THE COURTS—TO-DAY.

Evening Star, Issue 9965, 27 March 1896, Page 2

THE COURTS—TO-DAY.

SUPREME COURT-IN BANCO.

(Before His Honor Mr Justice Williams.) Fleming and Gilkisok v. Gbigg.— Motion for a new trial. This case was tried before His Honor and a jury of twelve on the 18th and 19th December, the claim being for £4,000 for alleged breach of agreement to supply the plaintiff firm with 80,000 bushels of wheat at 2* 6d per bushel. The jury gave a verdict for damages. At the time of the trial it wat agreed between the parties that only the issue of damages was to be left to the jury, other questions to be left to the judge. The plaintiffs, flour-millers at Invercargill (represented by Messrs Sim and Woodhouse), last week moved for a new trial; while the defendant, a Longbeach farmer (through Mr Hcsking and Mr Purnell, of Ash burton), moved that judgment be entered for the defendant. His Honor this morning delivered judgment, the conclusion of which was to the following effect:—" Apart from the question of acceptance, the telegrams fail to show the existence of a written offer made by the defendant to the plaintiffs or to an agent on their behalf. The offer was asked for by William Saunders, not as an agent for Fleming and Gilkison, but as agent for an intending seller, and was forwarded to him in that capacity. There is nothing to show that at that time he was acting on behalf of Fleming and Gilkison, or that he was in any other position than that of an agent or sab-agent, hoping to effect a sale, and probably to share the commission on a sale with his brother. It may be that William Saunders would have had authority, by virtue of the telegrams, to make a written offer Ito Fleming and Gilkison, but he did not do eo. In order to show that there was a written offer to Fleming and Gilkison, it must appear either that the offer was addressed to themselves or was addressed to an agent acting, or purporting to act, on their behalf at that time. Unless this can be made to appear there is no written offer to the plaintiffs, and such an offer is necessary to establish the plaintiff's case. What the plaintiffs contend is that a contract is created by these telegrams, and that the telegrams signed by Edward Saunders were addressed to William Saunders as agent for the plaintiffs, and that all those signed by William Saunders were signed by him as such agent. This the plaintiffs have failed to prove. I think, therefore, that on the above grounds the plaintiffs have failed to establish a written contract for the sale of the wheat, and it is not open to the plain tiffs to set up any other than a written contract. Apart from the above considerations, other plausible arguments were adduced on behalf of the defendant to show that no bind Jr. g contract existed. These, however, it is unnecessary at present to consider. The defendant is therefore entitled to judgment." Costs were granted as per scale, disbursements and witnesses' expenses to be fixed by the Registrar ; second counsel and second day; twenty guineas for hearing of motion*.