IMPORTANT FROZEN MEAT CASE.

Otago Daily Times, Issue 10589, 5 September 1896, Page 8

IMPORTANT FROZEN MEAT CASE.

NELSON BROS. v. SHAW, SAVILL, AND

ALBION COMPANY.

(From Our Own Correspondent.)

London, July 24.

On Thursday an action was heard before Mr Justice Mathews, without a jury, brought by Messrs Nelson Bros, to recover loss in respect of shipments of frozen meat alleged to have been shipped upon joint account of plaintiffs and defendants under an agreement dated July, 26, 1893. The' agreement was made between the plaintiffs, who are dealers in and exporters of frozen meat from New Zealand, and the defendants, who are "Shipowners trading between Great Britain and New Zealand. Tne agreement, after reciting that the plaintiffs were bound to load the ships of the Tyser Line with frozen mutton, and that they would have a surplus quantity to be shipped, provided that the plaintiffs should ship the whole of the surplus not exceeding 10,000 carcasses by each of defendants' steamers arriving in New Zealand; that the plaintiffs should make up a pro ferma account, charging 2i-d per lb for first-class mutton, and "S-jfd per lb for second-class mutton; that the plaintiffs should charge their account with an initial freight at the rate of fd per lb; that on the sale of each shipment in London the plaintiffs should* make up a final account, i and if upon making up the account, as compared with the pro forma account, it showed a loss, then the freight of fd per lb should be reduced to the extent of one-half of such lors; but if, on the other hand, the filial account should, as compared with the pro forma account, show a profit the freight should be increased by adding a sum equal to oue half of the said profit; that the final balance to be paid either by the plaiutiff« to defendants, or vice versa, should be paid in cash. The defendants further agreed to carry for the plaintiffs, on the' Tyser system of freight adjustment 10,000 carcases per month, should the plaintiffs purchase the same from the Gear Meat Preserving and Freezing Company, Wellington, the price to be paid for the sheep not to exceed, f.0.b., 2£d and 2^d per lb, according to quality, and the plaintiff•* undertook to use their best endeavours tb bind the Gear Company to ship the balance of their output of meat beyond the 10,000 carcases above' alluded to, and the defendants were empowered, if 'they thought it advisable, to make over to the New Zealand Shipping Compauy one-half of the carcases received from the Gear Company. It was also agreed that the plaintiff t should be at liberty to purchase at Canterbury, New Zealand, 6000 carcases, at Z_d, f.0.b., to be carried by the defendants upon the Tyser system of freight adjustment, and that they would buy at the lowest possible price 30,000 sheep per annum, freeze the same at the South Canterbury Freezing Company's works, and shipthe same to the defendants' steamers upon the Tyser system of freight adjustment, substituting in the pro forma account the cost price per lb instead of 2|d and 2£d respectively. The plaintiffs also undertook to transfer to the defendants the arrangements they had with the South Canterbury Freezing Company. The agreement was to remain in force for five years, determinable at the end ef the second or any subsequent year by either party giving three months' notice. The plaintiffs continued to ship large quantities of carcases from July 1893 to May 1895, when the agreement was put an end to by mutual agreement. During that time an arrangement had been come to that the freight should ba paid in London upon information given by defendants' agents in New Zealand. A pro forma freight note was made out and a bill drawn by the defendants upon the plaintiffs for the amount. Tbe shipments at first showed a profit, but latterly each shipment showed a loss. In accordance with the contract, account sales were furnished showing that the shipments were made on joint account. When all the losses were put together the defendants' share amounted to £15,777 7s 2d, which the plaintiffs now claimed from the defendants. The defendants contended that the shipments were in excess of thos-s provided for by the contract ; that the surplus was only to ba ascsrtainedatthe Tyser ports ; that each shipment was limited by tbe contract to 10,000 carcases ; that the shipments largely exceeded that figure, and the defendants were kept in the dark about the amount of the shipments; that in respect of the excess the shipments were at the plaintiffs' risk alone; and that the plaintiffs had shipped joints and lamb not included in the agreement. The defendants further counterclaimed for damages ou the ground that the plaintiffs had not used their best endeavours to bind tbe Gear Meat Preserving Company to ship the balance of their output by the defendants' steamers, and had represented to the defendants tbat they had a binding contract with the South Canterbury Freezing Company, whereby the plaintiffs could control that company's output, whereas, in fact, no such agreement existed.

Mr Justice Mathew, in giving judgment, eaid he failed to sea any intention to limit the operation of ths contract to the Tyser ports. The recital in the contract was to carry all the surplus meat which plaintiffs wished to Bhip. Thero was nothing to prevent the Tyser line giving up carrying, or augmenting or diminishing their ports of call. As to the excess of the shipments, looking at the agreement it was clear the plaintiffs were bciind to ship by defendants, if they chose to take it, all the moat the plaintiffs wanted to ship. The defendants had the option to limit it to 10,000 carcases, as it was for their interest to do so, as the freight under the Tyser system of freight adjustment was less than the current rate of freight. When there was no space the defendants kept the plaintiffs to their agreement; when there was space it was for the defendants' interest to have the ships filled up. The shipments were mado with the consent of defendants' agent in New Zealand. They knew that the shipments were made on the joint account of both. The defendants were not kept in the dark, as every bill of lading referred to freight payable as per agreement. Tbat showed that the agents in New Zealand were referring to tho agreement. Bills were drawn upon the plaintiffs for the amount of freight, which -showed that the defendants knew of the extent of tho shipments. ■ Whan account sales were rendered, the plaintiffs told the defendants that they were sales of shipments on joint account. The plaintiffs were entitled to ship on joint account their surplus meat. . The plaintiff's, further, oould rely upon the fact that their position was altered by what the defendants were doing. They ought to have informed the plaintiffs that they objected to the shipments, and the plaintiffs might have made some other arrangementHis judgment was for plaintiffs that tbe-con--trart applied to,-all, ttw •fhioin'-iita.^HethontiW

_-«-a-a-H_aM«M--k-a-a->-B>-ia !'ifc also applied to joints, bub7not"to- lalnb, so that what related to that part of the claim, must bo struck, cut. With regard jto tlie counter-claim, the words'in the contract were, that the plaintiffs undertook to-transfer "the arrangement." He could not find in the terms of tbe contract any warranty of the existemso of a formal, contract. The plaintiffs, therefore, were right also upon, that part of the ease. No imputation was made by the defendants upon the plaintiffs, and lw was glad to hear that when thesa differences had been adjusted there was nothing to disturb the amicable commercial arrangements between the parties. Judgment for plaintiffs en claim and counter claim for the amount to be adjusted upon the principles indicated in the judgment. Sir Edward Clarke, Q.C., and Mr E. H. Pollard appeared for the plaintiffs; Sir Walter Phillimore, Q.C., Mr Bucknill, Q.C., and'Hit F, Laingfor-the defendants. -■.