SUPREME COURT.

Otago Daily Times, Issue 66, 31 January 1862, Page 2

SUPREME COURT.

CIVIL SIDE. Thursday, Jan. 30th. (Before His Honor Mr. Justice Gkessox, and a Special Jury.) SMITH V. YOUNO & M'GLASIIAX. This was an action brought by Mr. Smith, a runholder in Tokomairiro, against Messrs. Young and M'Glashan, merchants, Dunedin, for damage sustained through the non-delivery of certain sheep, which, it was alleged, the defendants had contracted to deliver to the plaintiff. ?>lr. Gillies, who appeared for the defendants, opened the case by stating that Mr. M'Glashan, one of the defendants, had agreed to deliver certain sheep to the plaintiff, but that they had not done so, as it was afterwards mutually agreed to cancel the contract, and that even if it had not been so, the defendants were not personally liable, as they had signed the contract only as the agents for a third party, Mr. S. Clark, whom they at that time di.sclo.sed as their principal, and with whom the plaintift' had personal communication on the subject of the sheep. He then called, Edward M'Glashan who said that hewasonsof the defendants, and remembered entering into an agreement with the plaintiff about some sheep. Mr. Clark came here from Wellington, about the end of December, ISGO, and iu the same vessel Mr. Smith's partner came. They called several limes at his office about the sale of some sheep of Mr. Clark's, and on one occasion Mr. Smith accompanied them. The firm of Young and M-Giasliiin was authorised to close the transaction which had been begun between Mr. Clark and Mr. Martin the partner of the plaintiff about thesa sheep. There were verbal communications between them and Mr. Smith at a subsequent period about the purchase of the sheep. In one of these communications he informed the plaintiil that he was acting as Mr. Clark's agent. He was present at a conversation between the plaintiff and Mr. Clark about the contract. The agreement (produced) was in his handwriting- and was entered into at the conclusion of the negotiations. The agreement was as follows : Sold on account of Mr. S. Clark. 1000 owes more or les.i not under 2 tooth and not exceeding 4 tooth at the price of 2Gs. per heal delivered at Dunedin, payable by bill at 3 months, to date from time of delivery, to arrive per Victory in January, subject to approval. YoCJ.VO AXD M'GrIiASIIAN. 14th December, 1860. The sheep did not arrive by ths Victory as there was not time to ship them." He communicated with th:j plaintiff on the subject of their non-arrival, and the plaintiff said he would wait another month. They did not arrive then and he again communicated with the plaintiff, who said that he would not wait any longer, and would not rake them, as he had purcha<3.l elsewhere, on more reasonable term:;, lie afterwards -•:.'i<! I'-at he had purchased from Mr. Greer. Xo larihei- demand was made for the sheop till Sept. last, when defendant returned from Auckland. Before leaving for that place in June, he had sheep of the same description for sale, and could have furnished them if he had believid the agreement to still exist. He had found it rather difficult to dispose of these sheep at the time.

Cross-examined by Mr. Cook : ile lirst received authority from Mr. Clark to sell the sheep in December, 18G0. His firm were agents for the Coleinun steamers. Mr. Clark arrived in the early part of December, he thought about the Ist, and left in the ame mon'Ji f;ir Melbourne. Mr. Clark stayed about a fortnight in Otugo, and gave him personal instructions about the sheep that were to arrive by the Victory, lie hud not spoken to Mr. Smith about the sheep beibre receiving instructions from Mr. Clark, but he had immediately after. He could not say how soon after, but he thought that it was before Mr. Chirk had left Duuedin, that the .plaintiff nppiied to purchase the sheep, which bad been previously spoken .of between Mr. Clark and Mr. Martin, ile remembered Martin and plaintiff failing on him, but he could not say whether Chirk had left or not at the time, lie remembered Mr Smith saying that he wanted tq buy 1000 or ISOO ewes, but ho did not remember hesitating and saying that ha would communicate with Mr. Clark. He remembered entering into iigratmeut wiih pla.iiir.ifl"for sale of 1000 ewes, to be delivered in January. Plaintiff asked for an agreement in writing, but did not add " because be did not know Mr. Clark." The transaction was closed on the 14th ; but be thought lie had seen the plaintiff about it before that date. He remembered writing to Mr. Smith, informing him that the Victory hud been seen olr' the Bench, and asking him to come and make arrangements for taking delivery of the sheep. He did so because he bad agreed to give him notice of the arrival. Mi1. Smith came up to town, and be was then told the reason the sheep had not arrived, and ho agreed to wait another month. On his return from Auckland, he remembered a conversation with plaintiff and Mr. Martin, when the latter proposed to compromise the matter. Before this he had received a letter from Mr. Cook, muldnir the claim. In February, Mr. Smith had said that he would not have the sheep, but would get them elsewhere. This was a ter the Victory ar-^ rived a second time without the sheep. Plaint.'fi' said he could get them elsewhere at a more reasonable price. In November last, ewes were worth from 255. to 275. a head. The former was the usual price. Ewes landed iu February, with lambs at foot in November would be worth about 30s. The price of the wool would vary from Is. Id. to Is. 'Id., according to the way it was got up. That which'brought Is. 3d. at home was purchased here at Is. Id. The transaction ■was principally gone into by Mr. Martin, on ac^ count of himself and Mr. Smith, as they had a run between them. In .September they met Mr Clark iu his oflice, and complained of. the nondelivery. He understood from the plaintiff that it was a joint transaction between himself and Mr. Martin: When the agreement was signed, Mr. Martin had gone to Welling! on, and lie understood that Mr Smith was authorised to conclude 1 lie agreement. Mi-. Smith distinctly stated tifterwurds tiuiD he would not have the sheep, in the curly part ot March, lie had s'icep that he could have supplied the plaintiif with, but as he considered the contract abandoned lie

did not offer them to plaintiff. When plaintiff said he would, not take the .she.-]), he hail t Id him that he had others coming which hu could let him have.

Frederick Greer, examined by Mr. Gillies said, that he had shcop for sale at the beginning of last year, anil on the 4th February ho sold 1000 to Mr. Smith, at "255. each payable four munch'after delivery. They were, from two to four tooth.

Cross-examined by Mr. Cook : The wool in grease would be worth about one shilling in November.

Mr. Cook then addressed the jury, snying that both in fact and in law the defendants were principals in the transaction, and that there was no abandonment of the contract. Mr. M'Glsishan's mind seemed perfectly confused about .he whole thing and he could not remember any dates. In December, Mr. Smith called on Young and MacGlashan to purchase some ewes he had heard they had for sale. Mr. M'Glashan hesitated and said lie would communicate with Mr. Clark, who had at that time-left. Mr. Smithsaid he would not wait. Mr. M/Glashun then said he would arrange it, and tlfe plaintiff asked for an agreement iu writing, as he did not know Mr. Clark, and he could <>.ct sheep elsewhere. At the end of February, Mr. Smith saw Mr. M'Glashan and had a conversation with him, in which he distinctly stated that he still wanted the agreement curried out. IJut as the sheep did not arrive till too late for the lambing season he said that he would not take them, but would hold the defendants liable for any loss he might sustain through the non-de-livery of the sheep. The memorandum of agreement, also, proved on its face, that the defendants •were principals and not agents, and ho cited several cases to prove this He also con tended that any release from that agreement should have been in writing and he would show that it had not in fact been abandoned.

Mr. S.nifh, the plaintiff, remembered calling on the defendants about the purchase of sonic ewes. It was on the 14th December, and he then saw Mr. M'Glashan. Mr. Martin accompanied him. lie wanted to purchase 1,500 or 2.000 ewes. Mr. M'Glushau hesitate! at first, but then said he had some coming' in the Victory," and that he could only give 1,000. They then arranged the price. Mr. M'Glashan me :tioned Mi. Clark, and said that lie could get them from him in Melbourne. Witness then said he did not know Mr. Clark, ami must have the agreement in writing. Mr. MGlaslian then drew up the agreement. Witness had ucver seen Mr. Clarke at that time, and he was not in Dunedin then. Mr. M'Glashan said that he would write to him to send them down. He afterwards agreed to give an extension of the time for delivery, until February, and Mr. M'GUwhan said that the sheep should then be delivered without fail. In February, witness came to town and saw Mr. M'Glashan, who said he was very sorry the sheep had not arrived. A short tiine before this, Mr. M'Glashan met him in the street, and said "I hear you have got sheep from Mr. Grcer." He said, '' Whal has that to do with our transaction." And Mr. M'Glashan replied—" I thought yon only wanted one lot of sheep." Witness said he still waited the other sheep, and would take them when they arrived, as shccD were scarce at the time. Ife saw Mr. M'Glashan again when the Victory again arrived without the Sheep. This was about a fortnight after the above conversation. Mr. Tvl'Glash.an said ha was sorry they had not arrived, but it could not be helped, to which witness replied that that would not suit him, as he could have suited himself elsewhere. Shortly after the 16fh May he called on Mr. Young, and asked what arrangement could be come to about the broken contract. Mr. Young said that lie could not say, as he did not know anything about it himself, and that if the firm was liable they nuist suffer by it. At the time the contract was made he could have purchased other sheep on equally good terms, lie could have got 2,000 from Mr. Ctreer. After he had been disappointed by the non-arrival of the sheep in February, he could not obtain sheep on as good terms, until July, when it would not have suited him to buy, as they would be in too low condition for the winter, lie had no communication with Mr. Clark, prior to the contract buing signed. When the sheep did not arrive in January, Mr. M'Glashan told him that Mr. Clark had arrived and that he would bring them together and would give Clarke a blowing-up. Witness said that he did not recognise Mr. Clark in the matter at all. He never .staled to any member of the firm that he would not take the sheep as he could get others on as good term's. He told them that when the contract was signed he could have got sheep on the saina terms, from several parties. He never abandoned the contract, buo on the 4th February he bought 1,000 from Mr. Greer. lie told, the defendants that he would take theirs also. He estimated the loss in consequence of the nonfuiiilinent of the contract at about 700 lambs, at £1 per head, and 3000 lbs. of wool, deducting the cost of shepherding, about £30, and 3 per cent, loss on young sheep. The sueep were worth 30?. each then, so this loss would ba about £45. Then there was eight months' interest on the money. Cross-examined by Mr. Gillies : He had bought imported sheep before. He lost about half per cent, before getting them to tb.3 ran. They were delivered at the Ha.f-way Bush, si.bout 4 months after landing. The heaviest mortality among ship sheep is in the first three days after landing ; sometimes, through neglect, it is very heavy. His usual per centage of lambs was about 75 per cent. He had U2J per cent, increase on imported sheep this year. They arrived in November. Two months'old lambs would not bewnrth£l per head. He did not agree with Greer to purchase more than 1000 sheep, lie did not believe that he liad ever done so, at least he had never done so in writing. He made no verbal agreement about it. Mr. Martin introduced him to Young and M'Glashan by saying that Mr. Clark had told him he was going to send down a lot of sheep to them. Before this lie had been making arrangements with Messrs. I{. B. Martin and Co. lie was interested in three runs. One was wholly his own, one belonged to a gentlemen in Nelson and ho managed it, and in the third Mr. Martin was his partner. Ke-examined by Mr. Cook-—lie estimated his loss by lambs at ,15s. per head.

George Thompson said he wus a runholder in the North. In February 1881, ship sheep were worth 255. Sheep landed then and properly attended to would have tiieir lambs that year. The per ecmtiige would probably be about 50. In November the ewes would be worth with the lambs about thirty or thirtytwo shillings, anil the lleeee would be worth about 2s. Gd. The expenses connected with the sheep during that time would l>e about £80 or £100 ; if not dipped, the former amount would cover the expenses.

John llealy gave a similar estimate of the value of the sheep ami wool, anil t:ie expenses connected with the mauanemi'rit of th". sheep.

Croosvcxainined. by Mr. Gillies — tie hud an average of 5 lbs. of wool in his floe'i last year. Thev were imported shse;) but were r.nt merinoes. Ho did not know what breed they wire. He got Is. (3d. per lb. for the wool. The net value of the fleece was 2s. lid. He made from 80 to 100 per cent, per annum on his capital. Mr. Cook then addressed the jury, contending that Messrs. Young and M'Glaslwn were botli in law, and in fact principals iu the transaction, and also, that the plaintiff had never agreed to abandon the contract, lie cited a number of eases in support of his view of the transaction. Mr. Gillies then addressed the jury for the defendants, apologising for detaining then* when they might be so much better employ 3d iu making' 100 per cent, at sheep farming, or doing as Mr. Smith wished to do, by the damages lie asked for, make XL4-50 out of £1200 in a couple of months. He, however, would not ma ice any more remarks on the subject, as he was sure it would never comd to damages. He then went on to reply to the cases which had been cited by Mr. Cook, showing that they were not applicable to the present ease. He also said that ic was clear that the plaintiff was aware that Mr. Clark was the principal, as he said he did not know Mr. Clark, and must have a written agreement. From the evidence ho also thought that it v.-as perfectly clear that the agreement had been abandoned by the plaintiff. His Honor iu charging the jury, remarked that there would not be much difficulty in deciding ou the case as the law was clear that Young and M'Glashan were not personally liable, but acted only as agents for Mr. Clark ; and although in certain cases, an agent might be personally liable, this was not one. If Mr. M'Glashan was to be believed, the agreement was mutually abandoned in February. The legal point raised by the Counsel for the plaintiff to the effect thnt there should have been a written release, was not .t good one, as the law did not require a written abandonment of such an agreement.

Tlio jury after mi alienee of twenty minutes, returned'>i verdict for the defendants on the two (list issues. First, that Young aud M'Glushan were only

acting us u-c-nfs fo" Sninn-:! Clark ; and secondly, that lm had 'oci-u disclosed us prinuijitil at the titno t!)u agreement was signed. On the third issue, they found that the tin-reoi'ncnt had not been abandoned Qgf by liiutiiul consent ; but on thy fourth, they did not consider that the plaintiff had sustained any loss bv its non-fulfilment.

KESfDKNT MAGiSTRATIiS' CO.UBT.

January 30, 1802.

Thomas Mason, Wm. Livingstone, Thomas James, and S. G. lieavis, were severally fined 20»., or 48 hours' imprisonment, for drunkenness.

David Gibbs, for the same offence, was sentenced to 7 days in gaol.

YVm. M'fieuii was brought up, charged by Deleeiive Tuekwdl on suspicion of stealing the sum ofiia 4s. and a pocket book, from the person. of i>. Donovan. He was remanded.