A GREYMOUTH CASE.

Grey River Argus, Volume XIV, Issue 1776, 15 April 1874, Page 2

A GREYMOUTH CASE.

In. the Supreme Court, Dunedin, on the Ist April, in banco, the following case was heard before Mr Justice Chapman": — BROCKLEY V. BTTRT AND ANOTHER. Appeal- from the Resident Magistrate's Court, Dunedin, under section 100 of the Resident Magistrate's Act, 1867. .. , The appellant, defendant below, had been sued by the respondents. for money payable to the plaintiffs for goods bargained and sold, goods sold and delivered, &c, the particulars of demand amounting to L 37 6s lid. The case was heard before Mr I. N. Watt on the 21st 'November 'last, and on the 3rd December judgment was delivered for the plaintiffs below. Against this judgment the defendant appealed. The parties being unable to agree,; the -present case was stated and settled by the Magistrate. The facts, as gathered from the case, .were shortly as follows : — Ihe appellant is a tinsmith, residing in Greymouth, and the respondents are plumbers in 'Duriedin. About the first

week in July last a person, who appeared to be the agent of the respondents, called on the appellant to negotiate a purchase of gal vanised iron. The respondents, on the 9th July, telegraphed to the appellant saying that they were able to supply a certain quantity of galvanised iron of a specified gauge, and " slightlyjJamajged," rat'li"'B^clfied"'price.~;;::Tbe-lip^ttani:'lre-plied by- telegram, offering JLllesß.^ 'The contract,' as altered by the appellant, was .-> ''VMu>Uy r acceptod/-by-4he-reß{Mndenj^;for the iron was shortly, af ierjyaras consigned by them to the' appellattjk . . Qn.arriyal at Greymouth, the iron was inspected and gauged by the appellant, and was immediately rejected by him as not being according to the gauge alleged, and as being. a great deal more than " slightly damaged," as stated in the telegram from the respondents. The appellant subsequently, on the 2nd August, wrote to the respondents rejecting the iron. In reply, the latter agreed to receive back the iron, provided the ; appellant paid the expenses consequent on the return. The appellant having refused to do this or to pay for the iron^. the respondents brough their action in the R.M. Court, Dunedin. A conflict of evidence took place, and the Magistrate found that the iron had hot been properly gauged at Greymouth, but found also tbat the r iron had been more than " slightly damaged.'' For this extra damage the Magistrate deducted at the rate of five per cent. :per ton, and gave judgment for the .re s idue qf , ( the claim. This decision, as abpye-mentioned, was given on the 3rd December. On the sth, the appellant, having previously given notice of appeal, entered in .the proper bond, as required by the statute, to the satisfaction of the Resident Magistrate at Greymouth, and the same day, through the Resident Magistrate's Court at Greymouth, transmitted the bond 'to 'the RIM. Court, Dunedin. , On the lo^h, the bond was lodged with the Clerk of the Court here, and a memorandum of his satisfaction written on the margin thereof by the Magistrate. The bond was hot stamped, and never has been. The questions for the opinion of the Court were : : — • ' 1. Whether: the appellant had complied with the requisitions of sec. 100 of " The R.M. Act, 1867 ?" .". . '.; 2. Whether, the decision of the Magistrate was right in point of law £„...,..>" Mir F. R. Chapman appeared fdr the appellant; Mr W; DV Stewart for tne respondents; . I . : j : •£ Chapman, J., in delivering judgment for the appellant, said that, so far ; .as .the bond was concerned^ the > Statute j had been, complied, with, .the bond having been given within the' three days allowed by the " Act. : ? He-was also of opirioh that a stamp was not necessary, the intention of -the Legislature being thai legal documents of this nature should not be^ubject to stamp duty. The bond clearly r came within the meaning of the Tworcl •' instrument" used in the Act. As to the case itself^the terms of the contract, which were to be collected from the telegrams,' were to the effect that the iron shoujd be-not more than " slightly damaged ;" ■ whereas, 1 from the evidence before the Magistrate, it* appeared that the iron was more than "slightly damaged." In other words, the appellant had not got that which he had bargained f or ; but on the contrary iron which, according ; to the Magistrate's decision, was damaged to the extent of 5 per cent, on the contract price. On these fact 3 the refusal, of the appellant to accept the iron waV justifiable. All the cases showed thai, where there was an agreement for a specific chattel, if it did not come up to the termß of the agreement, the purchaser was justified in refusing to accept it. Answer to firsl; question, Yes; to the second,. Nb ; and appeal thefefore'was'allpwied'with costs. Appeal allowed wfth costs. , 7/ ,