IMPORTANT JUDGMENT.

Hawera & Normanby Star, Volume XXXXI, Issue 70455, 4 October 1900, Page 4

IMPORTANT JUDGMENT.

'STEUART AND CORRIGAN V. MURPHY. At the S.M. Court on Wednesday Written judgment was delivered in the above case by Mr Eyre Kenny as follows : — • This case was tried at Manaia on the I 6th ■ September, 1900. Mr S. 13. Corrigan, one of the plaintiffs, appeared ia person, Mr Caplen conducted the case for the defendant. By consent the case was adjourned to the 19th September, to Hawera, for the argument j of the law points involved. On that day the case was argued, Mr Barton for the plaintiffs, and Mr Caplen for the defendant. The court finds the following facts to have been proved : — 1. The bullock in question was sold by plaintiff by public auction for Mr Schinkel in one lot with 25 others on or about the 14th June, 1898. 2. The conditions of sale (exhibit A) 1 were read by the auctioneer before the sale. They contained the following pro- ■ vision : " Each lot shall be taken with j all faults and errors of description.' 1 { 3. The bullock was bought by the . defendant with, the, 25 othetß. 4. The defendant had an opportunity of inspecting the bullocks in the pen * before and during the sale. Ho had no other opportunity of inspection. The , defendant did inspect the bullock at the time of such inspection. 5. The bullocks were not crowded in 1 the pen. 6. The defendant bought on his own * judgment. 7. After delivery to the defendant, the bullock was found to be suffering from . a malignant disease, causing it io be ) unfit for food ; and it was killed by i order of the Inspector of Stock. 8. The bullock was so diseased on the day of the sale, but there is no evidence f that either Mr Schinkel or the plaintiffs were aware of the beast's ccn9 dition. t 9. It was proved at the trial by J evidence which was uncontradicted that it is the universal custom of i auctioneers in this part of the colony to charge interest on overdue accounts. l# At tho argument, tho defence that f there was an implied warranty that the beast in question was not diseased was :, abandoned ; and the only point relied on by Mr Caplen was that there had been delivery, but no acceptance, tho

vendor having given the plaintiff notice of repudiation of the purchase the day after the sale, on the ground that the animal was diseased. Mr Caplen, therefore, relies wholly on nonacceptance, and non-acceptance, he submitted, was justified by the diseased condition of the bullock, whioh he said amounted to a failure of consideration. In the first place, it is really' immaterial to the plaintiffs right to recover the amount sued for whether there was acceptance or not. Delivery has been proved of the lot of 26 bullocks, including the one in question ; there was no warranty, express or implied ; it was an express condition of the sale that the bullocks should be taken " with all faults , and errors of description." Areasonable opportunity under the circumstances was afforded to this buyer and others of inspecting the bullocks then in a pen at the saleyards, in which they were loosely packed, and the defendant bought entirely on his own judgment. In Ward v Hobbs (LJ. 48, page 206), the typhoid pigs case, Lord Cairns said: " It was said that that which was sold was not really a lot of pigs, but a mass of disease, of typhoid fever. So that all I can ay is that a pig having typhoid fever appears to me not to lose its identity any more than a man having typhoid fever ceases to be a man, and therefore the thing sold was that which it was professed to sell." Similarly, a bullock suffering from axio microsis still remains a bullock. This defendant bargained for- a bullock, and he got a bullock. "The Sale of Goods Act, 1895," merely certifies the common law on this head and Benjamin's remarks at page 654 (4th edition) are therefore pertinent here. He says " Where goods are in esse, and may be inspected by tho buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent and not discoverable on examination, and at least where the seller is neither the grower nor manufacturer. Parkinson v. Lee (2 East 314). The buyer in such a case has the opportunity of exercising his judgment upon the matter; and if the result of the inspection be unsatisfactory, or if he distrusts his own judgment, he may, if ho chooses, require a warranty. In such a case it is not an implied term of tho contract of sale that the goods are of any particular quality or are merchantable. Furthermore, in the case of sales by auction, section 59 of the New Zealand Sales of Goods Act provides that " where goods are put up tor sale by auction in lots, each lot is •privia facie deemed to be the subject of a separate contract of sale." There is nothing to repel the prima facie presumption in this case, and I must hold that the Bale of these 26 bullocks in one lot was one entire indivisible contract, and that therefore the defendant could not rescind it in part by rejecting this one bullock and retaining the remaining 25 bullocks. Young v Walker (1 J. 1873, s.c. p. 72)— A sale of 700 bushels wheat at 4s 3d per bushel, and 700 bushels oats at 3s 6d per bushel, one entire contract, and the buyer could not refuse to accept the wheat and keep the oats. Section 29 of the New Zealand Sales of Goods Act enacts that "it is the duty of the buyer to accept and pay for the goods in accordance with the terms of the sale." In this case the terms of the sale have been performed by the seller. Therefore, the refusal of the buyer to accept the goods was a wrongful refusal, rendering him liable to an action for damages (see sections 29 and 51 of the Sale of Goods Act, 1895). But in order to ascertain exactly the form the judgment should take against the defendant, whether for damages for not accepting, or for goods sold and delivered, it is j necessary to decide whether or no there was an acceptance by the defendant in performance of the contract. In my opinion there was such an acceptance. "Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties " (section 31 of the Sale of Goods Act, 1895). Now we have it in evidence that it is the custom at cattle sales in this district for the cattle to be taken away by the buyers immediately after the sale. Tbis was done in this instance by Murphy, the defendant. Acceptance within this section (37 ■ of the Sale of Goods Act, 1895) — which corresponds to s. 35 of the English Act) then takes place by (1) intimation of acceptance, or (2) acts of ownership, or (3) undue desertion without notice of rejection. In the present case the buyer signified his assent to the sale, and his final adoption of the transaction, by taking the cattle (including this bullock) away from the saleyards and driving them to his own property, and this was also an act in relation to the cattle " inconsistent with tho ownership of the seller." On both Ist and 2nd grounds, therefore, I think that an acceptance has been established, and that the repudiation on the day after the sale came too late, even it' it was not a nullity for the reasons already discussed. The case would have' been different if the cattle had been sent by the seller to the buyer, and there had been no actual inspection by tbe buyer previous to the purchase, no condition making the sale " subject' to all faults " and a warranty, express or implied. Judgment must therefore go to tbe plaintiffs for one bullock sold and delivered, £4: 11s. The item of 5s for grazing is abandoned, whilst no opposition is now offered to the claim for interest, so that the total sum for which judgment must be entered for the plaintiff ia M 11s, with costs £2 6s. I may say for the benefit of the lay public that the sum of the whole matter is this : If a man buys cattle at a public auction, after reasonable opportunity of inspecting them, and if these cattle are sold with " all faults and errors of description," and if there is no evidence that the vendor knew that they were diseased on the day of sale, the buyer has no remedy, if it turns out that the cattle are diseased.