DISPUTE OVER SALE.

New Zealand Herald, Volume LXVII, Issue 20605, 2 July 1930, Page 14

DISPUTE OVER SALE.

DELIVERY OF OATS. • APPEAL COURT CASE. DECISION RESERVED. [IIY TELEGRAPH. —PRESS ASSOCIATION.] WELLINGTON, Tuesday. Tho Court of Appeal to-day continued the hearing of tho appeal of Wright, Stephenson and Company, Limited, from the judgment of Sir Michael Myers, Chief Justice, delivered in December last in tho case of Wright, Stephenson and Company, Limited, v. tho New Zealand Loan and Mercantile Agency Company, Limited.

On tho Bench are Justices Hordman, Reed, Adatns and Ostler. Tho case concerns the purchase by the respondent company of 2000 sacks of oats from the appellant, subject to tho conditions laid down by tho Now Zealand Grain, Seed and Produce Merchants' Federation, which, after delivery, were found not to bo branded as prescribed by tho conditions.

Tho Chief Justice, Sir Michael Myers, gavo judgment in October for tho respondent for £5335 6s 7d and £436 4s 5d costs, in a claim by it for tho amounts paid to appellant and various third partios for the oats. From this judgment tho appeai is brought. In continuing his argument for the respondent company, Mr. A Gray, K.C., contended that there had not been an appropriation of goods to the contract, as required by tho Sale of Goods Act, and tho property in the goods consequently had not passed to the buyer. Thero was no appropriation to which the respondent assented. Grading and Appropriation. The good 3 were sold as A grado Garton oats, and were sold on grade, and could not bo graded except by a qualified expert. The federation's ternu of 1925 included an elaborate sampling and grading system find any grading must have been done in accordance with that svslem. Tho respondent only assented to an appropriation in which, in accordance with the representation contained in tho storo warrant, every sack had been graded and sampled. Thero was no obligation on tho respondent as purchaser to inspect tho goods. Thero could bo no appropriation without a compliance with tho requirements regarding grading. Consideration of tho whole torms imported tho condition that tho grader's certificate was necessary and there was an established practice to supply certificates in all such sales. Respondent required proof by certificate that tho goods conformed to the grade and appellant concurred in his requirement. Unle.s3 this requirement was fulfilled tho proporly could not pass, as thero was no appropriation as required by the contract. Branding Not" mr'ried Out. Respondent alleged that tho storo warrant and certificate amounted to a statement that each sack was graded and branded And such statement had been proved to bo false. Respondent was entitled to relief on this ground alone. Mr. Tread well in support of Mr. Gray, submitted (1) that tho contract was to buy Garto? oats, grado A according to tho federation's terms of 1925; (2) that such salo on grade called for a certificate of tho Government grader; (3) that tho seller did no act requiring tho buyer's consent until after tho store warrant was issued; (4) that if tho assent preceded the buyer's appropriation, then tho assent was qualified, so as to apply only to Garton oats grade A under the tenns of 1925; (5) that in any event tho contract impliedly gave tho buyer a right to call for a certificate. Ho submitted that there was no appropriation, because the parties knew that before appropriation there had to bo a grading by a Government grader and such a grading was essential in all sales of cereals in New Zealand. No correct grading had taken place. The Court reserved its decision.