SUPREME COURT.

Otago Daily Times, Issue 11402, 20 April 1899, Page 2

SUPREME COURT.

CIVIL SITTINGS.

"Wktinrshay, Anni. 19. {ftctora liis Honor, Mr Justice I'ennefnlhor.) M'l'hoo v. Wright, Stepheuson, and Co.— Claim £370 4s, on a contract for the sale of oats.

-Mr \V. C. Mnctiregor appeared for tlie phuntilf, .loin, MTbeo (of UnlTonr), farmer, and Mr Hosking (with him Mr Solomon) tor Uio defendants, Wright, Slcphenson, an-I Co. (of Duiiedin). This easo was partly heard in December last mid its hearing resumed on the 13th iiißt., since when it lias occupied the court continuously. William Henry Norton, a Brain expert, was re-called in give evidence respecting a. full examination of Uio outs made subsequently to Ms previous examination. Witness deponed that ho had examined all the sacks of oats and had found 27 sacks up to A grade, 51 Kae!;s lo B grade, 440 sacks to C grade, 193 sacks to E grade, and 109 inferior. Taking the lot together limy were worth 3d per bushel has than if they had been all up to A grade. Witness would not have attempted to grade them in the cellar for the court, but would have done so for. ordinary purposes. All Uio sacks hud been brought up liy the lift, and that enabled the work to be done more cxpeditioiiKly. Oats were now fully 6d per bushel lower than on December 14. % His Honor: Then I regret all the more'that my Biiggeotion was not taken, that llicso oats should 1)0 Hold in December, and the money ear-marked. Mr Husking: We were willing to do so, Mr AlaeOrcgor: Were you? air Hosking; Yes. JUr.ainetJregor: That is an absolutely unfair .•■suggestion. Certain negotiations' took place, and my friend is giving an unfair account of it. Do you wish mo to give my account? His Honor: I do not wish to go into that matter at all. I thought it my duly to make the suggestion, anil I asked if it*had been carried out. Ft was not, and I express my regret that it was not. Mr Hoskiu B , in addressing llio court, said he proposed to aim up the defendant's caso and to advance such considerations as it was submitted would be sufficient to determine his Honor's decision in favour of the defendant. The questions of fact were these— (1) By what samples was the sale effected, and (2) did the bulk correspond with the sample. The learned counsel submitted that the evidence shows that the sale was effected by the samples tlio defendants produced " D.a." and "D.b.," while the plaintiff contended that tlie sale was effected by the samples he produced, "1.a." and "P.b." But, even assigning the plaintiff's version to lie correct, t!ie caso for defendants might be put in this way, that taking either set of samples the evidence showed that the bulk did not correspond with either of them. The suggestion that had been made for the plaintiff, that the rejection took place in consequence of a fall in price, had been, counsel submitted, absolutely disposed of by the evidence, and if that.was so then one element -which frequently had to be considered in eases where the rejection of gonda look place was not present in this case. Everyone knew that where there had been a fall in price a rejection was looked upon with suspicion, as having boen made solely to escape from a bad bargain. The evidence in this case, it was submitted, entirely disposed of any' suggestion that the rejection was in consequence of a fall in priced The price lists put in showed that (lie prices were maintained for at' any rate ton days or a fortnight after the rejection took place. Then there was this further element that Wright, Slephenson, and Co. had sold at an advanced price and a profit to themselves!, a smaller lot of oats which they intended to supply out of the bulk from M'Pliee. There was, too, the fact that Mr Fotheringham (the purchaser from the defendant was himself annoyed in consequence of lpving to reject them; and as showing there was good faith on the part of Mr Fotheringbam in his re-, jection, there was the fact that when the first two trucks came forward, he, reported the oat« were not equal to sample. Mr MacGregor said he thought it might save time if he said there was no suggestion at all of bad'faith oh the part of Mr Fotheringham in his rejection of the pats.1 Mr Hocking remarked that ho. had then to argue from the point-of view of Wright, Stephonson, and Co. Mr Fothoringham's position was that he had already an order for the oats which he was purchasing, and so they could understand that ho was annoyeel If then it was admitted that there was no bad faith whatever on Mr Fothoringham's part, it was impossible to conceive how bad 'faith could he suggested on the part of AVright, Stephenson, and Co., seeing that the'defendants held for Mr Fotheringham, and if tho bargain were not sustained they would lose their original profit and commission, besides having no end of trouble and annoyance; It was, therefore, indubitably established lliat there wa-! no bad ' faith in this caso on account of a fall in price or for any other reason; but that, on the "contrary, the interests of all tho parties concerned in the rejection wore entirely the other way. At all ovonts it was admitted that the sample produced by the 'plaintiff. " P.a,," agreed substantially with the sample " D.a.," produced by tho defendant. That itj was submitted was a clearly preponderating matter of evidence, and thoro was also this, it was submitted that both were sworn to by all the experts as " A " grade. Even the evidence led on the part of the plaintiff was very much to that effect. Mr Mum'Q, the expert called by the plaintiff, had saidthat these samples were very much alike, and the evidence ni th«. plaintiff was thatwhon he went to Wright, Stophenson, and Cos. office at (*ore. in order to bft shown tho

samples ho only repudiated one of them as

not being his, that one being sample "D.b." It might,.therefore, be taken as admitted on the evidence, that " D.a." and " P.a." samples produced by the plaintiff and tlie defendants respectively substantially agreed. There was no dispute that both these samples belonged to the " A " grade; that being so even on the plaintiffs own evidence. The main dispute would, therefore, turn upon the question of whether the plaintiff sold by tlie defendant's

" A.b." or by " P.b.," the number two sampla which M'Pliee produced and said lie sold by. Learned counsel then proceeded to deal with the evidence and pointed out tliat while Mr MThee now said there was a differoneo between his sample?, a difference so great that, any person acquainted with oala would see it, and that in his own opinion represented !U1 per bushel; the experts for 'the defendants at Gore, had stated that they were the same quality, had offered one prico for them all, and (hat other dealers in Gore had all treated the samples as similar, offering the same price, and none offering to deal with (ho samples teparntely. This was conlem- | porar.eoiß evidence, and the fruet of an allI lxiuid price being offered by several firms I was very strontrly corroborative of the defeuI dant's contention that the two samples the I plniiitifr had sold upon were practically the j ! same. The samples had boen mixed at Gore, j ■ and that was unfortunate as iL turned out, ! ! because it hat! enabled the other side to. make i j suggestions whioh wnro not alt'ocjcihev plefil sani /or the (iofpiulants to hear,' !»;i which j j were wholly ■mwnrraued, because what sinifi--1 lor object could there possilily have been in :iuilin<; (he two samples together. The, de'.sr.dan'ts wanted to soil again, jinti if there had been such distinction between the samples r- there was between the samples now prorhieed by the plaintiff, (he result of mixingthem would liuvd been, according to the plaintiff's own witness, to prejudice tin- iof. This contemporaneous fact of mixing ii-o samples because they were similar, together with the evidence of the witnesses concerning it, was not to bs overcome by the more oath that the two samples now produced by the plaintiff i were the finme as the samples then produced. The evidence of the witness who had examined the oats for Mr Fotheringhßrn was that lie I found only a few sacks that came up to'any j "A" grade, but that the bulk wan very :rre- j Rular from "B" down to " C :l in the first j trucks, and that iv the second trucks more | than half would not come up to " C." This^J witness saw the bulk at the lime it arrived in ! Dunedin, and unless it could be suggested that 110 had committed most audacious perjury by swearing that more than half of tlie oats did not come up to the " B " grade, his evidence must be received as credible; and there was Ino countervailing testimony. Counsel refer- j I red at some length to (he evidence of mime- j rous witnesses, and invited the court to take the view that Mr M'Phee's evidence was entirely mistaken, and that credibility must be Riven to the evidence of the defendants, cor- j roboratcd as it was by (he various circum- j stances referred to. The learned counsel next dealt witli questions of fact and law—viz., whether there was a proper rejection, llisi-t was assuming the bulk did not correspond to the sample—and that covered the subordinate questions whether .the rejection was at tho proper place, in due time, and made otherwise in a sufficient way. Tho address for the defendants occupied over three and a-half hours in delivery, being concluded at 3 p.m. Mr W. C. MacGregor, in addressing the court for the plaintiff, submitted that tho plaintiff in this case was entitled to judgment, both on the claim and the counter-claim'; The action was one that had taken a very long time to try, but in tiie result the learned counsel believed it would be found that the points at issue were really very small. The questions he proposed lo submit to his Honor were two 111 number: (1) Had the defendants the right to refuse to accept the oats, and (2) assuming that they had tho right, did they intimate to the plaintiff that they refused lo'siccept them. These were, as nearly as possible, the words used In the " Sale of Goods Act, 1805," which, ho submitted, governed this case. The sections vela ting lo this matter were sections 36, 37, and 38, which, strangely enough, had not been referred to by his learned friend.

Mr llosking naid ho had stated that this was a special contract, so that those provisions did not apply. Mr MucGragor said this act simply embodied and codified the existing lav/ in conformity with tin; cases. As was very cloudy slated in -Blackburn on "Contract for Sale" (page 503), where the learned author said, " U the vendee has the right lo refuse to accept tho goods, as where there is some condition

precedent not complied with, or the ordinary case of goods delivered on rale or return,' he

must do so in a reasonable time and uuequivu- • eably, and lio must to turn them in tho-sn.mo . condition as lhaj; in which he purchased them. Jl', ii-rici- a reasonable trial, lie finds llio goods not up to s;uii|)!e, ho may tell tlio vcmlor so, ' who mhihL Ink.) the [roods away, and they remain til tho vendor's rink until ho does so." ! Now. in the present wise, primst facie at all 1 events, the plaintiff had proved that ho deI liverod to tlic defendants the goods, for wliich : .ho claimed to recover the price, and tho tle--1 fondants said he was not entitled to tho price, ' because llio defendants had rejected the Roods ' ! sin not being according to sample. Olourly I enough the burden of proof as to that defence 1 j ■inu-t lio upon tho defendant. He did not ! know whether it. was necessary .to cite. an. authority on the point, but would refer his Honor to Abbot's "Trial Evidence (page 336), where, in dealing with actions for tho price of goods, tho author says, " If the defondant sets up warranty or false representation, either directly, or by denying there was a purchase except on terms specified in the answer, tho burden is upon him to prove that defence." So that they started with tho legal position that tho burden of proof was on tho defendant to prove that tho oats in this case were not according to warranty. IJow did tho defendants attempt to discharge that burdeny Thv.y first attempted lo contradict their own letters, which admitted that they had confused the best evidence—namely, tho original sale samples got from M'Phee, by mixing them together. Then the defendants own letters admitted complianco with tho warranty, and finally they produced a.'great mass of alleged evidence, which was of little or no value, since it referred to a period lons after I tho time, for delivery had expired. It had j been stated by the .learned counsel for the dej fence, and ho (Mr MacGrcgor) concurred that whore there was a, conHiet of ■testimony as to what had taken place'some time before,and it eamo to be a question of oath against' oath, then tho side which coincides more nearly to the corroborative Bvidenca made at the time, ought to .prevail. Accepting .that, he asserted that the correspondence before any contest had arisen— before the minds of Hie parties were directed to the fact that there must bo a law suit—supported, MTheeV case and absolutely contradicted the defendants' ease ; and that was so even with defendant's own correspondence. Learned counsel submitted, in tho first place, that the letters written before action showed conclusively that tho place ot delivery' in the contemplation of tho parties was not, as had been suggested by learned counsel on the other side, any Tail way station in Ota go, Southland, or Canterbury, wliich might "be selected by the defendants, but was the Kingston crossing, of which they had hoard so iinueh. Ho. referred to the letter written by 'Wright, Stephenspn, and Co., Invercargill, of 19th May, and addressed to the head office at Dnnedin. In that letter it was stated, " They are. being delivered at tho Kingston crossing ; so they will have to be consigned from there." This was a, contemporaneous declaration by . the defendant's agent that, in his opinion, the' oats were being delivered at the Kingston crossing. Mr Hosking remarked that there, was no evidence that the writer knew what the terms of tho contract were. ' . . Sir MacGregor repeated that that was what * tlio letter stated, and in the next place there was not the slightest*.doubt that tho letters proved, if the letters were to be believed at all, that the number 2 sample, about whioh they had -heard so much, was greatly inferior to No. 1 sample. That was the letter September 14,. signed by John Wright (one of the defendants) and said—" With regard to the two samples of -M'Phee's oats sent us, one h similar to the eale sample and the other a good deal inferior. Kindly advise us which is the correct sample." Then the correspondence also showed that in the opinion of the purchasers, Wright, Stcphenson,' and Co. (ofGore), even Mr Jfothoringham was, not justified," or was hardly .justified, in\rejecting the oats as lie did. That appeared fWi a letter, Inver- i cargill to Dunedin, dated' August 5, 1898— ." Tho transaction is rather unfortunate, inasrnuoh as the Gore office thinks there is hardly sufficient justification for rejection, and they are being worried a good deal about tho ' matter." That was contemporaneous written evidence before any action was contemplated, and it came from Mr Newman, apparently founded upon information from,, Mr Hay, to the effect that the C!oro office thought there was hardly sufficient justification for rejection. Tho letters did not .show that the defendants rejected the oats. After: going carefully I through ■ the correspondence it Was impos- I sible to find a singleiottcr hvwhieh any ftate- I: mont was made to ",tho effect that Wright," Sloph'enson, and Co', rejected the oats. There was no doubt an intimation that their buyer (Mr Fotlieriiigliam)'hadl'reJßetod the oate, but that was entirely. beside the questions, for ' that was an independent sale made on quite a J different sample. It-was quite certain, fur- . thor, that Wright, Slephenson, and Go's, lot- : tera did not show that M'Pheo had been .

notified of tho rejection of the oats. His learned friend had ■■ confused two things— t|or« were two separate acts lo be considered, first the rejection, and. secondly, the notice of rejection, and both things were essential. It might bo that Wright, Staphensou, and Co. had rejected the oats, had gone through the mental and physical act of rejection, but they had never communicated' the fact vof such rejection to the plaintiff. Then, further, tho defendants dealt with the oats after rejection as their own. Or: this point the sale nolo was material, and it said, " Should -the bulk or any portion thereof on examination at destination bo found to be inferior .to the sample by which it was. sold, tho purchaser to have the right io reject such as is of infrrior quality, or the whole parcel, and' store the same at tho risk and expense of tho seller." Counsel, for the defendants had aaid they had the right to store the oats at the risk and expense of the seller, but he (Mr MnoGreg-or) said "No; they must,..first reject," and of that there was not- the slightest evidence. The defendants, after they claimed to know Hie oats were not up to sample, took them into store as if they were1 complying with the contract, and they wroto to "the defendant recognising tho contract and treating it- as a.n existing contract, whereas they noi<; said it had been voided by a broach of conditions by the plaintiff. These were the leading facts established by the correspondence which' his learned friend had referred to as settling the question as to which side was the more credible. He would now come to the law lieariiiir upon the several points of the ease. The .'oarnetl counsel then dealt at length with the law and evidence bearing upon the various critical aspects of the case as to place of delivery, alleged rejection and notice thereof, and what had taken place regarding the bulk and samples. 1

Ar 5.311 p.m., counsel not having completed his argument and comments upon the evidences the case wan adjourned until 10 o'clock this (Thursday) morning. Ti:o court then rose.