“BREACH OF DUTY”

New Zealand Times, Volume XLIX, Issue 11222, 30 May 1922, Page 4

“BREACH OF DUTY”

CLAIM AGAINST STOCK CO. INTENDING PURCHASER’S FINANCIAL ABILITY.” SUPREME COURT CASE. Some important points were involved in a ease in the Supreme Court yesterday before His Honour Mr Justice Chapman, when the claim of William Alexander D’Arcy, of Wanganui, farmer, against Dalgety and Co., Ltd., of Wellington, stock agents, and John T 1 miry Powell, of Charleston, butcher, was heard. Mr L. T. Burnard (of Gisborne), instructed by Marshall, Hutton and Izard, appeared for the plaintiff, tho defendant company being represented by Mr C. P. Skerrott, K.C. NONSUIT NOW ASKED FOR. Heard originally at Wanganui on February llth last, the case before the present court was ill relation to three motions—by the defendants’ motion for nonsuit and for a new trial, by the plaintiff a formal motion for judgment on the finding by the jury in the lower court, and on the facts disclosed in that evidence. The defendant claimed damages amounting to £BOO for breach of duty on the part of the company. Tlia findings ’by the jury in the original trial were in favour of the plaintiff on the following three issuc6:—(l) The existence of a general custom under which a stock agent was liable for completion of the contract; (2) that delivery of the stock was given to the purchaser with Dalgety and. Co.’s approval ; and (3) that the stock agent must introduce only a purchaser of approved financial ability. In tho amended statement of claim before the Supreme Court, it was alleged chiefly that the defendant, Pow. ell, had failed to/6omplete the purchase of certain bullocks because of his inability to pay for them; and that tho defendant company owed a duty to plaintiff to exercise reasonable skill, prudence and carp in respect of the person to whom the sale of the stock was to be made. “REAS3ONABLE INQUIRIES.” Plaintiff claimed that Dalgety and Co. should have made reasonable inj quiriee as to the financial position of the proposed purchaser before . completing the contract, communicating to the plaintiff such information. Relying upon Dalgety and Co. to exercise such caro and discretion, plaintiff claimed they had failed to exercise those qualities in regard to the purchaser, the' defendant Powell; and, as a consequence, plaintiff said he had suffered loss and he, therefore, held tho company responsible as having intro, duced Powelf. NO SPECIFIC LOSS. Most of yesterday was occupied by defendant’s counsel in stating his case, based upon a mass of technical evidence culled from legal authorities. What plaintiff apparently contended, said counsel, was that, had Dalgety and Co. done their duty in ascertaining the financial ability of Powell, tbo plaintiff would not have mande any eontract with that defendant. But, suggested counsel, plaintiff did not appear to have sustained any specific loss, for no loss had been proved to have accrued to him by entering into the contract. Plaintiff, said counsel, still had his stock: in' fact he had never parted with the stock, and the basis of the contract, contended counsel; was not a guarantee that the sale should go through. In any case, said Mr Skerrett. K.C.. the real measure of damages was the difference between the contract price and the market- value of tho cattle at that time. The cattle were not sold until October, and there was not a shred of evidence, he contended, to show what was the market price of those cattle in July. A? the cattle had been mistakenly taken for Dalgety’s they had not been sold: but no charge for grazing was for that reason permissible. “A SOLVENT PURCHASER.” Mr Burnard, for the plaintiff, then cited a number of decisions hearing, he contended, on the point that there was certainly a duty on the part of the defendant company, as agents, to introduce only a solvent purchaser. The same principle, suggested counsel, existed in this case as in the case of an agent introducing a tenant to a landlord. It was, he maintained, just as much the obligation of a stock agent to produce a solvent buyer for the stock as it was the obligation of a hoUse agent to produce a reliable and solvent tenant. In depending upon the defendant company’s introduction of Powell, plaintiff had lost an opportunity of another sale. It was quite true. admitted counsel, that plaintiff still had his cattle, as contended by the company’s counsel; but it was equally true that plaintiff had lost his opportunity to sell to advantage. WHAT IS AN AGENT? Asked by His Honour to define his idea of tho term “agent,” Mr Burnard submitted that’ an agent in a caso such as tho present one was a person who was aware of tho alterations in market quotations, and awaru also of the obligations and conditions of the contract, and of the financial stability of the customer. In answer to Mr Justice Chapman’s inquiry as to when the responsibility of the agent was considered to attach, and whether from the moment of the introduction of the customer, Mr Burnard said he would first have to esrtablisn the obligation lying on the stcca agent, to take care; afterwards to satisfy the court that there had been a breach of that obligation, and finally deal with the question of the measure of damages. Dalgety’s, said counsel, were paid by the plaintiff, and were- certainly under an obligation to him to enter into only such typo of contract in his behalf as should be beneficial to him. At this point considerable argument took place between His Honour and plaintiff’s counsel as to the amount of obligation considered to bo binding on various classes of agents, in respect of matters of “duty” existing between themselves, the vendor, and the customer. “.MARKET DROPPED.” In this particular case, continu'd counsel, tho contract had been made on July 27th or 28th. Dalgety and Co. were aware of the position on July 30th, and the markets started to drop shortly after August tet. Mr Burnard was proceeding to address the court on those facts which had n bearing on the question o! damages, when His Honour suggested that there should bo an adjournment till to-day. Tho hearing will be resumed this