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THE COURTS.-TO-DAY.

SUPREME COURT-CIVIL SITTINGS,

{Before Mr Justice Williams and a Common Jury of Four.)

Haktv and Co. v. Mart;.— Claim, L74G 17s 4d, damages for breath of agreement. Mr Km, ie appeared for plaintifls; Mr Stanford for defendant. Couusi-1 lor plaintiffs stated that in September 1 -.st limy and the defendant were negotiati'i T lor the purchase of the seasons output ot clue so at tiic ]at'."t s factory at Fort! i, and in October tiie latter agreed v. sell to plaintiffs the output —estimaU dat forty feus— at 4;1 per lb. f.o.h. at Fortrose. The cheese was to bo “ prime ’uetory uluses •>.,’* and Harty was to pay c.m:. ou delivery. Pliinlills were always willing to carry out their part of tho contract, but defendant had failed to deliver the cheese, and declined to do so. The market price for prime factory cheese was Gd per lb, and plaintiffs therefore claimed damages at the difference —2d per lb between the contract and the soMing prices, and this ou forty tons of ehccce amounted to L 746 17s -Id. Tho statement of defence, said counsel, set forth that defendant did not deny having made the contract, but claimed that the full terms and conditions proposed to be agreed on were not set out in the claim.

His Honor remarked that he was puzzled to make out what the statement of defence did men.

Mr Keltic said that was so, and wont on to say ; hat after the contract was made defendant showed Harty two chec ;C3 as samuh-a > f his neinufacauv, but there not being of prime factory quality, Marly, alter submitting it to experts, declined to receive it This cheese, which was made for plain lill's’ approval, proved to he made of skim milk, and was thereto-e not fit fo: the market. On December J!) defendant wrote to phiiutifls stat-ng thuvhc did not intend making any more cheete, and asking what compensation they woubl require as he did not wish them to lore. Fiaintiffa replied that they wou'd claim the amount set torth in tiie statement of claim, and that as defendant was not prepared to carry out the contract they would have to take steps to recover that amount. As a matter of fact defendant did make more cheese, hut subsequently sold his factory and cleared out to the North Island, The only question for the jury to consider was the measure of damages. Mr Stanford submitted that the measure of damages could not be arrived at until the end of the season, as no dates for delivery were fixed, and there need he no delivery till the end of the season. Mr Kettle said that the contract was a forward one.

His Honor asked what was the custom—it might lie making d; livery from lime to time during the season, or it might be making delivery at the end of the season. .Mr Kettle said that he would produce evidence as to what the custom was under such contracts as the present one. Mr Stanford submitted that parole evidence as to custom could not be given. His Honor, after argument, decided to disallow the evidence in <|uestio;i. Thomas Kew Harty gave evidence in support of counsel’s opening address. In answer to Mr Stanford, witness said that he had never bought Heidey factory cheese to his knowledge. Defendant used to he at the Henley factory before he went to Fort rose, and he told witness that he would supply him with as good cheese as he had made there, and which used to fetch the top price in the market. Witness h..d no agent at Fort rose to pay defendant for the cheese as it might ho delivered, nor hud he made arrangements for paying defendant there—the matter never reached that point.

Andrew Macfarlanc, grocer and dai.y farmer, stated that tome months ago Hai iy showed !ii ■ ■ i two cheeses and asked him I ) tasle the - n. It was very had c-heeec—m fact, it c aild hardly he called cheese. It was cert .only not “prime ” cheese. George Hill Mackis,..ck, saV.mau to HIT and Co., gave similar evidence, rnd added that the highest pi ice of prime facto,y cheese during this season was u:pl per lb and the lowest .M l. John Stevenson, macag'ng director of the Heu'cy Factory Company, gave similar evidence. In cross-examination witness sa’d that his company sold their season’s output for per lb, but that wan not prime factoiy cheese, inasmuch as by agreement with the purchasers (J. R Scott and Co ) the compmy were allowed to lake 25 per cent, of the cream before the cheese was m„de. James Robertson Scott, commission agent, said that in the course of his business ho bought and sold cheese. The cheese shown hiuTby Harty was very bad. During this season ho had sola cheese from three different factories at prices ranging from iHd to fid per lb. To Mr Stanford : Witness bought the Henley cheese this season at 4ld. That was prime factory cheese. To Uis Honor: The Henley cheese was worth quite as much as any of the otlrr cheese that he sold. Cheese that bad been contracted for in this way was supposed to be delivered in from eight to ten weeks after manufacture.

James Neill Mills, salesman to Mackerras and llazlett, said that the cheese shown him wasveiyhad, and was actually unsaleable. The market price for prime factory cheese ranged from uid to Cd. Mr Stanford" submitted that plaintiff must be nonsuited on the ground that there was no bargain or sale, but simply an executoiy contract. The sale that was made was of the whole season’s output, and counsel submitted that that must imply delivery at the end of the season ; therefore plaintiff had brought his action all too soon. It had been shown that the season ended in May, and that cheese was kept in the factories for eightor ten weeks before delivery. Mightnot defendant be prepared to deliver the 40 tons in July ? Then again, theduty was incumbent on plaintiffs as buyers, to place themselves in a position to pay defendant in terms of the contract, but they had taken no steps to do so.

His Honor: Taking your own contention, there was no occasion for them to do bo. Defendant’s letter of December shows distinctly that defendant did not intend lo carry out the contract. Mr Stanford submitted that defendant never distinctly and absolutely refused to fulfil tho contract —the letter simply amounted to this: that defendant desired to get out of the contract, and wanted to know the price of doing so. It was more in the light of a threat than anything eke. He would submit that plaintiffs could not possibly expect to succeed in bringing an action for damages for breach of agreement. Mr Kettle held that there_ could not be a clearer and more distinct intimation that defendant did not intend to carry out the contract than was contained in his letter. iWin, H he had intended carrying it nut, why did he not say something about it when served with the writ? His Honor decided against the nonsuit points, remarking that Mart’s letter of the 19th of December, coupled with his previous conduct, amounted to an intimation that he refused to perform the contract. It was treated s such, this construc< ion being placed upon it by Harty and Co., a,id there was no protest by Mart against the- construction. On the assumption that Mr Stanford’s construction of the contract was correct, that there v is no need on Marr’s part to deliver till the end of the season, Mis Honor remarked that of course if before the time of the performance of the contract there was an absolute refusal on the part of one of the parties to carry it out, the other party could sue. , Defendant stated that the cheese he made and forwarded for plaintiffs’ approval would be called in the market “ prime ” cheese, although it was made of skim milk. It was in good condition when he sent it, outfit might have got damaged on its way up in tho coach. Witness had lately sold his factory and the cheese that he had in^ stock. There was about twenty-two tons of it, and it averaged 4d per lb. Mr Stanford said that he bad no witnesses to call, aad proceeded to address the jury.

11 is Honor said there was a point in connection with the question of the measure of damages that he would liketohave clearedup. What would be tho expenses, to plaintiffs, of the carriage of the cheese from Fortrose to their store in Dunedin ?

T. K. Harty, recalled, said that he made arrangements with Keith Ramsay to bring the cheese to Dunedin in tho s.s. Kakanui for 15s per ton, and the whole expenses; delivered at his store, would have been 19s Gd per ton. Mr Kettle addressed the jury very briefly, submitting that a clear breach of contract had been committed. His Honor then summed up, and the jury, alter a retirement of half-au-hour’s duration, returned a verdict for plaintiffs for LS3G Us 4d (with costs), being at the rate of !Jd per lb on thirty-live tons, less LI per ton expenses of carriage, etc. RESIDENT MAGISTRATE’S COURT. (Before Messrs R- Wilson and F. G. Fryde, Justices.) Dr Ter.van v. Frank Stent,—Claim, LI 18s, on a judgment summons. Mr Callaway for plaintiff.—Order made for payment of the debt in seven days, in default three days’ impr smment. Wilkinson and Fettitt v. Lan Simson Simson.— Claim, L2 19s Cd, for goods supplied. Mr Thornton for plaintifls.—Judgment by default. Archibald Campbell v, George Foreman. —Claim, LI 3s 9d, for goods supplied. Judgment by default. CITY FOLICE COURT. (Before Messrs J. Logan and J, M. Ritchie, J I’.s.) Drunkenness One first offender was fined ss, in default twenty-four hoars’ imprisonment; while William Ferguson , with one pre-vious conviction, was fined ss, in default twenty-four hours’ imprisonment.

Vacuascy. —Joseph Grebe was charged wffh having iusnilieitnt means of lawful support.—Accused pleaded guilty, and said he had been to the labor office and tried to got work. Sergeant-major Bevin said accused had lately arrived from the country, and was in the habit of prowling about the back streets and round the Exhibition buildin,.,—The Bench adjourned tho case until Friday, accused to leave the town in the meantime. If he did not do so he would be dealt with by the Justices on tho present charge. Disokherly Behaviour Joseph Kmnnl I/ was charged with behaving, on the 3rd inst., in a manner calculated to provoke a breach of the peace. There was a further charge against him of using obscene language.—Mr A. C. Hanlon appeared for accused, and submitted that the information should have been laid as one charge.— Fanny Bain said Hut on the date in question she was speaking to two friends, when accused came up, abused her, and struck her on the face. She immediately asked him his name, and after learning it went and laid the information. —Blanche Wilkins corroborated the last witness, and denied, in answer to a question by Mr Hanlon, that her companion struck accused first.— George Baker, Sergeant Mucdonncll, and accused also give evidence, and after Mr Hanlon had addressed tho Bench accused was fined L 3, in default one month’s imprisonment, on the first charge, while on the second charge ho was sentenced to six weeks’ imprisonment. Foul Chimneys. —James Nelson and Jessie Crawford were fined Is, without costs

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Permanent link to this item

https://paperspast.natlib.govt.nz/newspapers/ESD18890611.2.24

Bibliographic details

THE COURTS.-TO-DAY., Evening Star, Issue 7930, 11 June 1889

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1,924

THE COURTS.-TO-DAY. Evening Star, Issue 7930, 11 June 1889

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