APPEAL LOST

Evening Post, Volume CIV, Issue 4, 5 July 1922, Page 6

APPEAL LOST

WINTER MILK SUPPLIES

CITY COUNCIL AND VENDORS

" UNBUSINESSLIKE METHODS."

Oral ju&gment was given by the Court of Appeal—the Chief Justice, Sir Robert Stout, and their Honours Mr. Justice Hosking, Mr. Justice Herdman, and Mr. Justice Salmond—to-day aa to the appeal made by the Wellington City Council'against the decision of. Mr. Justice ' Reed in awarding the Wellington Milk Vendors' Association (No. 3 Company) £880 damages for .failure on the Corporation's part to supply the full1 quantities of milk and cream required sby the association for distribution under j the block system agreement during the ■winter months of 1920. Since the association was bound to obtain all its supplies from the Corporation, and since it ■was short-supplied, the vendors claimed tbatlprofits were lost on such milk and cream as would have been distributed had the supplies been adequate.* The Court, said the Chief Justice, did not /consider it necessary to call upon the -respondent company to answer ' the arguments put forward on l>ehalf of the council. The agreement drawn up contained a which, would relieve the. Corporation of liability under the agree- . menf in case of disease, inevitable accident^; drought, or any .other condition aiialang ttie. fulfilment of the contract impossible. There were, .his Honour "foeld^ no " other conditions" such as "would relieve the Corporation of its responsibility. The only defence wae that the Corporation could not get the farmers • or the dairy companies to give sufficient supplies of winter milk. However, the Feathei-ston Company did offer supplies ."at Is 6d, but. the council refused to gi,ye more, than Is sd; the milk, there-1 fore,-' could have been had had a price beer£paid. The council, said lii's Honour, was """also to blame for not having made ■ arrangements sufficiently far ahead for a ■winter supply. The agreement was drawn up in June, 1919, and the shortage occurred a year later, but the council could have made contracts, written and binding, well ahead. It was not sufficient ior the Corporation to send out circulars to fanners, for contracts should have been'-'made by September, 1919, at least, whereas as" late as January, 1920, it was still 'bothering r about with telegrams and letters. The business-like method would ■ t have:**, been to canvass farmers and other suppliers and to have had firm contracts. Hia Honour considered that the appeal .."should be dismissed, and that the application for a reduction of the damages" awarded should not be granted. SUPPORTING JUDGMENTS. His Honour Mr. Justice Hosking also ■ lield^that the unwillingness of the Corporation to pay the, price asked wri« not sufficient to relieve it of liability under the 'agreement.'. The council's difficulty liad Jarisen from the fact that it had gone; about making arrangements in an sinbusinesslike manner. Mi". Justice Herdman concurred with the judgments ..already! given, and addedthatHhere. ijas-evidence which, justified, 'the opinion "that had the . Corporation1 takeii the" proper steps there would have lbeen;;no winter shortage. *■ ■• „„: Mr; Justice Salmond agreed' that sufli"cientT,would have been available had the jproper steps been taken to secure it, and said' that the plea of the council that it was necessary to Tation what supplies ■did come to hand among the vendors on flll blocks having concurrent agreements ■with the council, was a plea bvA in .law.. iHowever, in law, if a man had one horse and.by mistake agreed to sell it to two men- he must give the horse to one and 'pxy. damages to the other,, for anr exipression of "rejjret could not be held to satisfy a disappointed purchaser. The action of the Corporation in" rationing v fmilk' and thus short supplying this com.pany, though justified as a matter of {business, was bad in lav; and did not excuse the, Corporation in its failure to supply the company with all the milk «nd, cream it required. During the hearing of argument •Messrs. A. Gray, "X.0., H. BudtJle and Jj. C; II em err appeared for the City Council, and Messrs. M. Myers and 0. * C. Mazengarb for the respondent association.