Untitled

New Zealand Times, Volume XLIX, Issue 11223, 31 May 1922, Page 2

'vorth. This point, said Mr Bumard, had been mads quite clear by D'Arcy, who said in his evidence that on Thursday, the 25th, Leary had rung him up saying he had heard from Miller, who might consider the cattle on certain stated conditions. The evidence of D'Arcy, contended counsel, was absolutely right, for there had been a steady drop in prices over that period; and the plaintiffs loss naturally resulted, said Mr Bumard, from Dalget.v's breach of duty and the difference in prices, and he maintained that the grazing was recoverable.

As to the drop in prices, counsel went on, between July 21st and October 17th the difference was L £G, and between July 28th and October ITtli it was .£3; and if a price a little less than Dalgety’s quote to Miller («£ls) were accepted, such os .£l4 10s, then the approximate drop of <£3 thus obtained would giv© the basis of the damages claimed in this connection. " A LOST CHANCE.” But, continued counsel, there was 6till the other fact to look at in the plaintiffs contentions, viz., that what the plaintiff had really lost was the chance to get rid of his cattle at a good price. Dealing also with the matter of fixing the amount of actual damage, counsel maintained it was not a necessary condition that there should be v any absolute measure of damage in each' - case. The drover had taken delivery of the cattle, said counsel, by Dalgety's instructions. His Honour: The drover did not 6eem to act as though he had taken delivery. The cattle apparently were put into a holding paddock of Dalgety's because there was no level land nearer to the town. Mr Bumard: But that was only one step in the transference of the cattle to the ship. It formed a portion of what is called "taking delivery/' His Honour: Ye«; if you can call that taking delivery. Mr Bumard: It is a recognised method. Also, not only is there an express agreement for taking delivery, but therd is also an implied agreement. His Honour: So far as I remember the question of delivery was never mentioned during the trial. Mr Skerrett, K.C.: Quite right, Tout Honour; in chambers only, and not until after the whole of the evidence had been taken.

NO "GOOD” PLEADING. NOWADAYS. Air Burnard : In the statement of claim certain things are -set out specifically instead of being made a subject of good pleading. His Honour: We don't get too much "good" pleading nowadays, and perhaps it is just as well to rely on the testimony. In arguing the question, of actual delivery, Mr Burnard then 6aid that the day for delivery had been definitely fixed, it being the day when shipping might be available. When he argued, had gone, with Dalgety's approval, to Cock and Co., that day of shipment had been arranged, for he had been sent by Dalgety's to arrange it. D'Arey, counsel contended, had looked to Dalgety's, and not to Powell for the purchase price.

WHAT ABOUT POWELL?

His Honour: But, supposing for a moment that Dalgety's were not financial (as of course they are), did not that give rise to any immediate cause of action against Powell? Mr Burnard; But, whatever plaintiff's rights against Powell might have been, they are valueless.* The only substantial redress the plaintiff had lay against Dalgety's, and he was relying upon the usual practice that when Dalgety's accepted delivery he was entitled to his payment. Under every contract of sale, counsel contended, the right to receive the price was contingent upon delivery being taken; and, assuming that there had been a breach on Dalgety's part in failing to pay because plaintiff had received a portion of th£“ price by selling to another customer, he yet had a right to sue Dalgety’s for the difference. His Honour: If he choses to 6ue Dalgety's for the price, it is on the admitted convention that he becomes liable for the price. lam not sure that plaintiff had any right to sell the cattle to anybody el6e. Up to a certain point we must give Dalgety's -credit for having assented to the sale. The curious thing about it all, however, is that this point was never raised during the trial, to the best of my recollection.

"A SOLVENT BUYEfo ” Mr Skerrett, K.C., addressing the court, said his learned friend had several times during his address used a phrase to which emphatic exception must be taken. That phrase dealt with the r ‘duty” of the agent to find a solvent buyer. It had, maintained Mr Skerrett, never been suggested to be the duty of an agent to do any such thing; and what opposing counsel no doubt had intended to suggest was that there was a duty upon the agent to make inquiry as to a buyer's solvency, and to report the result of such inquiry to the vendor. His learned friend, contended Mr Skerrett, had cited not one single case in which an agent for the sale of goods for cash on delivery owed a duty to inquire and to communicate the result of such inquiry to the vendor. Some of the cases quoted by plaintiff's counsel were, said Mr Skerrett, hardly applicable to the present matter, while several others were totally irrelevant; the cases relating to matters between landlord and tenant, for instance, continued Mr Skerrett, were in a class by themselves, the relationship between landlord and tenant being of a permanent nature. This finished the case, Hi> Honour intimating that he would reserve his decision.