SALE OF FRUIT

Nelson Evening Mail, Volume LXIV, 21 February 1931, Page 13

SALE OF FRUIT

disagreement in laery case NEW TRIAL ORDERED As a result of the jury being unablo to come to an agreement a new trial has been ordered in the Laery and Company, Ltd., case. The jury retired at 4.18 on Thursday afternoon and they returned at 9.10 p.m. to announce to his Honour the Chief Justice (Sir Michael Myers) that there was no possibility M their coming to an agreement, reports “Tho Post.” The jury was discharged and his Honour ordered a new trial for the May sessions of the Supreme Court. Tho company was charged on rive counts with failing to disclose a. pecuniary interest in a contract, and on one count with rendering a false sales account.

In a summing up, which occupied just on an hour yesterday afternoon, his Honour said that Mr Johnston bad submitted an interesting and able argument that neither sections 5 nor 7 of the Secret Commissions Act under which the company was charged applied in cases like the present, but his Honour said that he would rule, provisionally, for the purposes of the present case, that both sections did applv. Dealing with the charge under section 7, that of rendering a false sales account, his Honour asked, what would the statement convey to anyone? Mr Brown of Laery and Company, had answered with frankness that anyone not acquainted with the so-called custom would think that the 26 cases of bananas had been sold on the. floor of the auction room to bona fide third parly purchasers at 11s a case. The real question at issue, continued his Honour, was probably one of credibility of testimony, and that was essentially one for the jury. It was an underlying principle of the law of principal and agent that an agent was not allowed to traffic in his principal’s goods. This was fundamental, and so it should be for otherwise the door was open to all sorts of fraud and abuses. In the present case the custom sought iu he relied upon was that if a fruit auctioneer had handed in to him goods for sale I e could, presumably without limit, purchase on his own account the goods of his principal and sell on his own account at any price lie pleased. “Such a practice,” said his Honour, “I have said, and I repeat, cannot he regarded as reasonable, and cannot he regarded as honest, in that it contains in it seeds of dishonesty and fraud, and it would open the door'to all sorts of dishonesty and fraud, more especially when the custom is sought to be set up in a trade controlled by five or six firms which, acting together, can make their own rules.” There wore five or six plans which could be thought of to benefit the grower without the' adoption of any such course ns that, relied on in the present case. It did not follow because the practice had been adopted that there was any dishonesty. and his criticism had been directed against the system. There was no evidence before the Court that Laery and Company had acted dishonestly. The real point of the case was what was the contract made between Smith on one side and Phelps and Brown on the other. The Crown Prosecutor (Mr P. S. K. Macassey) appeared for the Crown, and Mr H. F. Johnston, K.C., with him Mr J. F. B. Stevenson, for the defendant company.