SUPREME COURT.

Otago Daily Times, Issue 11397, 14 April 1899, Page 2

SUPREME COURT.

CIVIL SITTINGS. Thursday, Apbll 13.

(Before His Honor .Mr ■ Justice Pennefather.) Jt'PIIKB V. WItIGIIT, STKrHEMJjOJJ, AND CO. Claim £370 4s 6d,on .a contract for the talo of.certain oats. Mr W. C. ■ MaoGregoi appeared for the plaintiff, John.MThee; of Balfour, farmer; and Mr Hosking (with him Mv Solomon) for tho defendants, Wright, Stophenson, and Co., of Dunedin. This case was partly heard in December last, and was then adjourned to'tho iiext civil sittings of the court.

Mr W. C. i AfacGregor suggested that, as if was so long .the die had been before tho court he should be allowed briefly to sum- up the plaintiff's case. Mr Hosking said he intended, to state the facts, and objected to the usual order being departed'from. His Honor said that, except by consent, the usual.ordfir must be followed. Mr Hosking then opened the case for the defence, and said that, as his Honor would recollect, the case, which had been partly heard, was iv action for. the price of oats alleged to have been sold and delivered. His Honor said he would like to know, independently of the facts of the case, if the pats had been sold since the trial. Mr Hosking said no; they wero still lying in the store. His'Honor'thought that seemed very foolish, for it had been said the place was unsuitable for them. ! Mr Hosking remarked that that was only the opinion of one witness. The defendants wero confident tho place was suitable; it was a. place ordinarily used for the purpose. Tho main point was, then, whether. oats were not going down in price; and, as a matter of facf, thoy had receded in price materially, so that whichever side lost in this ease would now lose more by reason of this depreciation.

His Honor assented that that must be so, and said that when the matter was -last before the court he had given a very strong indication of his opinion that tho oats ought to bo sold.

Mr Hosking then referred to the statement of. claim! and said that from this it would appear as if there had been a total delivery of 1240 saoks, that the price agreed upon was £547 os Id, and that there had been paid £176 18s 7d, and that therefore there was left tho balance now claimed. The evidence so

far, the learned counsel submitted, had shojvn that there wore distinct circumstances with reference to the 626 sacks which the defendants claimed were rejected and the 360 that had been accepted. The destination of the lots was different. What would be inferred norn the statement of claim was that there was one lump price, a payment on account, and therefore a balance left—that there was one sale, one delivery, one lump price, a payment on account, and therefore one ac- ' eeptance of the oats. What the 'defendants would submit was that there was a distinct dealing, as it were, for the 360 sacks that were accepted, and that they relied upon the terms of the sale note, not only to reject the whole, but to reject any part. The sale note was distinct that if tlie bulk, or any portion, was found inferior the purchaser would have the right to reject the inferior quality, or the whole parcel. The defence was that the oats were sold by sample, and that the 826 sacks, not being up to sample, had been properly rejected. They also set up as a defence, which went to part of the purchase price, if it were held that they had accepted the oats, that they were worth 2d per bushel less than if they had been up to sample. Tho plaintiff's contention was tlu>t he had two samples, both of which had been accepted at the same price, and that he had sent 700 sacks of the inferior and 126 sacks of the superior oats. Tho defendants' reply to that was that the samples the plaintiff had produced in coutt were not the .-amples by which the defendants had bought, which it would be shown were superior to the samples tho plaintiff had brought into court. The defendants also filed a counter-claim, on the basis that they had a right to reject, and had rejected the oats, jn which event they were entitled lo £43 2s 6d, which had been paid for the' railage of the goods to Dunedin, lo £13 Is 5d for tho. storage of the outs up to the 16th of November, 1393, to id per sack per week extra since then, and to £30 damages for breach of contract. The. two questions at issue on the evidence were, By what sample* did MThee sell? Did he sell by the wimples which ho had produced in court as No. 1 and No. 2, or did ho sell by tho samples the defendants would produce? Tho substance of the evidence for the defenco would bo that the samples No. 1 and No. 2 that they had purchased on at Gore were identically the same class of oats, and might ba substituted one for the other. A witness would say that that fact had been remarked to the plaintiff at the time, and that he had been asked why ho had brought two samples of the same oats. Tlio reply given was that ho had taken a sample for Oiich paddock, and nothing more was thought of it, as that was quite a usual practice. The two samples were j>ul together. Evidence would he given that they were in every respect similar, and the defendants relied upon the fact that they had given an all-round price as corroborative of the view taken at the time —namely, that they were the same class of oats. The first witness called for the defence was •lames B. Moodie, grain buyer for tho defendants at (!nro, and his cross-examination wns concluded at 5.20. The court then adjourned until 10 o'clock this (Friday) morning.

Preserve your orders lor Flowering Bulbs until you sue Nimmo AND Bl.uu's Price List of New Zealand-grown Bulbs, issued in February, and forwarded post free to intending' purchasers.