O NEGLIGENCE PROVED

Manawatu Times, Volume LIII, Issue 6666, 20 July 1928, Page 3

O NEGLIGENCE PROVED

A Butcher’s Claim Against Stock Company TRANSACTIONS IN LAMBS Reserved judgment was delivered oy Mr. J. L. Stout, S.M., at the Redding Magistrate’s Court yesterday ia the civii action in which the New Zealand Farmers’ Distributing Coy. of Feilding proceeded against F.J. Mann, butcher, of Feilding to recover ,£192 12s 3d, being balance in current account owing by defendant to the company in connection with certain transactions in lambs. The defendant counter-claimed for £3OO damages, alleging negligence on the part of the company" and its servants when acting bn behalf of .defendant in stock dealings. When the hearing opened it was decided, after hearing the general manager of the company, to hear defendant on the counter-claim. After defendant’s cdsc on the counter-claim had. closed Mr. J. Graham for plaintiff company, moved for a non-suit on tho ground that (defendant had failed to prove negligence Proceedings then rested pending 'the Magistrate’s decision on the ■ non suit point. . "In my opinion,” said His Worship. ,in delivering judgment, “the, plaintiff must have judgnlent on his claim which is for .a balance of account on tho current account of. defendant. Tho real ■ contest, however, has been on the, counter-claim, which is a claim for £3OO damages for the alleged negligence of tho plaintiff company in Handling'the defendant’s lambs. Vvhen the- defendant had concluded his .evidence- on the counter-claim, -Mr. Graham, counsel for plaintiff company, moved for, a non-suit upon th© ground that, the defendant had not discharged tho onus on him of prpving negligence. I indicated during the. hearing that tho evidence did not . disclose any negligence up to the time the lambs were shorn and sent to defendant’s farm. I am also satisfied that although there was a loss pn the lambs the company did their best in the circumstances, and that the loss cannot be attributed to their negligence. The defendant, although he claims that the lambs were mishandled from the. start, admitted that althbugh ho allegedly complained to Kerr, his partner, that ho did not complain to the company because ho was ■ shielding his partner. Ho alleges that it was negligence to pasture!the lambs at Mcelroy’s,but although ho was up at that farm within a few days of their, going there, and knew tho class of. pasture, ho made no complaint to the company and must, in my, opinion, bo taken to have acquiesced in their being there. One of two witnesses further stated that tho company had done the best thing they could in obtaining grazing. “The other negligence he relies upon is that-the company, instead- of selling the lambs, held"them too long. The fact that a company, in tho exercise of its judgment, held in the hopes of the market becoming firmer is not, in my opinion, negligence. Tho evidence discloses that buying forward lambs is a speculation and that the 'trend of tho market is also a speculation, and there is evidence that after January tho supply of lambs was greater than the demand. Besides, tho defendant' could at any time have exercised his owu judgment and given the company definite instructions to sell. Whenever he was faced with the question, why he did not complain or why ho did not give such instruction, he gives the excuse already referred to, that ho was protecting. Kerr. Even then, if the holding of tho lambs could be considered negligence, in., my opinion, .he acquiesced in that conduct and cannot now rely upon such negligence. If a litigant clai; damages he must show that he did his best to minimise tho damages and this the defendant certainly did not do. "For the reasons I have given I am of the opinion that tho defendant should bo non-suited on his counterclaim with usual costs. I give judgment on tho claim for £192 12s 3d with costs £lB 2s Cd. Defendant is nonsuited with costs to plaintiff £ls. Mr. D. C. Cullinanc appeared for de-. fendant.

An application by the defendant to, join Herr, whom defendant alleged wai his partner, in the lamb transactions, with the company as defendants to the counter-claim, was refused.