COURT OF APPEAL.

New Zealand Times, Volume LVI, Issue 2212, 22 May 1894, Page 3

COURT OF APPEAL.

The cate of the Canterbury Seed Company (appellants) v. the J. G. Ward Farmers' Association of Now Zealand came before the Court yesterday morning on appeal from a judgment of Mr Justice Williams, given at the last sittings of the Supreme Court at Invercargill. It appeared from tho statement of claim that the J. G. Ward Farmers’ Association in March, 1893, sold ,to the Canterbury Seed Company a cargo of ryegrass seed to be shipped f.o.b. at the Bluff, tho price agreed upon being £223 16s 2d. The seed was duly shipped f.o.b. at the Bluff, and sent on to Lyttelton, whence it was removed by the Seed Company to their store at Addington. They subsequently dishonoured tho draft of the Farmers’ Association on the ground that some of the seed was not up to sample. The Canterbury Seed Company’s store was afterwards destroyed by fire, and the seed was all burnt. They objected to pay to the Farmers’ Association tho stipulated price on the ground that they had' rejected the seed as not being up to sample. The Farmers’ Association then brought an action in the Supreme Court which was tried by Mr Justice Williams and a common jury of four. Tho jury found that the seed could quite conveniently have been sampled at the Bluff and the Court decided that the Seed Company, ought to have inspected and sampled the seed at Lyttelton, and that not having done so and having removed the goods to their store they lost their rights of rejection, and therefore would have to pay, Judgment was accordingly given for tho plaintiffs (the Farmers’ Association) for the amount of the claim, less £8 15s 6d, a deduction, agreed upon at the trial, for deficiency in quality. Mr Edwards, with him Mr F. Wilding (Christchurch), appeared yesterday for the appellants, and Sir Robert Stout, with him Mr J. L. Watson (Invercargill), for the respondents. Sir Robert Stout, as a preliminary objection, submitted that the Seed Company had no right of appeal. Tho action in the Court below had been' tried by judge and jury, and the next step in the matter ought to have been an application to tho Supreme Court for a re-hearing. In support of this contention a number of English authorities were quoted. Mr Edwards complaiued that he had had no notice of this objection. There ought to have been notice of motion to strike out the appeal. He would like time to look into the authorities.

Tho Court decided to proceed with the hearing of argument on the appeal and intimated that if necessary it would give Mr Edwards an opportunity of replying to the preliminary objection. Sir Robert Stout stated that the points relied upon for tho respondents wore; —(1) There was a sale of specific goods and no sale by sample. (2) There was not a sale by sample at all s not even a warranty. (3) There was no rejection of the goods. (4) There was no power to reject the goods because tho goods had been receival at tho Bluff, and the power of rejection was then too late. As subsidiary points it would bo contended : —(1) That the appellants had an insurable interest in the goods after arrival at the Bluff, and (2), tho right to stop in transitu was gone after arrival at Lyttelton if not at the Bluff.

Mr Edwards then entered upon his argument in support of the appeal. He had not finished when the Court adjourned, and ho_ will therefore continue his argument this morning. -