SUPREME COURT

Nelson Evening Mail, Volume LVI, 6 March 1925, Page 5

SUPREME COURT

ALLEGED BREACH OF CONTRACT

The hearing of the action Berryman v. Howson, alleged breacn ot' contract- to purchase sheep, was continued at the Supreme Court yesterday afternoon before Mr Justice Ostler. Mr C. R. Fell, with him Mr W. C. Harley, appeared for plaintiff and Mr I. Patterson, of Reefton, for defendant. A. N. Wilkinson stated Unit be bought some sheep at- tile sale at Mr Berryman's on 26th February. There were no lice on the sheep. The sheep were in very good condition. This'was the case for the plaintiff. The defendant, in evidence, said he owned a sheep farm at Aliaura, which was about 145 miles from Stanley Downs. At the present time he was carrying on business as a, butcher at, Runanga. ITc had had a liie experience amoagst sheep. lie arranged to take 500 to SOO ha If bred ewes from plaintiff and 400 to 600 hnlfbml wethers. Plaintiff said he had topped the Wellington market with his wool that season. Plain tiff said if witness took the sheep lie would dip off the shears. Plaintiff asked him if he could do with 100 crossbreds and he agreed to take 100 subject to dipping. He was impressed with the fact that plaintiff’s halfbml wool topped the market in Wellington. A contract note was signed. He did #mt say anything to Hugh Berryman about forgetting to tell his father to dip the sheep. On' 14th February he arrived at plaintiffs farm and found tlie wethers in one yard, and they were still yarding the ewes from the paddock. Ue made a tally and found the sheep were not according to the contract. He made an examination for lice, and found several sheep infected. He. regarded the condition of the sheep ns unsatisfactory and went to plaintiff and asked if the sheep had been dipped off the shears. Plaintfff said it was not in the agreement and witness said it was. Hodgkinson also said ho remembered that the sheep were to he dipped off the shears. He also told plaintiff that the sheep would not tally with the contract, there being too many crossbreds and too many coarse wools and he refused to take delivery. He caught, a louse and showed it to plaintiff under a magnifying glass. No one said anything about a bit of dirt. His Honour: Four witnesses have said that the first thing you showed with the magnifying glass was a speck of dirt. Are they all telling an untruth? Witness: It. is not correct. There was nothing about a speck of dirt. Continuing, defendant said he did not think the dipping would he completed that afternoon. He considered ihe dipping was poorly done, Cross-examined : He was a butcher and also had a farm of about 1250 acres. He was buying plaintiff’s sheep for his farm. He did not go to plaintiff’s with the intention if possible of refusing to take delivery. He took delivery of Hugh Berryman's sheen after the threat of a writ. There was at the time a difficulty in arranging for finance for Hugh Berryman's sheep. He had no_ financial difficulty regarding plaintiff’s sheep. He could not remember that he stipulated that Hugh Berryman’s sheep must be dipped off shears. He found only one infected sheep amongst Hugh Berry/ man’s, and lie rejected that. He. did not consider plaintiff’s much of a dip. On the Court resuming this morning Alfred Smith, farmer and stock dealer, of Thorpe, stated that between September, 1923, and February, 1924, there was not much difference in the price of halfbred sheep- He- would take delivery if the number of sheep was within 5 per cent, of the contract note. Frederick Hodgkinson, farmer, of Tadmor, local agent for the Canterbury Farmers’ Co-op. Association, stated that he visited plaintiff’s farm with defendant and detailed negotiations that ensued regarding the purchase of sheep. (After answering a few questions the witness collapsed in the box and was • carried out of Court). Two other witnesses were called in the meantime, and as Mr Hodgkinson had not recovered when their examination was completed ihe Court.was adjourned for 20• minutes). Continuing his evidence, Air Hodgkinson gave further details of the fixing up of the deal. Plaintiff asked if defendant would take 100 crossbred ewes as well as from 500 to 800 halfbreds. Defendant asked plaintiff if he would dip the sheep off the shears. Plaintiff said it was not his custom, bub that if defendant wanted the sheep dipped off shears he would do it. Ho went with defendant to take delivery of the sheep from plaintiff. Defendant_cxainined the sheep and then told plaintiff that they were lousy. Plaintiff asked to be shown lice and defendant said it. was not his place to show plaintiff the lice and that plaintiff had best get the stock inspector. Plaintiff said that- seeing was believing and defendant showed plaintiff what lie called a "buck louse. ’’ Defendant said lie would not take the sheep and asked plaintiff if ho dipped off the shears. Plaintiff said no, but that he would dip the sheep and defendant Bike delivery after the dipping. He himself examined some sheep and found them lousy. He caught at least 25 sheep and foundi iiee on every one of them—-and on big wethers/ where lie never expected to find lice at all. At 5 o’clock there were Still 400 sheep to dip. An arrangement -was made that Hugh Berryman’s sheep were to be taken off the shears, and thus were not. required to be dipped. Cross-examined: None of the Berrvnans were about when defendant counted the sheep. He heard nothing about ihe specie of dust, but he heard about the ‘ buck louse.” ’ Charles Henry Thomas. Nelson manager of the Canterbury Farmers’ Coop. Assn., gave evidence as to his firm financing defendant- regarding purchases of. stock in Nelson district. Lee W.’ Davies, auctioneer for the Canterbury Farmers’ Co-op., sold the line' of sheep rejected by defendant. They were sold as a line of halfbreds, with the exception of 100 crossbreds. Between September, 1923, and February, 3924. there was a dry spell and there was a fall in the values of crossbreds, but. lie sold no other halfbreds. llnlfBreds would not fluctuate so much as crossbreds, but it would depend on the price of wool. Cross-examined: He. understood the sheep had been dipped and lie heard no complaints about lice. Counsel having addressed the Court. His Honour .said lie would give judgment straight away. His Honour held that on 14th February there was not a short delivery—plaintiff was not below the number in the contract. The onus of proof that the sheep were to be dipped off the shears was on the defendant, and lie had not proved it. * In this regard lie accepted the evidence of Hugh Berryman. The sale was one by description, and defendant'' could not succeed in his contention that the sheep were not according to description. In his opinion the defence wholly fails and plaintiff was entitled to. damages. A verdict was given for plaintiff for £231 17s, with costs on middle scale, witness’ expenses, £5 5s for counsel second dav, and £5 5s for second counsel.