SUPREME COURT.

Manawatu Standard, Volume XLI, Issue 9227, 28 June 1912, Page 3

SUPREME COURT.

ELLIS BROS, v HOOTER /ND TOLLEY.

i 'i > SALE OF SEED.

The Supreme Court usumed at 2 p m jfisteiday before Ins 1 HOllOl Mi JuStn-c Coopei, and commenced the honing of (ho ca'u of Ellis 1 Bios. v. Uoddei and 'LoHca, a. claim foi £617 in respect of ««rl supplied Ah Loughnan appealed for plaintiffs, and Mi Inncs and Mr Myeis foi defend ants

Tho .statement of claim set 'cut thafe dcfondants . purohascd from 'plaintiffs';.' their crop of : crested idogsfail; seed,-to 1 % "do-, livorcd. '.n't'-"'d : eferida.nts-'.st6r6. 'jn:.'--J*!eililitig' ■ dt9£d' pcr:\lb.:ir.oin'']<'ebwnr,y v 'to\vMaffli; : 'l9l2,' and llioy: delivered. 103 double" : sacks,:"'con-: tainihg 150' lbs "each.'''■■S'Plaintiifi:'claimed £6ll lls : fov tho;iseed;.ivnir:£b:;os 2d ; for; 1206' sacks.:;ln tJio •alternative"tho.y (lairaed. £225 ,6s 3d; through tho fall' in price. to-6'd per lb, and,'tlie return.of tho' seed.', 1 Tho, defendarits.doiu'ed:'having r refused without ■proper cafisa to accept' dcHvory <if>tho seed,' and denied/'t}iat';, : der fci.dald;s.liad'siiftL'red.damago ; to:;iihc extent ■of 3J,d per Jb.':',Fui'th ; ei i l ihe'de'foncij stilted that tho side was effected : on the- description "Ijrskikss. .'quality : \' .machine-dressed Munpatir ■ seed; '■'.' :.merchantablequality;' 1 arwl tliafc. tho seed did not"..answer'..'that degcriptidji, and .defendants legally rejected tlio-seod; •',,':■,.'■'■..'■.' ',:.':.■'... --Y'/ ;'"■. ,"

George P.; Ellis,; die' of the plaintiffs, and a farmer stated that, 'after' tho seed.hadJboeh dressed he, gave instructions for it,to be delivered, and this was done,, Ho held that the'seed was a-goofl sample;. Mr Cockayne, Government Biolojrift, had tested :a sample' from 80 hags but oi'i 105. A second sample was taken 'out last Tuesday from the same number of bags and'sent to the Registrar of the Supremo': 1 Court 'in Wellington, 'where evito liavo : been'.'taken. - 'Witness had been . growing. grass seed for. many years, and in 1 hil> opinion the sample ' in question was first-cltss and equal'to any he had bought-at various times. The seed was rather: darker' this year on account of •its' being; allowed, to ripen more. ■' Every soason. there ; wero peculiarities in seed. This year's seed was heavier'than the last.

By Mr Myers: Threshing of the dog'stail commenced on February 14th and (hi: ished about March Ist, and' rye' : grass and peas wore threshed at ; tlie siiin'o'time I ,'' The grass had been cut about ten days before threshing. There had been a little rain, but it had not affected tho seed. Through lying about-in the wet and not being'.stacked, the seed would be more or less affected in a poriod of ten' days.'• "Although threshing was commenced on February 14th no seed was put through till tho' ; '22nU, owing to a stoppage on account of the ."wind, fho grass was in small stocks,-and they wero threshing from 'the stock,, The.total area of tho .property was' 4494 acres,' Rye was being grown in five paddocks, and dog'stail in seven. Five of the latter paddocks were cut. ( ■ ■

A. J. Palmer, seedcleaner, stated that he had the best plant,'in'Now Zealand.' Ho had had considerable experience in cleaning crested dogstail. Saridon was the •principal dogstail growing '.district; in the Dominion, and more .of. that, seed had come from S'andori than anywhere in Ngw Zealand during the past seven years.. : Ho cleaned the seed for Ellis Bros., having re- . ceived the usual instructions. . .The -usual way was to produce a first-class .sample of seed. He sent 103 sacks of seed-from Ellis Bros, to Hockler ■ and Tolley, at Feiiding. If ho hail .'seen the description in the salo note he did,not think Ke-would have dressed the seed in .any ■.oilier way.: Ho hud special machinery for re-dressing "seconds." The bulk of the seed only went through ones. Looking at a sample of Ellis's, sped,witness said it was a good average colour, ilr Myers raised the point that if an agreement was come 'to for the sale of seventy acres of grass seed,'and the amount, delivered was either more.or less'tliairthat indicated, tho purchaser was entitled to reject it, according to'the provisions of the Salo of Goods Act. .•' . . His Honor said tho" whole case might hinge on 'this point,, and tit, was for Mr Loughnan to-say-whether.ho would go on with further evidence./ " The case was .continued on the" original grounds, his Honor reserving the point mentioned by Mr Myers'. ;.''.' .. Lionel A', Abraham,, manager', of Bar : rand and .Abraham's., se#i ..department, stated J-haii, lie; l)ad;.kn.dlpdv,a '.'grfjat, (loal of dog's tail seed, ,Thc ; sample produced, drawn by Mr Palmer, was* first-class merchantable seed and about ihe. lioaviost Jia had handled. It was darker in colour than last season's .seed.- :; It compared favourably with seed he had bought and sold, and' resembled one of the, largest lots he had handled this season. . This concluded the evidence for plaintiffs. Mr Myers said that under section -32 of the Sale of .Goods Act,, where a jvendor delivered less than he contracted !o sell, tho buyer might reject.the, whole, land if, the seller delivered,a larger, quantify than ha had contracted, to, sell the buyer, might accept the amount stipulated in' the con-tract-or reject the whole. There was no special agreement in this, case, the, only, arrangement'being- 'hat. defendants agreed to purchase from plaintiffs the crop of seventy acres at so much a pound. It was for the plaintiffs lo prove that they had. performed their contract. They, had not proved that they had' delivered -,the soventy acres of seed, "if tho 'contract/had staled "soventy acres more or less" or "about, seventy' acres," defendant would have had some 'difficulty in establishing their position. ,

.The Court adjourned till 10 a.m. to-day