DOUBTFUL OATS.

Marlborough Express, Volume XLVIII, Issue 111, 13 May 1914, Page 7

DOUBTFUL OATS.

"A GRADE GARTONS."

AN APPELLANT NONSUITED.

A peculiar case which occupied the Attention of the Court of Appeal a few days ago was that, in which John Biyfcger,, of Invercargill, ' appealed from .the judgment m Sir Joshua Williams, given against him in his suit for damages which he sought from Robertson Bros., of Aucldand, for failure to deliver certain oats. Judgment on the appeal, which was heard by their Honors the ' Chief Justice (Sir Roberit, Stout), Mr tice Edwards, and Mi- Justice'oim, was read by Mr Justice Edwards. It had the effect of nonsuiting the ap- • pellant (plaintiff in the Court below). The plaintiff purchased a quantity of "A grade Gartbn bats" from 4he defendant; and a parcel of the oats, shipped later than the rest, in the Star of Canada, and salved from her -after she^ was wrecked, were found to contain 20 per cent, which was not A grade Gartons. This was-' contended.to be a complete breach of .the contraqt, and the jury! found a verdict for 'the plaintiff on all the questions put before it. His Honor Sir Joshua Williams, however, taking other matters than the jury's finding into consideration, gave judgment for .the defendant. The. appellants claimed that, on the findings of tho special jury, the appellant plaintiff was and is entitled to judgment tor the amount found by the jury; that the finding of the Judge on which he gavo judgment for the defendants was a deduction which he was not legally entitled to draw, and was quite inconsistent with the facts as found by the jury; and that even it it was competent for the Judge rto decide an issue which was not in terms placed before the jury, the Judges finding in itself was wrong both in fact and in law.

The Court of Appeal judgment traversed the evidence, at length. The oats, in so f:vr as the delivery was concerned, were represented by store warrants, which were delivered; and j the respondents, having discharged their obligation under the contract to deliver to the appellant store warrants representing the oat? sold, had done all that was in their power to deliver the oats to the appellant, and it then ,beca.mo incumbent upon him at soni* 1 time during the month of November, 1910, either (to laccept .or reject the oats which were thus tendered for his acceptance. The Court put the period within which the appellant sbpuld have performed this duty as within the month of November, because tthat was the period within ..'which the contract required .the goods to be delivered. The proper /course for the appellant to have taken

I was to present tne store warrants to the 'warehouse-keepers, and to do 1 mand io be shown the oats to the dei livery of which their possession .en-. ! titled him. He should then havo examined the oats, and have either i accepted them or. rejected them, llio I final conclusion of the Court was thau I tho appellant should have been nonI suited ap tho trial, and the judgment I Avould be varied accordingly. Subject 1 to this the appeal was dismissed, with costs on the'highest scale as on a case from a distance. -■