep warranted to be wethers, and Mr Payne deduced legal argument to show that there was a breach of warranty by delivering ewes. Thirdly, Mr Payne submitted that it was a ease that could be dealt with under the equity and good conscience clauses of the Act, both parties contending that there was a principal at stake. Defendant would be quite satisfied to have the matter dealt with under the last-named clause, as all the equity and good conscience were on his side. John Andrew Mathewson said that he was a sheep buyer, and represented Joseph and Company, Christchureh. lie remembered purchasing a pen of wethers at the Burnside saleyards in February for 26s 3d. They were the property of 'Mr Scott. The latter asked witness to come down and inspect .some more of his wethers at Stirling. Wit- . ness did this. Witness arranged to pur- , j chase two trucks of wethers at 25s 6d.

He ran the sheep off aniT marked them. He drafted the sheep for condition only. He had rejected a ewe. The slips he received from the freezing company showed that there were 125 wethers, averaging 57.861b, and six old ewes, averaging 561b weight. At that time the price for wethers was 5d per lb and ewes 4:} d per lb for best quality. Mr Scott was credited with Jd more than any company was giving at that time. The Government fixed the prices, the value being fixed on the difference in the price of wethers' and ewes' skins.

To Mr Stewart: He could not say what price Mr Joseph received for the sheep. He got the slips from the freezing company on February 9. Witness had had a lot of experience in buying sheep, and it was quite possible when in a hurryto pass ewes for -wethers, Mr Scott gave him a free hand to examine the sheep. 'Mr Scott told witness ta leave whatever sheep hs Sic! net wjot.

Mr Mathewscm (recalled) stated that according to the returns the ewes in dispute averaged 561b. Butchers' ewes would average about the same price. In February a wether's skin would be worth about 2s more than a ewe's.

John Wilson said he was manager of the stock and slaughtering department' at Burnside. For freezing purposes I there was a difference between ewes and j wethers. In February last ewes were about 4d per lb and wethers sd. lu February a ewe's skin would be worth about .'is 6d and a wether's 5s 6d. That was for sheep about 561b iu weight. In February a 561b ewe would be worth about 18s 6d to a butcher. It would not be worth £]. He remembered 131 sheen arriving from Stirling at Burnside. There was no possible chance of the sheep being mixed at Burnside. To Mr Stewart: All the sheep that arrived at Burnside passed through witness' hands. 'He had never all the time he had been at Burnside heard of sheep being mixed there. This closed the case for defendant. Counsel addressed the court at length, Mr Stewart contending that if the wrong sheep were sent they should have been returned. The mistake was due to defendant's agent (Mathewson) being in a hurry at the time of drafting, and not waiting to carry out his work properly, lie was given an absolutely free hand to examine every sheep.

The magistrate in reviewing the evid-' ence stated that there was nothing in ' dispute between the parties as regards ' fact. The position really was tln>t at Burnside plaintiff arranged with defendant's manager to visit plaintiff's farm to inspect some wethers. This defendant's agent did, and a price (25s (!d) was.agreed upon. It was plain that .Mathewson relied on plaintiff's statement that the sheep were wethers, ami purchased on that assumption. The fact that '.Mathewson picked out -the sheep on plaintiff 's representation should not I be a warranty. Plaintiff knew that -Mathewson drafted the sheep merely to get the number and condition jf the sheep. The plaintiff was quite honest about the matter, and stated that he was quite satisfied that the sheep were wethers. The sheep were delivi-red by the plaintiff at the railway station, and it was quite evident that six ewes were included in the number. The plaintiff knew the destination of the sheep was the freezing works, and that t.'iev was little chance of them being seen again by the defendant or his agent. The whole question was whether the fact that the sheep were sold as wethers constituted a warranty. It was quite, clear that Mathewson 'accepted plaintiff's statement that the sheep were wethers as part of a ront-ract, and the plaintiff knew that defendant's agent was relying on his statement. Plaintiff alsb knew that Mathewson was in a hurry to get away. The magistrate found that the fact that the sheep were sold as wethers amounted to a warranty. That being the case there was a breach of the warranty, six of the sheep being ewes. It was quite clear that these ewes at the time were not worth more than 20s. Judgment would be given for defendant for .CJ I:4s, court costs 4s and £2 13s -id witness' expenses.