SECOND GROWTH.

Dominion, Volume 1, Issue 202, 20 May 1908, Page 3

SECOND GROWTH.

STOBY OF A POTATO DEAL. SUPREME COURT JUDGMENT. _Mr. 'Justice Cooper delivered judgment l at Wanganui 'recently ■in a case in which the plaintiff,-John Rendell;"' a farmer * and produce dealer, of, Kaikqkopu, >near Wanganui, sought to recover from the defendants, W. and G. Turnbiill, of AYcllington, £212 Is., balance on 600 sacks of Northern Star potatoes, dolivercdi by liira to ' them,, and £49 12s. damages for refusal to take delivery of a • further 16 tons. Terms of Contract. ." , t According to the text of His Honour's judgment;'\the transaction was based -on a written agreement .for , plaintiff,: to deliver, .'on..-truck' at .Aramoho; all, the, table potatoes on his -paddock, at £3 las. per' ton, sacks 4d.; each.v.Tho estimated quantity 75 i,tons. 'Six. hundred sacks were delivered,' weighing ,54. tons 14cwt. - lgr;, but, on No- , "yember, ,27 , the,;defendants,.-. after freouent complaints,j giive, the plaintiff final notice : to deliver .'no moro potatoes. ..There were then 49 sacks awaiting delivery, and about 16 tons, still undug and thefarmer' sold/the 49 sacks for £4J.75. 44. Ho accordingly/claimed for the.6oo 'sacks delivered,, . the-16 tons undue:; and the difference on the 49 sacks he sold by auction, less certain items of freight and, sacks. '■ ... The othar Side. V ■ ■ V

Tho defence was, in brief:—(l) that tho Bale was of specific goods, which goods had,' without • the 1 knowledge ■of the parties, perished at the time the contract was made; (2) that they were not merchantable'and fit for human consumption .as impliedly warranted -in.the contract.; (3) that, they.-were, subject to a . defect not discernible. on examination, and did not corresioond with tho description".in the contract/ -f . Defendants counter-claimed for £260 dam■agos on the ground that the potatoes.were,, to : the. fanner's .-.knowledge, "purchased by them for_ re-sale;.. and that tHev had been unable to ;re-sell them at a profit as they would':'.havo.: been, able to . do" if they had been merchantable and fit for human consumption..' ' -': ' v A x ßargain Struck.

In the evidince it appeared that Mr.' S. T. Griffiths,: ris .representative of Messrs. Turhbull at Wanganui, .informed his principals of, an offer of Rendell's : potatoes at 755. a .ton,"and Messrs. Turnbull wired back:—" Will accept-Rendell's offer, subject to.- potatoes being :in .sound condition; writing." They avrotc stipulating " that the potatoes'must' be '.absolutely sound." " The contents of -thev. letter were verbally com- . mumcated'to Rendell, and after Griffiths had j visited- ; the farm / a written . contract was made. ' At the time' -of the visit Griffiths cut a potato" and found it bad, and it : was alleged by; Griffiths _(but denied by Rendell) that Rendell then-said, "If you went through a, couple, of hundred sacks I don't' think -you . would find another." Griffiths said, "I'm satisfied." : . It, was ; mutually agreed that Northern Star was not a good table potato, .and . was worth about £3 a ton less , thanj prime table potatoes.. , ' Trouble Besins. On November 6 Messrs. Turnbull and Co. wired, .to their Wangamii branch:— l"Potatoes filthy, condition. Stop railing unless absolutely dry and sound;". On .the 'same day. they wrote a letter, in which they stated they contracted to sell Messrs. Laery and Co.' 25 tons,' but the first load ".was promptly returned: They are," said this, letter, " without doubt the worst-packed..potatoes we have ever 'seen; filth,' ; dirt,.;. roots, ..and rotten potatoes ,we did not- buy. What -we want are- clean,• sound,- .free:..from, dirt "and roots; . and if Rendell cannot supply, he had better keep them, .as they are only [ fit for pigs'' food; Since writing the above, your telfegram is to hand. We don't care much whether Rendell refuses, to ..forward the orders we sent .him. Perhaps .it would be as well if he did, as unless they are better, than what wo have received, we fear heavy claims will arise, which, of course,: will be his loss." , '.

Potatoes That Always Came Back. i.' 1 "; a -.letter they wrote:-"Your tolcgraih;to li&nd, and •W6 note that you intend send, potatoes, from Wanganui. Wo : sincerely. hope'.that these will be very carefully examined before railing. Messrs. Thompson Bros, have gone back on ■ their contract .ivith us. -We- sold .them' a parcel, but owing to' the disgraceful condition in ■ which, the goods opened up, they were returnod to us. We must insist on thorn being all-picked ;over and. graded before' railing. .Seventy-five shillings' a ton is too much ■ ™ pay -for dirt, leaves, • and other rubbish. Please impress this on Rendell." Rendell's, comment (so: Griffiths said) was that he- could not understand it, unless the in the paddock .'put the stuff ■ in when his back was turned; He/said he wished ho could see ;a : sack -when it -was shot out. There were at that time some sacks of the potatoes at Wanganui 'awaiting dispatch, and one was accordingly: shot out in Rendell s Griffiths described them as absolutely rotten; . the' moisture, ran out of thorn. : . Rendell's evidence oil this point was that .the potatoes were dug on a wet day, and' that Griffiths remarked, " I havfi a-theorj r that'the potatoes had been in, wot pound, and when-they came out'they were' iull of waterj and it oozed out on the ,^loor.,, _ -A. letter 'of Messrs. Turnbull on November 12, informing Griffiths that they were holding .the potatoes on Heiidell's account, • said the .potatoes, were -not ; fit : for. human conBumption. ' Every sack sent * out had been returned: - They had tried the auction rooms, and could only get 2s. 6d. to 4s. per sack, and, though they had tried every possible likely pbco. to: push them off, they always came back." • . - - ; • ■ Seunl Cnwi'i, r.nO the Consequences. ■ On the point /of. condition Rendell's evidence was that-the potatoes were affected by second growth, which made them a quality' lowoi' than. prime.' But soundness referred to condition, not quality." William Reed,i the, manager, of Messrs. turnbull s sales department, who professed ignorance concerning second growth, said he submitted some of, the potatoes to a health officer, who said they were—suffering from second . growth. -They, looked healthy. He took some home, but when cooked thoy were watery/ He tried, to eat some; and succeeded; but he was ill for several days afterwards. The potatoes in warehouse gradually got offensive. Some-were sold at less than the expenses, and others were given* to anybody who would, cart 'them away for pigs. Nearly twelve tons were condemned by Dr Frengley, and; destroyed. y . How the Storekeepers Fared.

_ Thomas M'Gregor, : a storekeeper of Bullb, bought about a ton, and sold them to various customers) who returned them as uneatable..- " . - Nathaniel Nahare, anotherstorekeeper bought two tons,.with similar.results. Frederick Morris, of Hukeiiui, and John Herbert J oil, of. "VVaitara, had similar experiences. Tho potatoes, when raw, were outwardly sound, but waxy/when cut. - Griffiths said .that when/cooked they, were like mashed turnip, and smclled objection- : ably. ■ • Judgment for the Merchants. Alter a review of the evidence, Mr. Justice Cooper held that Messrs. Turn bull were entitled to succeed on the ground that tho potatoes were perished and not "table potatoes," at the. time pf contract. His Honour added that, even if they had not then been perished, they were certainly unmerchantable on 'delivery, with a' 1 dofect not discovered by reasonable examination. The contract being thus held void under section 8 of tho Sale of Goods Act, 1895, the defendants could not succeed on the counterclaim. • • . Judgment, was therefore for Messrs. Turn-bull'on-'tho claim (with costs £41 2s. 6d.), and for Mr. Eondcll oh the counter-claim (costs £24 145.), Court fees and witnesses' expenses to be paid by tho plaintiff. 1 Mr. Cohen was counsel for plaintiff, and Mr. Hutton for defendants.