PURCHASE OF EWES.

Hawera Star, Volume XLVIII, 19 March 1925, Page 8

PURCHASE OF EWES.

LNii'Kjn..ra.>i*iNic; oase to FARMEfRS

AiLTiEGED BREiAGH OF WARRANTY

V case of the greatest interest and considerable importance to lamiera came betmo the Magistrate at the fount yesterday, when a sheep lannei, T. F. "Wilson, of Waitotara, sought to recover damages for an alleged breach of warranty from the Farmers Coon., in regard to a line o fitty ewes which plaintiff purchased, on. the understanding that they were gtuvranteed “f.f.m. ewes in lamb to Southdown rants.” Mr. H. L. Spratt appeared for plaintiff and Mr. Spratt for defendant company. . in opening the case counsel for plaintiff said that his client averred that, as the result of an advertisement in the Star, he had inquired for the line of ewes, and that the company s agent. Mr F Nixon, showed him .the ewes in a. paddock and. repeating the guarantee as to condition, he agreed to purchase fifty. He wanted them fo" the ea.rlv fat lamb trade, and though the price asked. 20s, was lugh he agreed to give it. the warranty influencing, him in his decision. in* name, of the vendor wax net disci need pnd it- “WctiS on.lv montlis a/ft-Gr ii€ Kttgw the vendor was Thomas Ash, a droveand an employee of t-lie Co-op. -1“* ewes were to lie- delivered to a , farm lcp.cod. hv “Richter at Mokoia. When lambing' came on there were thirty four born, and more than half were not Southdown cross at all, and those that were of that breed were late, and, in consequence’ he missed the early fat la mb’ season, which was in August 01 September. The com»pact bodies hi the Rmithdown fitted them admirably for the English trade. Plaintiff had made several abortive: attempts at settlement, and failing in these had brought the action. ' Plaintiff, in replv to his counsel, said that with Mr. R'ichter. who leased a. farm from him at Mokoia, he saw the ewes which Nixon, then, agent foi defendants, guaranteed, as in lamb tc block-faced - rams'. They had to go tr an. accommodation paddock on the 'Tin utuni Road, which he assumed belonged to defendants. Richter ‘‘mouthed’’" about fifteen, and as they showed well, he agreed to take them if Nixoi would deliver to Mokoia. The prie< eras high, hut he was influenced In the fact that they were near home and appeared a good line. Nixon agreed to run, off fifty of the tops and consign with some more .stock going down. He thought at the'time Nikon owned oi was interested in> the ewes. They were delivered, and in November he saw them , and found they had had a bat' ■ percentage of iambs and were not early •as represented'.. He found they were rnontlv Rom,lie v cross, and that, thev were still lambing. What were black* • faced wee late lambs. He was so annoved he went to see Nixon and als** saw Fvsdii. Thev agreed to take his word in the matter. He understood Ash blamed a former owner on whose word he relied. I He averred that Nixon said he had a claim on the company*. He saw* no more of the lambuntil the time for killing arrived, and the defendant’s agent said lie did not want to sen them. They were sold at the end of December for 21s each 01 an average. He spoke to Nixon, am 1 to Fyson in Hawera and claimed about C3O. One hundred per cent: of lambs .was a, low laverage for ewes of that type. He wanted to square 411 arfount, bust Fyson told him to let it go until a settlement was effected, and he said he would not press the claim until al’l-.liad conferred on the question. H> insisted for a time, and the matter was allowed to drift. In September he saw the Co-op: people, and as no settlement was made he put the matte” in liis lawyer’s hands. The Co-op. said they acted only as agents for vendors a.nd could entertain no claim. He had every reason for wanting b''aek-Pared lambs for the early fat lamb trade. Tn 1923 the percent- 1 age of lambing in that breed was about 120. >■

To Mr. F. C. Spraht plaintiff said lie had secured the ewes to get- 1 a,mbs by August 1. Practical men could not always ,tell if ewes were in lamb by June. Four or five weeks before lambing signs should be evident. lie bad bought on a. run out, and considered he had got the biggest sheep, but not the pick. He had no complaint on that score. Nixon was to 'draft them so as to help him and was to give him the tops and he relied on this. He thought Nixon might be the vendor, but he knew he was an agent for the Co-op. He did not know the Co-op. did ‘not own sheep or sell nn their own account. He did not remember Nixon saying the owner had too many, and that he could, have a “run, out.” Riciiter was leasing the farm from him and has now bought it. He was not a.sharemilker for him. He had agreed to let Richter have the profits on the ewes, but there was no mention of losses. He was trying to help Richter, and the profits would >ome to Richter in reduction of advances made, while the latter was to take the sheep ultimately if he could. Richter had sold some as, culls by liis instructions and replaced these by others. A loss was made by Richter because the llamlbs did not come in early as, expected. If the sheep had been as represented, Richter would have made more profit. He had not often been on the farm, and it was just abotit the end of lambing time when he saw the ewes. When he bought be knew the ewes could not be farmed there because the' paddock was too small. If the ewes had returned 100 per cent, he would have been, quite satisfied, although, the average for the breed for the year was over 120 per cent. He considered it- always better to go to a man’s place than to buy in the yards. He never bought* except with ,a guarantee. He made a point of seeing vendors before the lambs were drafted and told Nixon to come and see them, but he said they would take his word. He understood the balance of the hundred advertised had lambed well, and he did not know why he had got .some empty ewes, in regard' to liability, at first he did not hold the Co-op. or Nixon as tiheir agent, and ho raised the question, as scon aoi he saw the llamibsi in, November. In May 1924 he put on record hi si intention to hold them liable, and had given, particulars of claim.. He had, however, not recorded the question of early lambs, for lie had no reason, to doubt the word of the agent. A farmer’could not get the weight in lambs unless they were early. He gave some particulars of the different prices for sheep at that time. To Mr. H. L. Sr>ratt he said lie would have been satisfied had lie received 100 per cent, lambs docked and was claiming fur breach of wan'iirhv To the Magistrate, witness said he. wanted a warranty that the ewes were in lamb to ; S.T). rains, or that the 1 ' would produce, say, 100 per cent, of lambs. R,. 0. Richter deposed that he had the farm* at Mokoia and wanted some sheep on account of a, patch, ef ragwort in one paddock. Mr. "Wilson said he would: buy some breeding ewer to run on the place. He confirmed

ciio evidence of All. W iison as to their | goring to. tee the ewes- and getting them sent down by Nixon along with .some l others, alter. Nixon ivud guaranteed they were as .stated in the sale advertisement. .tie said that when lambing time came there was one crop of white-faced lambs, and after a spell the blank-faced came. There was good feed on bis farm and sheep always did better on. cow country. To Mr. F .C. Spratt- he said when he .saw the condition, of the months of the ewes on his farm, he began to th,ink they were not the sheep he had seen. 'lire sheep that ca-nie. from Wlaitotara were running round the house. He had handled about fifteen at Turnturu paddoak. Ho was* round Hi© sheep every clay while lambing was going and there were sheep-proof fences.! He' could not understand how the mouths could go so soon. He would have to pay eventually for the sheep. If ©very ewe proved not in lamb the loss would fall on the purchaser. He put a bottle brand on them when delivered. .. To Mr. H. U. Spratt he said a bottle brand meant the bottom of a bottle dipped in paint. The sheep looked those he had seen in the paddock until he looked at their mouths. This brand, he told Mr. F. O. Spratt, would show at time of docking. F. C' Fantham, fat stock buyer for the Gear Company, gave evidence as co purchasing the lambs at the end of December, 1923, taking 33 at 245, a mixed lot of Southdown and. Romneys. The former were late and small, and if they had been early and well-grown they would have fetched 28s or 295. He said the quality could not be got in Romneys,, which would mostly be graded seconds. To the S.M.: He did not want Romneys, but took as many as he could. Jf the ‘ sheep sent to Alokoia from Waitotara some apparently were in lamb

To' Mr. F. C. Spratt: Any sheep runing on cow country would do exceptionally well. Of the lambs shown .o him 33 got away as fats, and there was a wonderful average. Plaintiff, under further examination, said he had sent 15 or 16 sheep from Waitotara, and there would be' 6 or 8 lambs from these. To Mr. Spratt he said’ Richter told iim he got a shock when he saw the 'woken mouths, and considered that possibly there had been confusion in lie delivery of the draft. In reply to Air.. H. L. Spratt he said Richter had mouthed only 15, and they might not have got what they expected. Mr. Richter, recalled, said that there were eight lambs left after the draft taken by Air. Fantham. Some of the iVaitotara sheep had proved to be in nmb, and some of these went in the ■draft. ' ■ \

Thomas Alexander, sheep farmer at Alaxwelltown, gave evidence of the general acceptation of the term “warranty in lamb.” It was a common custom,' and he, if buying, would rely n it or get redress in case of failure, t would imply that good ’ rams had jeen used. The use of the word Southlawn would mean a purebred ram. A m.ver should get over KX) per cent, lambs from ewes sold under such a warranty. No ram tried would give such a large percentage of lambs. The colour of the cross with any other ewe .vas brown or grey face and legs. It. was not usual to use a crossbred rani. During lambing time it was usual to keep the ewes and lambs a s near to the house as possible and go round them often. There was a great difference lie tween Southdown arid Romney, both in woo] and in body, the former having short wool and nuggetty body. To Mr. F. C. Spratt he said he had not seen the sheep, but those who were expert could generally tell between ewes in lamb and empty ewes. In regard to the terms of warranty, he said a great deal would depend for him on who made the warranty. it was generally understood that at least 100 per cent, lambs should be secured. To the’ Magistrate : The proper number of rams could have been put with the ewes, but they might be starved, and this- would not be good If only 80 per cent, were secured a man would be justified in saying that he terms of the' warranty were not adhered to. , This closed the case for the plaintiff. Before going on with evidence _ for the defence, Mr. F. C. Spratt raised the question of a nonsuit, which he considered was suggested by the evidence of Wilson and Richter. The plaintiff had show'll, he contended, that there was no damage to him. He alleged a bi’eaeh of contract, and the clear foundation of an action for breach is damage, and this must be shown n the arrangement between these twr Wilson assumed direct liability a nr caid for the ewes and sold to Richter and this was the only position that in law could be assumed. It was

mutter of iniro. cold law, ror the evidence showed that W ilson bougnt the sheep and was to finance Richter, the proceeds of the ewes to "be credited to his rent. Richter sold some of the sheep and bought others to replace them. He considered there was no claim bv Wilson for any breach of warranty. If he had, he might say he bought under warantv and passed on to Richter. Mr. H. L. So ratt said it was an I unexpected turn in the ease. \\ ilson j said the sheep were his, and ownership was not aifected by any rule referring to bankruptcy. It was not , a question of ownership that would de- j cide, because Wilson still owned them. He did iiot see how a nonsuit could ] he raised in the ease. Mr. I l ’. C. Spratt said that Richter was under liability to Wilson to pay for the sheep and! had not to account for any on the farm. If there was a contract of sale, the loss did not fall on plaintiff. Mr. H. L. Spratt quoted sec. 4, subsec. 2 of the Sale of Goods Act, dealing with Remedies of a "buyer and breach of warranty. This read as follows: “‘The fact that a buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage.” " “The measure of damages for breach of warranty is the estimated loss directly and naturally resulting in the ordinary course of I events from the breach of warranty.” His Worship said the question to be decided was whether damage had been suffered. He had also to decide whether it was proved that Wilson sold to Richter on such terms that Richter had no claim. If plaintiff suffered no damage it could not go through, but the question must stand or fall on its merits.

NONSUIT POINT

DECISION OF MAGISTRATE

On resuming this morning His Worship traversed the evidence of Wilson and Richter, and then gave his decision. on the point raised by defending counsel. He held that Wilson hlad sold the sheep to Richter immediately after .buying them from the firm and at the saine price, and, further, that Richter had no claim against Wilson for anything arising out of the alleged breach of warranty, and Wilson therefore had suffered no loss. He (added that if the case proceeds and a. breach of warranty is established', then the plaintiff was entitled to nominal damages which eou.ld he used as a peg upon which to hang the costs of the case. The case is adjourned to next co-urt day by request.