"SUPREME COURT—CIVIL BUSINESS. THURSDAY, 30TH OCTOBER.

Otago Daily Times, Issue 270, 31 October 1862, Page 5

"SUPREME COURT—CIVIL BUSINESS. THURSDAY, 30TH OCTOBER.

(Before TTis Honor, Mr Justice■Gresson.) Mr Justice Grtsson took liis seat st tea o'clock. TUB GItEAT DISPUTE AS TO A SA X OF SIX HEP TuSCnEKAKER AND ANOTHER V. M'LBAN.~This ca%, which has on-three previous occasions occupied the Court, came on for trial a second lime, on an order for a now hearing, on the ground that at the former hearing the Judge did not sufficiently direct the jury. Mr Gillies and Mr Cook appeared for the plaintiffs; and Mr Howorth (with whom was Mr Barton) for the defendant. < The action, it may be remembered, is in assuthp»it, to recover damages (set down at L5,0G0), for the nun-delivery of 2,000 ewes, -which it is alleged the defendant had undertaken to deliver to the plaintiff, on an assignment from Mr James M'Andrew, who at the time was Superintendent of Otago. B'fore the jury was called into the box, there was a legal argrumr'Tit for three quarters of an hour, which r. suited in the addition of another to the long list of previously Settled issues. The new i-sue is, in effect, whether the' defendant, either actually or constructively, pave possession of the sheep to the plaintiffs and thereby fortified the lien upon them, which he claim-id as Cor payment by M'AndiewThe declaration is a most elaboratt one, and the pleadings, in substance, deny all the material allegations nude by the plaintiffs. We propose to notice thtmonlyto far as maybe necessary in connection with arguments of counsel, anil in the summing up of His Honor, the Jud^e. MrCooke (.pened the pleadings, and staled the fjlnintifFs' ca*2, of which the following is only an ourine : In September, J859, M'Andrew carried on biifii-iess as a merchant, under the firm of James M'Andrew and Co. He was agent tor Mr Mills, and as such sold to the plaintiffs, Wm. Henry Te-chemaker and Alfred Chetham Strode, a run in the Upper Clutha district, and '2,000 ewes, to bo delivered in January, ISCO, at the rate of II 17s 6d per In ad. The time of delivery was a rtorwa'd:s postponed to March, 18C, and M'Andrew th<-n gave to the plain! iffs a delivery order upon the defendant, a run-holder at Morven station, for Hie ewes. When it was presented, the defendant was from home; but his brother, Hcberfc M'Lean, declined to deliver, statins? that he had instruction;-! f om the defendant to do so. His conversation showed that, he was 'aware of the position of M'Andrew monetarily ; but he did not say a syllable about the sheep not having been paid for. The plaintiffs met the bills given for the bulk of the L 3,750, as agreed with M'Andrew; and M'Andrew told them 'chat there was some mistake in the refusal to deliver, which would be set right, as soon as the defendant returned. The defendant did return on the Ist May. Then M'Andrew got from him, and delivered to the plaintiffs, an undertaking to deliver in the following November to M-Andrew's oxder, the undertaking being- endorsed to the plaiutiffs by M'Andrew. Conversation between the defendant and Teschemaker led to a proposal that delivery should ba, Anther postponed to January, 1801, Ilie defendant allowing 2s 6d. per ewe for wool: and Teschemaker .'(greed to the terms as to wool money, reserving the option as to time of delivery, as might be most convenient for himself and partner. A memorandum of the toinia was drawn by Teschemaker. signed by the defendant, and attached to the cndorso'l undertaking. Still nothing was said about non-payment by M'Andrew, or of a lion on the part of the dollmdant; but when the undertaking was presented in January, IHol, the defendant refused to deliver and .set up the litii. TJje,-;e were the short facts' of the case uj-on whi-.h action was bro.uglit. Mr Cook proceeded to vr r v> : that the case did not come within the provisions of the Statute of Fraud, that where a bargain was made for gooH.s beyond the value of LiO, something must be paid to bind the bargain, a part payment, must take place, and a written instrument lie prcpaTel ai.d signed. He contended that, even ut o;i the wool money memorandum, the defendant could be sued, as agent for the plaintiffs. Upon this part of his argument Mr Cook quoted Whitc.liousti v Croiis (12, Eric), Hurry v Mangles (1, CampheH,4f>i). lint rum, y A ■»rfcrso?i(2,Campbell), and " Addison on Contract " (254). If the jury found that in law and common honesty the defendant actually or constructively parted with possession to the plaintiffs, Ihe alleged lien was gone. There were many cat-es on this point; but the strongest of all was Giltctt v. //■/// (2 Cr. and M.) in which Mr Justice Vaugliai', Baron Uailoy, and Lord Lyndhurst gave judgement,. In that ca.s«-, A contracted to sell to B 20 sacks of flour, and gave an order on C, his wharfinger, requesting him to deliver. v hen the order was presented, C'wiid that he could only Fpare five sacks, which hf supplied, and the order was filed in the ordinary way ; but when the 15 sacks were applied for, C refused to supply, saying (hat he had not so many belonging1 to A. Baron Bailey laid it down, on the finding of the Jury that the order had been aeenptfd, that by that acceptance, C admitted that he had 20 sacks, which he uould appropriate for B, and that, be had no right to relief afterwards, on the ground that he had not so many .sacks in his chaise. In the present action, the defendant by accepting the order, anil signing-the wool memorandum, had entirely misled the plaintiff, and he had now no right to.say that he was not bound to deliver or to compensate. Mr Cook quoted other cases, including Dixon v Bovill (2, Jurist, \)'6i), Goddx v Rose (26, Law Times, 240), Ilmccs v Wahon (2, V,. and C. 540), and Miles v Gorton (2, Cr. and M. 50-1). The following evidence was given :— Wm Henry TeKfiliemaker said that in September, 1850, be entered into an agreement with M'Andrew, for the purchase of a run ami stock. Mr Iloworth objected that Uin agreement could not be imported into the case. The defendant knew nothing of the matter. Mr Barton .supported the objection, on the ground that the Jury ought not to have before them any thing whirl) the defendant had not in his mind when the ulles'.ed transaction with the plaintiff took place Mr Gillies said that what he wanted tor the plaintiffs was to give a connected history of the whole transaction—to show tuafc they did buy sheep. His Honour over-ruled the objection, but took a note of it. Examination resumed : The agreement was : - " We have this day sold to William Henry Te?chemakev, Esq.. and Alfred. Clietham Strode, Esq., on account of Mr William Mills, of Dunetlin, the depasturing license of Run, No. 340, Upper Clutha, with 2,000 ewes, from two-tooth to full-month, warranted clean, delivered thereon, after shearing, in the month of January next, at the rate of 37s 6d per head, payable as follows :—LI, 000 cash, on signingl contract; L 1,000 by their acceptance at four months from date of contract; LI,OOO by their acceptance at Six months from date of contract: L 750 by their acceptance at eight months from date of contract; it being under.-tood that each of the two latter bills shall be renewed by us for three months, if required by purcliaser-'. Should any slieep be lost on the road, the amount to be refunded to the buyers. " Per pro. Jas. M'Andrew and Co., " Fkederic Greek. " Dunedin, 28th September, 1859." He gave the bills mentioned, met them at maturity, and paid the cash. He knew that the run was not stocked at the time, and lie did not know where the sheep were to come from. When the time for delivery cam-, he applied to M'Andrew, and afterwards at. Morven Hills, the station of the defendant. He did not then present a delivery order. He got it subsequently by post, it was as follows : — " Dunedin, 12th March, 1860. " Messrs John and Allan M'Lean. g I" "Dear Sirs,—Please deliver to Messrs Teschemaker and Strode the 2000 ewes, to be driven across to their run. Any expense incurred by your people, in assisting to drive the sheep across the river, will "be defrayed by us. " Yours truly, "James At' Andrew and Co." It xvvs in March, 1860, that he went to Morven Hills. Mr Strode was with him, and two men followed. They found Robert M'Lenu, the defendant's brother, in charge of the station, lie (the witness) stated his errand, but Robert At' Lean said he could not deliver the sheep. Mr Strode asked whether it was because the delivery order was not presented, and Robert M'Lean said it was not; that he knew who they wore, and what they wanted. Mr Barton objected that thare was no proof of agency or authority on the part of Robert M'Lean. Mr Gillies >aid that Robert M 'Lean was the ostensible agent, and tbnt it was for the defendant to show that he had no authority, or only a limited one, which had been exceeded. The objection was over-ruled.

Examination resumed : Robert M'Lean said that he declined solely because of instructions from his brother John (the defendant). He did not say anything about the sheep being paid for or not. He (the witness) and Mr Strode returned to Dunedin, arriving on the evening of the 11th April. Next morning, they went to M'Andrew on the subject of the steep, and there was a conversation between them. " ■ ■ ■ Mr Howorth objected to evidence as to this conversation. . • ! His Honor thougLt that fact 3 alone could be referred to. Examination resumed: He did not receive any documents from M'Andrew, nor were any shown to him. The defendant arrived in Dunedin on the morning of the 30th April. Between the 12th and the 30th, he (the witness) frequently met M?Andrew. The subject of the meetings was the non-delivery of the sheep, M*Andrew offered to give bills for the due delivery of the sheep, which he (the witness) refused to take without collateral security. The nego-

.tiations were* not concluded when the defendant arrived. The day after that arrival, he (the witness) saw M*Andrew, but got nothing from him ; and on thenftxfeday (2nd May), M'Andrew handed him a document as follows :— " Dunedin, 1-fc May, 18G0. "J hereby undertake to deliver to the order of Jame3 M'Andrew, in June next, on my run, the Morven Hil is Station, province of Otago, 2,450 ewes, from t.vo to full moutb, free from disc s~. » "John M'Lean." There was also, on the back, the following endorsement :— " Please delrv-r the same to Messrs. Teschemaker , and Strode, or their order. j " James M'Andxew." IHe went with M*Andrew, and they met the defeni dant near the Government buildings. M'Andrew, !in the defendant's hearing, explained the reason of I the 450 ewes being added to the 2,000 in the original j delivery order that the defendant preferred givingat the rate of one old ewe for two young lambs as the yearly increase. Tiie defendant made no objection to ! this; he (the witne-s) held the document in 'lib hand, and it was referred to during the onvers-iMon. Almost immediately after they met, the defendant said. " You don't suppose, Mr Teschemaker, that I should like to have sheep-delivered when I was absent from the station ]" The defendant did not. up to January, I>-61, allege any other re uon fir the non-d= livery of the sheop. Soon after they met, M'An-'rew left, saying, "I leave you gent'emen to talk the matter over." The defendant said, "It will be more convenient for me to deliver in January than i i November;" and he replied, " That might suit us, also, although 1 "should like to make the'arrangement optional on our part." He asked, i-i the event of ta'dnar' delivery in January, Avhat the defendant wou d allow for wool-money; and the defendant replied he &v;) • posed 2s 6d each was the usual thine—that "that was the sum agreed* to by M'And:ew himself ou the former arrangement. He (the witness) said he could not decide when he would, tike delivery until he had seen Mr Strode. Bheep delivered in November were generally umhom : they would niver, lie believe 1, be delivered shorn in that month, without spe ial agreement. In January, th;y would be shorn, bat there was generally in the a.reernent, the c-xprc ssion, " after shearing." The growth of wool from November t> January would not be worth 2s, 6il. ; that sum was generally taken as* the value on terms of the fleece. Subsequently, on the same day, he met the defendant ! again in Princes-street, and s.i'id to him that it would be well to n;ake a memorandum as to th<; wool arrangement, in the event of their taking delivery in January instead of November. Ths defendant said, " Very well," and they went to Sibbalu's Hotel. In the df-fendaut's presence, he (lh« witness) wrote the following :—

" (gentlemen, —Should you prefer taking delivery of the above sheep in Jannnry, 1801, instead of Novem ber, 1801, I will allow you at the rate of 2s, 6d. per head, in lieu of wool.

"John M'Lean." He passed it on to the defendant who sat beside him, and he saw the defendant sign it. Previous to writing the memorandum, he generally spoke of Mr Siode and himself being concerned that was, he generally used the plural. lie had no notice whatever Lhat there was an agreement between M'Andrew and the defendant in reference to the wool money, lv presenting tlie wool money memorandum to the defendant fur signature, he did not represent that it was not intended to create, and would, not be alleged as creating, any privity of contract between them (the plaintiffs and the defendant; nor that it would not be regarded as a recognition of any right of property in the sheep. The defendant made no remark ou the word "Gentlemen," in the memorandum. He had no notice from the defendant or any one else, up to January, 1801, that the 2s Gd a head was to be in reduction of the price of the ewes. He was quite certain that the wool n einoraudum was written and .signed at Siubald's Hotel; he remembered that they sat near the door, and that the servant was about laying the cloth for diut.er. He was perfectly certain that the defendant did not say, " I don't make this allowance to you at all; I make it to M'Andrew and Co. when they pay me for the sheep. I know nothing at all of you in the transaction." He did not reply to the defendant, " We clearly understand that the object of this is to know what we are to get from M'Andrew, and that whatever you allow him he pays us." The defendant did not say, until January, 1861, "You know the reason why the sheep were not delivered to you ; " nor did he up to that time reply, "Oh ! yes, we suspected it. ' He was quite positive as to till the facts, localities, and conversations to which he had deposed. In January, 1861, he applied for the delivery of the sheep, and the defendant refused. He met the defendant near Oamaru, and told him he was ?o:ng to send for the sheep in a day or two; and the defendant said, " You can have them if you'll pay for them." He saW, "We have already paid for them ;" and the defendant replied, " Payment is one of the conditions of delivery." He rejoined that there were no conditions in the undertaking-, and repeated the words of it. He returned to Otepopo, and got the undertaking from the men who had been directed to fetch the sheep; and he was back in Oamaru before 12 o'clock next day. The defendant had left, although he had stated that he certainly should not leave until after one. During the conversation, the defendant said, "I've not been paid for the sheep by M'Andrew ;" that was in connection with the statement that cash on delivery was one of the terms of the undertaking. He (the witness) replied that he thought that posbable. They (the plaintiffs) had not received a farthing of what they paid for the sheep. If the 2,450 ewes had been delivered in January, 1801, they would have lambed between March and September, and again during the same period this year. Ewes with forty-five per cent, of lambs at foot, would now be worth from 30s to 40.5; ewe and wether mixed yearlings were woith about 17s.

By Mr Howorth : He believed that lie did at the previous trial state that the conversation about old sheep being- given instead of lambs took place in the presence of the defendant. It did take place before him, as well as with M'Andrew. When M 'Andrew gave him the undertaking, lie said, "I suppose that will satisfy you; I told you it would be all right when M'Lean arrived." Previously as he held the delivery order on the defendant, and the sheep had not been delivered, M'Andrew said. that there must be mistake; and he (the witness) therefore expected some document or the return of the money, as soon as the defendant arrived. He expected satisfaction in money or sheep ; he had not concluded which. When he received the undertaking he looked at the endosement and said, " Yes, it seems all right.' He looked to the defendant entirely, from that moment. He had never previously asked M'Andrew to return the money; but he believed that M'Andiew was at that time in a position to have repaid it, because he heard of his having paid L 5,000 or L 6,000 within a month after. He refused to take M'Andrew's bills for the delivery without having collateral security, because the delivery had been refused; M'Andrew said that he would give such security. He never | asked M'Andrew whether he had paid the defendant; it was not his duty to ask such a question. He certainly thought, on receipt of the undertaking, that the defendant would bu bound to deliver the sheep. Mr. Gillies had been employe Ito examine as \o the validity of the securities offered by Mr M'Andrew; and to that extent they were acting under legal advice in accepting the undertaking. He gave no c<m s-ideration to M 'Andrew for the undertaking, beyond meeting the bills previously given, the only unpaid bill at the time of handing over the undertaking bein^ one for £750. They were all paid into the Union Bank aud duly met there according to his in strucbions. He did not recollect that before the defendant signed the wool agreement, he showed to the defendant the endorsement on the undertaking. He believed that in May, JVJ 'Andrew was not carrying on business as an agent, under the firm of M'Andrew and Co. It was true that the deiivery note of March was so signed, but lie believed that Mr Reynolds's leaving the firm had been gazetted before May. Although the delivery nofe was signed with the '* Co," and the sheep were not delivered, he did not enquire of any one whether Mr .Reynolds was still a member of the firm. The letter to the defendant produced, dated 12th January, 1861, was written at his own station. In that letter he stated fciiat the defendant appeared ignorant of the nature of the undertaking/The defendant had said that the terms were cash on delivery. The copy delivery' note produced, and bearing the names of the defendant and M'Andrew, contained the words, "terms cash on delivery, 27s Gd each." He should say that those words were in the handwriting of M'Andrew ; whose 'Svriting the other portions were lie did pot at all know. t He had not sold to any one his interest in the subjectmatter of this action. He knew that Mr Strode had sold his interest; at least he had Mr Strode's word for it. He did nob, at the defendant's station, say that this was nothing more than M'Andrew had done to other parties; he had no suspicion of M'Andrew at that time.

I He-examined: The original undertaking and the copy seemed to have been written at the same time and with the same pen. In the copy the words "Terms cash on delivery, 27s 6d each,"ran down upon the defendant's signature, which in the original was quite clear of the writing in the body of the document. "With regard to the copy of the undertaking, he meant that the body of the document was, as he believed, in M'Andrew's writing. He could hot.say whose writing the words as to the.terms being cash, really was. Alfred Chethara Strode said, that at the time of the agreement, he and Tesehemaker did not know where the sheep were. He/went to Morven in March, 1860, with Teschemaker, by M'Andrew'3 directions.

They saw Robert M'Lean, and applied for the delivery of the sheep, but he said that he could not deMVe-y as he had instructions fr^ro his brother (the defendant) not to do so. They return-.; ito Dtmediii 0./ the lith April, and next day told M<Andrew that delivery of the sheep had been refused. He sa;d tiiat there must ba snine mistake, owing to t^e absence of the defendant. He (the witness) saw the defendant in the street on the 2nd May. After some conversation, t'le defendaab said that he had seen Tescbemaker, ard signed about tta wool-money. He did not speak with the defendant upon the matter subsequently. Mr Howorth was proceeding to cross examine the witness as to whether he had assigned his interest in the subject-matter of the action, bat Mr Giilies obected.

Mr. Howorth said that the witness mirht have acted fairly and properly ; but if it should turn "out that he had sold his interest for a small sum, it would be evidence for the jury that he had alow estimite as to his right of action. The Jud»e declined to allow the examination. lie-examine.] : Neither .the defendant nor his brother ever told him (the witness) that the defendant had not been paid for the sheep. Wm. Fenwick said that two to full-mouth ewes were in January, 1831, worth 30s each; 100 such ewes with 45 per cent, of lambs, would now be worth 42s each. Ewes and wethers of last year's lambing, with full fleece, would average £i 7s 6d each. Fortyfive per cent ;n rease and 2s (id wool money, would bs a very fair rate for sheep put on terras ; a flock would return both, clea? of all expenses, if the management was ordinarily good, and the season not very bad.

By Mr Howorth : If a sheepowner had to select 2,000 two-toofh to full-mouth ewe 3 out of a flock of 10,000, he would have an opportunity of "culling or picking out the worst. If tha bargain, was ca-h down, 30s would be a high estimate of the price in January, 1861, but riot if time was to be granted. He knew that " culls" were sold for 30.j about that time. Ordinary sa'es generally consisted greatly of " culls," for very few owners sold their bast sheep unless it Was clearly specified. It would be open to any one, under this delivery order, to select " culls, * for that term ouiy meant sheep with wool a shade coarser and darker than the run of the flock.

Win. Logic, principal sheep inspector for the Government, said that two-tooth to full-mouthed ewes were worth 30.* in January, 1861. With 45 percent of lambs, they would now be worth 455. Ewe and weather yearlings were worth 25?. By Mr Howorth : He had seen little other than " culls" sold.

The Court rose at twenty minutes after six o'clock, the case for the plaintiffs not b?ing concluded.