MAGISTRATE'S COURT.

Otago Daily Times, Issue 10361, 16 May 1895, Page 4

MAGISTRATE'S COURT.

Wednesday, May 35. (Before Mr E. H. Carew, S.M.) The Executors of the late John Kdmondv Wm luuen (Port.Chalmers).-Claim £2 1553 d, for goods simphod.- Mr Platta appeared for the defendant, S, • *?J? a .portion o f the amouut into court F l '™-1^ dld, n<rt ap Pear and judgment was given ror the defendant. I *i! aT Vi Archibald Bag^ott (DanbackX-Claim ±•15 9s, for goods nupphed.—Judgment for the amount claimed, with coats, by default fT?, UTi lin S. rewor J' Company v. Richard O'Rourke ITfp? m" er>- Clain> £17 53, for goods supplied, Mr Thornton appeared for plaintiff*, and Mr Sim for defendant.-in this previously heard ?. a ™c> 8. V' "^P delivered judgment as follows :- „\a \ s£ ,<s lmm J folL^ s*>5 *> for beer and cigars sold and delivered. The defendant has sworn that he gave no order for beer or cigars, but there seems to be no reason to doubt that he signed the older which has been put ia evidence at tie hear°«7 c;. rhis, order was not produced at his examination at Napier, and therefore he has hart no opportunity of giving any explanation, i it there 13 any to^make; but as it stands I can place no value on his testimony. I must find the agreement to be that the plaintiffs were to ship the goods from Dnnedin consigned to their I agents, Messrs Hunter aud Provis, at Napier who were to give delivery there to the defendant. Messre Hunter and Provis were plaintiffs' agents, not defendant's agents, and the receipt of the Boods_by them was- not a delivery' to defendant. I don't think, however, that there can be any doubt that the property on arrival at Napier, passed to defendant. 'Be D jamin on bales and other authorities show that when goods are ordered from another port or fr>ma distance and no other arrangement is made, it becomes the vendor s duty to appropriate the goods to the contrac vand when that is done finally aud conclusively the property in the goods passes to the vendee, in tins case the goods were set apart in JJunertin, marked for identification, shipped to JNapier, an invoice posted to defendants, and in respect to the beer, notice cent by Messrs Hunter' ana Provis that it had arrived at Napier and was awaiting hi* instructions, and the cigars were sent by dray from Napier and tendered to defendant at ms hotel. Lad the agreement been that-defend-ant was to pay freight from Duneclin itseeriis the property would have passed to defendant in shipment, but the-agreement was . for ' delivery at •Napier, at acy rate the proDerty passed to defendant when the goods reached there. I caDnot find that the goods w>>re ever delivered to defendant. ! lhere was a tender of the cigars, but defendant refused to take delivery; and as to the beer. Messrs .Hunter and Provis were plaintiffs'agents, and their otter to deliver is not sufficient to support a claim tor goods sold and delivered. I have conaider»d the I question of amending the statement of claim. If tne order for the beer could be dealt with as a contract separate from that for the cigars I think upon the evidence the plaintiffs could recover the pnea upon a claim for goods bargained and sold, but would not be justified in dealing with the bear as a separate contract from that for the cigars. They were ordered at the same time, and, although it war, agreed that the cigars were to bs delivered early and the beer later on, the order and theacceptance of the order'caa only be taken as one entire contract. As to the cigars they were tendered to defendant; and he declined to take delivery on the ground'that he-had not ordered them. How it came about that they .were tendered at his place of business has not neen shown, and the only evidence as to place-of delivers is that plaintiffs were to send the beer to their agsnts, Messrs Hunter and Provis; but whether tha proper place for delivery of the cigars was Napier or defendant's hotel the plaintiff?, if they desired to hold defendant to his contract, were not justified in carrying the cigars' to Duuedin, and I must conclude from their conduct in doing so that they accepted defendant's refusal of the cigars as a breach of the contract, and that js necessarily of the entire contract as it would only be on that ground that plaintiffs' conduct could be justified. In that case the plaintiffs claim should be for damages for not accepting the goods: but as there has been no resale of the goods and no damage's proved they could, if an amendment be made, recover only nominal damages." After consultation between the solicitors, plaintiffs accepted'a nonsuit, without costs. • .The: Corporation of Dunedin v. the Town Clerk (Charles Wedge) and Corporation of Roslyn.— Uaim£4<), an auctioneer's fee paid by one Eden fowler to the town clerk of Roslyn and retained by the Council of- Roslyn, instead of it being paid over to the City Council.-Mr Chapman anpsared tor the Corporation of Dunedin, and Mr Haggitt tor the defence.—Mr Chapman stated that the new act dealing with auctioneers' licenses provided that a man might pay in the district where he resided, or where his usual place of business was. Having made that payment his duty ended • but the town clerk who received the sum is charged with the duty of paying it to the right quarter. In this instance Mr Bowler paid the money to Mr Wedge, town clerk of Roslyn. Mr Bowler was auctioneer for Wrisht, Stephenson, and Co., and lived in Roslyn. The City Council had asked the Roslyn Council to refund the sum. Not only had it not refunded rt, but_ it never even answered the letter. Ihe action was against the town clerk of Roslyn for having paid the money to the wrong bnrough, and also agairiet the corporate borough, because it nad_received notice that it had in its Possession"a fund which did not belong to it. Mr Bowler held auction sales in various places—most often in .Dunedin, frequently, however, in the ■' Taieri county, and pretty often in various parts of the country. If that were material, he thought it would be shown that he sold moat often in Dunedin. The place of business was not always necessarily where the auctioneer resided. The total facts he thought would show chat Mr Bowler's place of business was in Dunedin, and to Dunedin the fees should be paid.—The defence was that Mr Bowler bad no place of business, nhere he sold in Dunedin waa Messrs Wright, -Srephenson, and Co.'s place of business. The act stated that the fee was to be paid in the borough or pijice where the auctioneer had his usual place of business, but the evidence had shown that Mr Bowler very seldom sold in Duuedin but in the surrounding districts and up-country.—His Worship reserved his decision. ' "■ '