SUPREME COURT.

Marlborough Express, Volume XXXVIII, Issue 278, 20 November 1905, Page 2

SUPREME COURT.

FOUR-MONTHLY SESSIONS

CIVIL BUSINESS

SATURDAY, NOVEMBER 18

(Before his Honor Mr Justice Cooper.)

On resuming at ten o'clock on Satorelay morning the Supreme Court commenced the hearing of the case

HOSKRUGE & DICK v. WIFFEN

In this case F. Roskruge and W. Dick, farmers, claimed against Arthur Wiffen, merchant, for £260 for breach of contract-

Mr McCallum appeared for plaintiffs; Mr H. D. Bell (with him Mr McNab) for defendant.

A special jury of four was empanelled, as follows:—J. Benuing (fors-

man), Wm. Blick, Win. Morrison, and W. A. Sowman.

The statement of claim set forth that on June 7 defendant took delivery of and accepted 600 sacks of barley, at the price of 3s lOd per bushel, equal to £460 3s lOd, sacks extra ; that of this amount defendant only paid plaintiff £265 14s 3d, leaving a balance owing of £209 9s 7d, which the defendant had refused to pay. In the alternative, the plaintiffs claimed that the defendant entered in the contract in his own name as the undisclosed agent of some purchaser, and did not then disclose and has not since disclosed the name of such purchaser ; that the defendant accepted the said barley and paid for portion of the same, and there is now owing to the plaintiffs in respect of the balance £209 9s 7d. In the further alternative, plaintiffs claimed that the defendant had not the power to purchase on behalf of another as alleged. The statement of defence denied that delivery of the 600 sacks was accepted by Wiffen, but alleged that defendant was the agent of the plaintiffs to sell certain barley by sample. The defendant communicated with Manning and Co., of Christchui'ch, transmitting to them a sample of plaintiff's barley, and offering such at a specific price by sample. By the custom of trade in Marlborough all barley was sold by sample. Manning and Co. made an offer at a lower price by sample. Defendant informed them of the transaction, and they accepted the offer. The barley was, as to part thereofj not equal to this sample, and the plaintiffs were only able to deliver to the defendant 344 sacks equal to sample. The sole reason why the sale to Manning and Co. could not be carried out was because the plaintiffs could .not provide barley equal to sample. Mr McCallum said the litigants were the usual confiding, trustful farmers and the wily'merchant—the latter better up in law than the former. The keystone of the case was that plaintiffs kept the barley in stack and allowed the purchaser to sample, it in that form. Plaintiff agreed to sell at 4s less 2i per cent, discount. Later on Mr Wiffen wrote offering the barley to Manning and Co. Mr Wiffen offered it at 4s Id, but Manning replied saying that lie would accept the D.R. lot at 3s lOd. Messrs Roskruge and Dick accepted the 3s lOd offer, which was put in writing. Roskruge understood that Mr Wiffen was going to allow 2J per cent, discount. The words in Manning's letter, "on your account," didn't mean anything different. Counsel surmised that Mr Wiffeu sent down to Christchurch some bright sample and sold that. Rejections followed; but plaintiffs contended that the defendant was bound to take the whole of the barley. As it was, 344 sacks only were picked out. The barle«y had been branded O.M.C. (Otago Malting Company). Mr Wiffen also sent some sacks branded 0.0. (314 sacks). Manning wired back that tnat was not according to contract. Wiffen wished to ring m some 0.0., and ignore Roskruge and Dick's lot. Perhaps that was the crucial point. Counsel for the plaintiffs then called Francis Roskruge, farmer, in partnership with Wm. Dick, junr., at Lower Wairau, who said that in 1904-5 he had 190 acres of barley, out of which he threshed 1300 to 1400 bags of "firsts" barley. Of this lot 1134 bags were sent to Mr Corry's store— 600 Gisborne, and the balance Chevalier. His firm was not in the habit of submitting samples. In May the barley was still unsold, aaid he offered it to Mr Wiffen, saying they had a lot of barley to dispose of. Witness arranged that defendant should send someone to Mr Corry's store with Mr Dick to take, his own samples., Mr Wiffen asked about the price, and he offered it at 4s for the lot. On May 31 witness got a telegram from Mr Wiffen asking him to come in and see him. He went in, and Mr Wiffen said he would give him 3s lOd, less 2| per cent, commission, for his Gisborne barley. Witness replied that he was agreeable, but would like to see his partner. Having done so, he went back arid confirmed the agreement. On June 7 he got a sale note from Mr Wiffen, which he left with his partner. He next saw Mr Wiffen on or about June 26, and, from what his partner had said, he went and saw Wiffen, and asked him to give a cheque for the : barley. Wiffen had replied that he could not do so that day, as the parties he hadUsent it to had refused to honor the draft, on the grounds that he had not sent the quantity he had sold. Witness then said: " The barley is lying there in the store- Why don't you send it? " Wiffen replied that he could not do so, pending correspondence with a certain firm. Wiffen then said, " If they don't honor the draft I will pay you with my own cheque." Witness some days later saw Wiffen, who gave him ji cheque for £265 14s Witness then asked what about the balance of the barley. Defendant replied he could do nothing further aust then. Witness said: "It is not a fantransaction to throw the barley back on our hands after taking the eyes out of it. The barley you left us now is not the same barley, and we are no., going to agree to it." Witness thought Wiffen made no reply. Cross-examined: He was still ot the opinion that 600 was the number of Gisborne bags mentioned. No one else was present when he had ms first conversation with Wiffen. Nothing was said about commission at that interview, only at the second interview. He did not know whether Dick saw Wiffen before the Ist of June. Wiffen never told witness that he was not a buyer himself, but that he would sell for him. On Ist June, when he interviewed Wiffen, Mr Montague Wiften was not present. Defendant did not show him a communication from Manning and Co. pn that day. He did not know that Manning and Co. had agreed to pay 3s lOd. On Ist June, Mr Wiffen said he couia give witness 3s lOd for his barley, if he would give him a commission of 2& per cent, tor buying. He was sure it was not commission for selling. He. had heard of oemmissions for buying. Ihe sale note got from Wiffen used the word "sold," but his near-sightedness prevented him noticing this at the time. \t the time he read it he understood that it correctly represented .the transaction, out and out, between Eoslmige and Dick and Wiffen. He would swear that Wiffen was never appointed their agent to sell. His barley bags were not branded. He had never asked Wiffen to sell the rest of the barley on his account. • Re-examined: He had never attempted to sell the balance of the 600 bags of Gisborne. To him 2i per cent commission meant no difference from yi discount on eurront account. "William Dick, junr., farmer, Lower Wairau, corroborated the evidence or his partner. Witness went to Corry's store along with Montague Wiffen. Mr M. Wiffen took the samples, himself, he supposed from 40 or 50 sacks. Defendant looked at the sample, and said, "It is really good barley. I wish I had had a sample before, to send to Sydney." On 19th June Mr M. Wiffen came to his (witness's) house, and said they were prepared to take the barley, and asked for delivery. There were present at Corry's store next day Mr Farr, the storeman ; Mr Askew, sampler for defendant, and Mr M. Wiffen. Askew commenced throwing the barley about, taking some and leaving some. Witness objected, and said he should take the lot, Of the 601 sacks in that heap, 344 were taken that day. Witness was sure the heap contained Gisborne barley. He had never released defendant ixom having purchased the other 250 sacks

Cross-examined: He thought when he saw the document of the transaction that it was alright. Wiffeh did not say he would not attempt to sell the Chevalier barley. They understood that Wiffen had got an offer before he decided to buy from them. Witness knew Wiffen ivas sending a sample of their barley away, and thought this was done in order to ascertain what price he could afford to buy at.

John Joseph Corry, grain merchant, •said a customin Marlborough in buying was to give a commission or rebate to the vendor of 2j- per cent. off.

Jilrnest James Farr, grain storeman, employed in Corry and Co.'s store, .said that last season the grain came in very quickly. t Mr Morrison, the previous storeman, had instructed him as to every stack in the store. "Witness had indicated to M. Wiffen the stack of 601 sacks of Gisborne barley belonging to Roskruge and Dick. On the delivery day an argument commenced, and M. Wiffen said it was not up to sample, and that some of it was sewn with a different twine. Mr Wiffen then asked to be shown the stack, and he and Morrison both indicated it afresh. Dick, speaking to M. Wiffen, said, "They have taken some; they should take the lot." The best of the barley was picked out. The remainder was there yet. It was possible there were a few sacks of other people's barley mixed with that of Roskruge and Dick.

Mr Bell said counsel for the plaintin\had founded his action upon a verbal sale, but had now shown in evidence an entirely different contract. He submitted that plaintiffs made a contract with Wiffen, and one'entirely contrary to that put forth in the statement of claim. There was no sense in it. His friend had imported into it a very serious charge ot fraud against defendant. Defendant was charged practically with giving these farmers a document with the object of defrauding them. Counsel, did not think defendant was there to meet that.

His Honor said that if counsel for the plaintiffs wished to substitute the verbal agreement and abandon the document which he seemed to suggest was put before the farmers to defraud them, he could abandon the latter.

Mr McCallum contended that, Mr Wiffen having put his name to the document, that document should be considered only as a bought note in the light of later letters. In the light of the evidence he did contract personally.

After the luncheon adjournment, counsel for the plaintiff addressed the Court in reply. The fact was that Wiffen bought as principal in his own right. The contract made verbally on the Ist of June was now enforcable by reason of the delivery subsequently of the whole contract and payment of a portion of the price; so that, for all the purposes of the claim, the letter of 7th June might be eliminated. His Honor said that would be the same thing as setting up a separate cause of action. If plaintiffs set up that there was an actual sale on June Ist, reduced to the form of a letter on 7th June, then the case must amount to a charge of fraud against defendant.

Mr McCallum quoted authorities to show that defendant was estopped. He evidently did not want plaintiffs to know he was dealing with Manning and Co., for the evident reason that if they had known they would have sold their barley direct and saved commission. Defendant had not waited for Manning to reject it, but rejected it himself. His Honor said he would be prepared that counsel should amend the statement of claim if he would pay the costs of the present sitting, and adjourn the case till next sitting. The statement of claim put in was not supported by the evidence. What counsel should set up would be a verbal agreement on June Ist, supported by what occurred on June 29th. He would not have the right to withdraw such a plea from the jury. Mr McCallum then asked for an adjournment. Mr Bell objected. The written document must be attacked before the verbal contract could be dealt with. He submitted that His Honor could not allow, opposing counsel to frame sxis action in a way attacking defendant's character. His Honor observed that of course an adjournment would cost as much as a non-suit, and the acceptance of the latter would leave the plaintiffs a free hand to come again. But the only plea he could allow to go to the jury must be one involving a charge of fraud against defendant. Mr McCallum: Oh, well, my friend has courted it. Mr Bell: Of course I have invited it; and I want it as fully as possible. His Honor said that of course he was not blaming the defendant. The case which counsel wished to put was now this: Two farmers came to defendant, and he took advantage of their ignorance and defrauded them. It was a serious matter. Then a jury might give a verdict for defendant, which would prevent counsel bringing the case afresh altogether. It seemed to him that the case was reduced to the question whether or not defendant had taken advantage of the ignorance of plaintiffs and got them to sign something the nature of which they were not aware of.. Counsel for the plaintiff accepting a non-suit, costs were allowed on the middle scale; and the jury were discharged. ' '