SALE OF FRUIT

Nelson Evening Mail, Volume LXIV, 20 February 1931, Page 9

SALE OF FRUIT

CHARGES AGAINST LAERY AND CO. BUYING-IN PRACTICE Tlic issues in the Laery and Company, Ltd., case at present being beard in the Supreme Court were clarified somewhat yesterday morning when his Honour, the Chief Justice (Sir .Michael Myers) made a statement in which he said that the question of the custom of buying in and selling at a higher price, which had been the subject of adverse comment by him, was a question for the Court, not for the jury, and that the real crux of the case was the terms of the mandate Laery and Company had received, reports “The Post”. The company is charged on five counts with failing to disclose a pecuniary interest in a contract, and on one count with rendering a false sales account. The Crown Prosecutor (Mr P. S. X. Macassey) appears for the Crown, and Mr I-l. F. Johnston, K.C., with him Mr ,T. F. B. Stevenson, for the defendant company. A special jury was sworn in for the trial. Evidence along the lines of that ho gave in the Lower Court was given yesterday afternoon by Francis Brown, a director of the defendant company. When the Court resumed this morning Mr Macassey objected to Mr Johnston calling evidence as to the custom of buying in. “Even if that system is shown to exist it is clearly illegal,” he said. His Honour: “I have no doubt myself as to what the legal position is, and I have expressed my views more than once.” His Honour went on to say that what' he had objected to in his comments was the system of an auctioneer crediting the consignor with the highest auction price, and then charging the purchaser an increased price, including a profit to the auctioneer himself, apart from the commission charged to the consignor; in other words, the trafficking by an agent in goods entrusted to him by a, principal for sale, lie did not intend to put to the jury in this case the question of this custom, because whether or not it was an honest or reasonable practice was a question for the C ourt not for the jury. It was difficult to see how, even if the practice was proved, it could be held to be honest and reasonable. It probably could not be proved because even in Wellington, according to one witness, only two out of the six auctioneering firms adopted the system. Ho had no doubt that it was impossible for the Court to hold that a practice, which he had already pointed out was contrary to law, contrary to equity, and contrary to the first principles underlying the' duty of an agent, was honest and reasonable. The case, however, did not depend on that point at all. The real crux of the case was, and this was what he was 'going to put to the jury, what were the terms of the mandate Lacrv and Company received? Smith, of tii-3 External Affairs Department, said one thing, and Phelps and Brown said another. If what the latter pansaid was correct, then Smith, when making arrangements with Laery and Company, knew, not of the custom as a custom, 'but what was Laery and Company’s practice; and if w-hat they said was correct, then Laery and Company were entitled to an acquittal. “I do not see how it is possible for the Court, even assuming the custom is proved to hold that it is honest or reasonable, concluded his Honour. Mr Johnston: “I think it would be useless for me to call all .the witnesses. ... I have no doubt at all that yourHonour will direct the jury that such remarks as your Honour has made about the custom are not meant to prejudice the case.” , , . His Honour: “Mr Johnston, of course not. The observations I have made are referable only to the defence of the custom as a custom.” There was nothing wrong or illegal in. an auctioned coining to an agreement with his principal to sell goods subject to buying in, but his ruling concerned the oilier practice as a practice. After calling the evidence of growers of fruit from the Hutt Valley district, Mr Johnston closed bis case for the defence and proceeded to address the jury. Tho case, lie said, raised questions of legal interest anil questions of some importance to the jury. A (government Department, it appeared, bad gone into the business of marketing produce without clue care and without any idea of the conditions governing tho markets, and before sending a large amount of produce on Jo the market had failed to find out the terms and conditions of that market. . Mr Johnston was still addressing the jury when the Court adjourned.

JURY DISAGREES NEW TRIAL ORDERED (By Telegraph—Press Association) WELLINGTON, This Day. After full retirement tho Jury was unable to come to an agreement lastevening in the case in the Supremo Court against Leery and Co., Ltd., fruit auctioneers, of Wellington, charged on five counts of failing to disclose pecuniary interest in a contract and one count of rendering false sales accounts to the Department of External Affairs in connection with the disposal of Samoan bananas. . , ~ A new trial for the May session ot tho Court was ordered.