DISPUTE OVER SALE.

New Zealand Herald, Volume LXVII, Issue 20601, 27 June 1930, Page 17

DISPUTE OVER SALE.

DELIVERY OF OATS. COMPANIES AT LAW. HEARING BY APPEAL COURT. [sr TELEGBAPH.—PRESS ASSOCIATION.] WELLINGTON, Thursday. The Court of Appeal to-day began the hearing of tho appeal of Wright, Stephenson and Company, Ltd., from the judgment of Sir Michael Myers, Chief Justice, delivered in December last in the case of Wright, Stephenson and Company, Ltd., v. the New Zealand Loan and Mercantile Agency Company, Ltd. On the Bench are Justices Herdman, Reed, Adams and Ostler.

Both appellant and respondent carry on business in New Zealand and both are members of the New Zealand Grain, Seed and Produce Merchants' Federation, which has since 1918 laid down the conditions of sale of grain seed and produce in New Zealand. These conditions, unless expressly excepted, are deemed to be included in all contracts for sale and purchase of grain between members of the federation. Tho respondent, in May, 1928, agreed to purchase from appellant's Gore branch two lots of 2000 sacks of A grade Garton oats, each at 4s 3d a bushel, the sale being expressly subject to the federation terms made in 1925. The oats lay in appellant's store at Edendalo until January, 1929, when appellant wrote to respondent asking it to take delivery of tbo goods, which respondent agreed to do by February 28.

Sacks Not Branded. It was shortly afterward discovered by respondent that the sacks of oats had not been branded in the exact way prescribed by the 1925 terms and it therefore refused to take delivery of the oats. The respondent had also purchased frOm third parties various quantities of oats, which had been originally bought from the appellant, for which store warrants had been issued by appellant to its purchasers, such warrants being subsequently endorsed over to respondent. These oats also were not branded in the manner prescribed by the 1925 terms and respondent again refused to take delivery. In May, 1929, respondent issued against appellant a writ claiming the amountspaid both to appellant and to the third parties for the purchase of oats and the case came on for hearing in September and October last, when judgment was given in favour of respondent for £5315 6s 7d and £436 4s 5d costs.

Effect oI 1925 Terms. The Chief Justice, in the course of his judgment, held that if the sale had been governed solely by the Sale of Goods Act respondent could not have succeeded, but the inclusion of the 1925 terms enabled respondent to succeed, for the appellant had not complied in full with those terms.

The Chief Justice pointed out that reI spondent itself in some of its stores ! was not in the habit of complying strictly with these terms and had adopted the same practice as appellant had done, of branding only a few of the sacks in each lot, but that, although that might have made respondent's claim unmeritorious from a commercial point oi view, it did not affect it at law.. Mr. 11. F. O'Leary, for the appellant company, contended that although the respondent company might have a right of action against the appellant as a warehouseman, it had no right of action against it as a vendor. He submitted: — • (a) That the contract was for the sale and purchase of A grade Garton oats. Goods were appropriated to the contract, of correct quality and quantity, with the assent of the buyer and the property in the goods consequently passed to the buyer, who could not afterwards reject them when delivery was tendered in February.

Alleged Acceptance ot Goods. (b) Even if the contract was for the sale of Carton oats, to he graded and branded as to each sack as required by the 1925 terms, the buyer nevertheless took delivery of the goods as actually tendered and haying accepted them could not afterwards reject them, hut was relegated to an action for damages. (c) As the branding marks did not affect or denote the nature, quality or commercial value of the goods the seller was not precluded from showing that the goods the subject matter of the store warrants were actual goods appropriated to the contract. Counsel contended that before the issue of the store warrants and the grader s certificate an appropriation of goods of correct quality and quantity bad taken place by the vendor, with the assent of the purchaser, and the property in the goods had passed, 'ihc assent of a purchaser could L>e expressed or implied and might be given before or after an appropriation was made. An express assent took place by the request for the store warrants and this had actually been done in the case before the Court. A store warrant was merely a warehousemen's document, which, although io raisht misdescribe goods, could not affect their appropriation. In any case the marks on a store warrant did not go to the description of quality, but were for the purpose of identification only, and it was open to the vendor to prove identification by other' means.