AN APPEAL CASE.

Marlborough Express, Volume XLIII, Issue 139, 10 June 1909, Page 8

AN APPEAL CASE.

[Before his Honour Mr Justice Cooper.] P. J. O'DONOGHUE v. E. E. BELL. Mr G. Rogers represented the appellant and the respondent was represented by counsel. Mr Rogers said the case was an appeal from a judgment given by tho Magistrate in the lower Court, when Bell was awarded £50 damages and costs. The claim was for damages through the defendant supplying plaintiff with a quantity of chaff, which was held to be damaged and unfit for use. He claimed that the [ chaff was prime, and that it was used in great part by the plaintiff, and that unnecessary delay occurred on the plaintiff's part before objecting to the quality of the chaff. Although the evidence tendered by the plaintiff and his witnesses was directed to show that the chaff was useless, being wet and clogged in the bags, which had thereby become rotten and useless, yet it was proved, and should have been so found by the Magistrate on the report of two independent persons, who, at the suggestion of the Magistrate, with the consent of the parties, examined the chaff at the plaintiff's barn, that only eight out of the entiro quantity of 141 bags were slightly damp in part; that none of the chaff was wet, and the bags were not rotten and useless. No evidence had been adduced to show that vermin existed in the chaff at the time of the delivery of same to the plaintiff. The plaintiff did not know of such defect when h© instituted his action, or when he gave his evidence. The evidence showed that any cause of action founded on the contention that the chaff was not prime was made the subject of another agreement -between the parties whereby the plaintiff and the defendant should sort the chaff delivered, and that the plaintiff would accept from the defendant other chaff in place of any damaged. The. plaintiff himself took from the premises of defendant 25 sacks, selected by himself in place of inferior ones which might be found. The defendant had always been willing to carry out his agreement He contended that the original claim not having been amended, the Magistrate should have non-suited plaintiff, or given judgment for the defendant.' Tho damages awarded were excessive, and the judgment was given against the weight of evidence. Mr Rogers reviewed the evidence given in the lower Court and contended that the only case appellant had to answer was the allegation that the chaff was not prime and that it was rotten. Nothing further had been | alleged until expert evidence was in- j troduced, but that was not until after the case had closed. He submitted that no evidence was given to show that the plaintiff knew of the chaff being infested with vermin, and no mention was made of vermin, in the chaff until after the expert evidence had been given at the instigation of the magistrate. He directed his Honor's attention to the conflicting evidence of the witnesses as to the value of the chaff. _He pointed out that disinterested witnesses assessed the alleged damaged chaff at £3 10s per ton t and that the plaintiff had assessed it at £2 ss.

The Court adjourned until 2 p.m. Mr Rogers 2 when the Court resumed, said his client had found a letter that had not hitherto been produced, and said it would clear up the confusion of dates.

Counsel for the respondent in support of his contention that the appellant could not succeed, quoted evidence that had been given by certain witnesses. He said that the witness Gosling had stated that he would not feed his horses on the chaff. Another witness named Snowden in referring to the stack had said it had not been thatched, and that several loads of sheaves had to be thrown off the stack before threshing was commenced. J. Snowden had also stated that the stack was'damp at the bottom. Again, on the other hand, O'Donoghue had visited the sheds where some of the chaff had been stored, and upon seeing tne chaff had remarked, "Chaff like that should never have been sent out." Mr Farr had, in his evidence, stated that the chaff was not prime but it was fair. Another buyer for a local firm of merchants. Mr Broughan, said they would not buy the chaff at any price, because they only bought prime chaff. He submitted that no new arrangement had been made. His Honor held that a- new agreement had been made, as was shown by the respondent's acceptance of the appellant's promise. (Left Sitting.)