APPEAL DISMISSED.

Gisborne Times, Volume XLIX, Issue 4816, 13 March 1918, Page 2

APPEAL DISMISSED.

DISPUTE OVER STOCK DEAL. Reserv.ed decision has been given by His Honor .Mr. Justice Chapman on an appeal on fact, from a decision given by Mr. W. A. Barton, S.M., in a civil action, Orr v. JeJFerson. , The appeal was argued on December 12, 1917, Mr. Sainsbury appearing for appellant and Mr. Burnard for the respondent. His Honor’s decision was as under • Appeal on fact and law from a decision of W. A. Barton. Esq.. S.M. The original transaction was between R. E. Burton and the plaintiff, John Orr now respondent. The contract between-them was expressed as follows .—December 27, 1916—This confirms sale of about 100 bead of weaner calves, mixed sexes, at £7 per bead £1 per head to be allowed on four bead weak colored calves, only calves fit to wean. Delivery taken on station last week April. Buyer R. 11. Barton, seller John Orr. It is not disputed that Joffeison takes the place*, of Barton. Apparently it was expected that a Mr. Runcimau. who represents Messrs. Murray, Roberts and Co. at Gisborne, would attend and superintend delivery, but this was not made, an essential term . of the contract and was claimed or acted upon by the parties. When the time for delivery came, a drover named Deacon appeared and stated that he had authority to take delivery. As to this appellant says that he bought from one Budd and that ho never knew the respondent Orr. The agreement with Budd, which is no doubt the sale note quoted, was, be says, that “the cattle were to be delivered in the, first week in May at plaintiff’s station.” Thc-n “the second week of May I sent my man Deacon up to plaintiff’s station to take- delivery. My instruction to Deacon was not to take anything under 5} to 6 months nor any bad color.” The stock lsad_ to be driven 70 miles to the appellant’s station, and this took six days, which would tend to cause deterioration. On arrival the stock was rejected by the appellant on the ground that the animals did not answer the. description given in the sale note. It is now argued that many of them were not weaners. When Deacon took delivery he represented that he was acting for the appellant and stared that his instructions were not to take anything under four months. A good deal of evidence has been given. Sheepfarmcrs sav that the ages of such stock are judged by their general appearance. It is now argued that Deacon only liad authority to drive the beasts to the appellant’s place, and that that was the proper place.for inspection, and further that • some of these animals were not weaners but calves not fit to he weaned, and consequently a different tiling from that contracted for. It seems to me. however, that Deacon was sent to take delivery and with implied authority to determine the ages and pass, the stock as “weaner calves.” It is true that he had not seen the contract, but he evidently knew that he had to determine whether the stock offered were weaner calves. As to some of these it may have been a very debatable question whether they answered the description, and Deacon said they were not fit to take away. It is. however, a question of degree rather than or kind. Mr. Runcimau. who had frequently seen them, says they were a good lot and well grown, though >:e may not have had an exact knowledge of all that were offered. It seems to me unreasonable to suppose that in a bargain of this sort where some of the goods were on the border line and all the supposed defects were visible, the buyer retained a right to reject a week after delivery had been taken and the animals had travelled 70 miles. All the circumstances point to Deacon having had a selective authority and to have exercised it. That he exercised it in a manner that was not satisfactory to the Oliver docs not affect the question. Deacon objected to some of the calves, but ultimately took them after it was found that Mr. Runcimmi was not coming out. His version of his authority coincides with that of the appellant. He says: “I was instructed by the defendant to co to plaintiff’s station and get a moh of weaners and bring them to Wairoa. On arrival there plaintiff asked me if I had come to get the cattle, and I said ‘Yes.’ ” He had at least authority to represent this to be fact and to do what is therein implied. “The time and place of delivery is prima facie the place for flic examination of the goods by the buyer: hut the circumstances of the case may indicate some other place and time especially where the goods contain a latent defect not- discoverable bv ordinary diligence at the time of delivery.”—24 Halsbury. Laws of England 229. paragraph 398. Here I think-that Deacon, who is an expert drover, was empowered to rein- those which were not within the e tract, and that his acceptance .of t' • beasts passed the property to the buyer. Appeal dismissed with costs £8 Bs.