SUPREME COURT—CIVIL SITTING.

Otago Witness, Issue 747, 24 March 1866, Page 6

SUPREME COURT— CIVIL SITTING.

Fbidat, Mvbch 16th. tpßefore His Honor, Mr Justice Chapman.) A DISPUTED COBTBACT. J Hoyt v. Cai-cutt. — This was an action to recover L4OO, as damages for the breach of an alleged contract to deliver the balance ©f|2ooo bushels of oats. Mr James Smith appeared for the plaintiffs, C. J. Hoyt, Henry Hoyt, and A. J. Smith, trading ss H. Hoyt and Co., snd the Hon. James Prendergast and Mr Cook lor the defendant, Thomas Calcutt. The declaration stated that the plaintiffs purchased from the defendant 2000 bushels of oats, at 3s per bushel, and that only 242 bushels had been delivered, leaving a balance of 1758 bushels undelivered, for the non- delivery of which the plaintiffs claimed L4OO, and also special damages for expenses incurred for extra cartage owing to the defendant's refusal to deliver. The defendant pleaded first, a general denial of all the material allegations contained in the declaration ; and, second, that after the alleged contract and before the alleged breach thereof, and after 242 bushels had been delivered, it was sgreed between them that the contract should be rescinded, ! and they then rescinded it accordingly. The plaintiffs joined issue on the defend- j ant's first plea, and denied the second.

Charles James Hoyt : lam a partner in the firm of Hoyt and Co., and one of the plaintiffs in this action. I made a contract the defendant on the 30th August last, in the presence of Mr Gleeson. Mr Gleeson said that Mr Calcutt had oats to Bell, and I asked him how many be had. Mr Calcutt replied that he had about 2000 bushels, and his price was 3s per bushel, to be delivered at his farm near Otepopo. I told him we would take them, and asked iim how soon he could deliver. He said, *' Within two months." I suggested that he should write up to his manager to deliver the oats to us when called for. He wrote a note, and I think Mr Gleeson took it up to the manager next morning. I heard no more about them for about two months, when about the 17th November Mr Calcutt applied to me for L2OO, on account of the oats, and said he would leave the balance until the c.ompktion of the contract. I did not pay the money, and I put him off as quietly as I could, as I expected to get the oats before I paid for them. The price of oats in the market at this time was full 6s per bushel. A few days after 1 again met the defendant, when he demanded payment for the oats, which had been delivered — some 242 bushels. I again declined, on the ground of not receiving the full quantity. On the 24th November I received the' letter now shown me from the defendant. [This letter was lead. It was dated the 23rd November, and stated that he ( Calcutt) had called at the plaintiffs office for the tenth time for a settlement of his account for oats sold and delivered. He asked for immediate payment, and, failing that, he threatened to take proceedings to recover it. The plaintiffs answer, dated the 24th November, enclosed a check for L 36 7s 6J, the price of all the oats which had been delivered, and gave the defendant notice that they required the delivery of the balance of the contract for 2000 bushels forthwith, or they would take proceedings to recover damages. The defendant's reply, dated the 25th November, acknowledged the receipt of the cheque, regretted that their arrangement had been misunderstood, stated that he had honestly concluded his part of the contract, and that he was not aware that the plaintiffs had any claim ! ■whatever upon him-3 ' By Mr Prendergast : At the making of the contract there may have been other persons in the room than the ones I have named, but I do not remember them. I may have asked the defendant to make out a sold-note, but I do not remember his replying that he would not bind himself to supply any given quantity as he did *ot know how many he had. Ido not remember the defendant saying that he •would bind himself to give me all the oats on the farm, and he would write to the manager to ascertain how many he had. He did say he would write to the manager to stop him from selling any more oats. The oats were to be delivered from time to time as we required them. When the defendant asked me for money on account I do not recollect saying that we had received no oats irom him. lam sure the sum he asked then was L2OO. He may b.ave been at the office several times, but I did not see him.

Michael Sherlock Gleeson : I recollect fce'mg present with the plaintiff Charles Hoyt and the defendant some time towards the end of last year. On the evening of the day in question I brought the parties together and told the defendant that Mr Hoyfc wanted oats. Mr Hoyt asked the defendant how many bushels he lad, and he replied about 20ro "bushels, and he was willing to take 3s per bushel. Mr Hoyt asked the defendant to give him a sale note, which he refused to do, saying that there between 1500 and 2000 bushels and he could have them

all. Mr Calcutt then wrote a note to his manager, -which, as I v?as going home on the following morning, I took with me. I remember the defendant saying that his manager had been selling the oats, but he thought there still remained between 1500 and 2000 bushels, all of which he could have.

By Mr Cook : The defendant may have said he did not know how many bushels he had, but Ido not remember it. He said he would write to his manager not to sell more oats, as they -were all sold to Mr Hoyt.

Micl»ael George Langley : I am road manager to H. Hoyt and Co. I know the defendant's farm at Moeraki. On the 21st October I went there to take delivery of i oats, and applied to the man who said he was in charge to deliver me 2000 busheb of oats. I received 242 bushels 18lbs of oats, and when I asked for the remainder he said there were no more there. I saw the defendant as I was returning, at Waikouaiti, on the evening of the same day, and said I had been at his farm to get the 2000 bushels of oats Mr Hoyt bought ; that I had only got 242 bushels. He replied, " I cannot help it," and appeared much confused. I purchase the fodder for the company's horses. On the 21st October the price of oats w&s 63 per bushel. The price had been rising since the Ist September. I tried to purchase oats in the vicinity of the defendant's farm, but could not get them. In order to replace the oats the defendant did not deliver, I purchased 500 bushels in Dun- j edin, 200 bushels at Waikouaiti, 100 bushels at Shag Valley, and the balance at j the Molyneux. We had to pay the car- J riage of these oats.

By Mr Prendergast: The oata I took from the defendant's farm went to Cane's stables, four miles on this side of the farm. The oats I bought at Waikouaiti and Dunedin went to supply the stations on the Dunstan road. The difference to us in the price of cartage from Waikouaiti was Ll per ton more than it would have been from the defendant's place at Moeraki. The 100 bushels I bought in Shag Valley were nearer their destination than they would have been at Moeraki.

Robert Wilson : I am a merchant in Dunedin, and have dealt in oats. The selling price in Dunedin on the 24th October last 4s 9d per bushel. On the 4th December I sold 500 bushels to Mr Langley at 7s per bushel. Towards the beginning of November the price was 53 per bushel, and they rose to 6s 6d by the end of the month.

By Mr Prendergast: My buying price on the 24th October was 4s 3d per bushtl.

William Craig : I am a farmer near Moeraki. I know the defendant. In November last, I thrashed oats for him ; I should ?ay about 180 bushels. They were damaged.

By Mr Cook : There was a lot of oats sold in the district iv the beginning of November, at 4s 6d per bushel. The price gradually rose until the beginning of December. In the latter part of October, I had between 700 and 800 bushels for sale.

By the Court: I had 400 bushels for sale in the beginning of November. By Mr Smith : In November, Mr Langley applied to me to purchase these 400 bushels, but I could not let him have them. Ido not think there were any more for sale then in the district.

This was the case for the plaintiffs, and the defence was as follows : —

Thomas Calcutt : I am chief clerk to the Resident Magistrate's Court, Dunedin. Some time in August last, I met Mr H. Hoy t and Mr Gleeson at the Empire Hotel, in Dunedin. Mr Gleeson said to Mr Hoyt, when he entered the room, " Charlie, here is Calcutt, who has some oats for sale." Mr Hoyt said " What's the price?" I replied "I have been selling at 3s per bushel, and if you like to take them at that price, you can do so, and take delivery from off the farm." He said, " How many have you?" and I replied, tl I should think from 1200 to 1500 bushels, but lam not sure as to the exact quantity." After some general conversation, Mr Hoyt said, "Well I will take them," and went to a desk in the room and produced pens and paper, saying " Make out a sale-not." I said " No, I shall not do that, because my man has been selling oats, and I have not heard from him lor some five or six weeks, but whatever quantity is left on the ground, or is now on the the ground, I pledge you my word you shall have." I then suggested that I would write a note to my man instructing him to sell no more oats from receipt of the letter. Mr Gleeson said " Write it at once, and I -will take it up in the morning." I wrote a note, and gave it to Mr Gleeson there. When I was leaving the hotel I said, " Well, Mr Koyt, when shall you take these oats ?" and he answered "I will have them all away in two months." This conversation took place about the middle of August. I saw Mr Hoyt again between the 17th and 20th day of October at the Empire Hotel. He was speaking to a person named Girdwood at the time, and I said " Charlie, I want LIOO cheque oa account of the oats. He re-

plied "0, we have not been after them yet," and I said " You should have had them away ; I want my money." He put me off kindly, saying that he would instruct Langley to call the firat time he was in the district. Most distinctly I did not ask him for a L2OO cheque. On the 21st October I saw L-mjiley at the Golden Fleece Hotel, Waikouaiti. He said at the teatable, " I have been after these oats, but I cannot find any." He mentioned no particular quantity. I replied "Not find any?" when he said " Well, not more than some 200 bushels ;" and he produced a memoran- 1 dum book, from which he read out some ! figures. l said "I am ve:y much surprised ; but I suppose they were sold before my j letter reached tbe farm." Personally, I; had not sold any oats from the time I spoke to Mr Hoyt in August, and I do not know of any sale having been made by any person in my ! employ. On the 23rd October I arrived at the farm, and found a quantity of oats ! which had been selected by Mr Langley, a few seed oats, about one bag and a half of damaged oats, two small stacks unthrashed, containing from 80 to 100 bushels each, which had been wetted and re-stacked for drying. I saw no other oats on the farm. When I returned to town I sent in an account in tbe beginning of November, and called at the office for payment, when I was told that the road-manager had not passed the account, and I was to call again. I called again several times, and on one occasion I was referred to Mr Langley, who was sitting in the office. I asked him if he had passed the account for the oats, when he said he had been unwell ; but would attend to it in a day or two. I called again several times, and at last the office manager told me to see Mr Hoyt, as there was something wrong in the matter. I went straight to the Empire Hotel, and met Mr Hoyt at the door. I said, " Charlie, do you want to see me?" He replied, "No;" and I told him I was informed that he did, about the oats, saying " I hive been kicked from post to pillar by your men ; do you mean to pay me?" He said, "0 yes, I suppose so ;" and I said, " I would be obliged if he would pass the account at j once, and be done with it. He replied, "I am busy now, but I will see to it on Monday." On the following Wednesday I called again at the office for my money, but was just told that the account had not been passed. I did aofc see Mr H<*yt until I wrote the letter, dated the 23rd November. On the 24th I received his answer, enclosing the cheque for L 36 7s 6d ; and on the 25th I wrote acknowledging receipt of it. By Mr Smith : I did not mention 2000 bushels to Mr Hoyt. I know nothing about the management of the iarm, or of any sales of oats having been made after August Charles Barkiss : I am manager for Mr Calcutt, at his Moeraki farm. I remember receiving a letter from him about the middle of August with respect to selling oats. I have lost it since. In consequence of that letter I stopped selling good oats. There may have then been on the farm between 200 and 300 bushels of oats thrashed out, some damaged oats unthrashed, and a few seed oats. All the good oats were taken delivery of by Mr Langley, about the 21st October. I was not at home when he called. After I received the letter Isold no good oats, but I sold the damaged oats a month before they were thrashed to persons named M'Cartnev, M'Gavin, M l Leod, and M'Kay. David Grant : lam a farm produce merchant in George- street. I was dealing in oats in October and November last. About the middle of October I bought oats at 3s 9d per bushel, deliverable in Dunedin from Taieri and Tokomairiro. On the 3rd November I paid 4s 6d per bushel, and the price gradually rose until I paid 6s on the 27th, which was the highest price. The Judge said he would amend the declaration by substituting 1500 bushels ( instead of 2000 bushels of oats, upon the evidence of Mr Gleeson. Mr Prendergast addressed the jury for the defendant, and Mr Smith for the plaintiffs. The Judge summed up. The jury retired, and after an absence of half an hour, brought in a verdict for the plaintiffs; damages, Ll5O. The Judge certified for the case, on the application of Mr Smith. 1 Monday, Mahch 19th. Daniels v. Mackie.— (Special Jury.")— The plaintiff, John Daniels, auctioneer and merchant, sought compensation from the defendant, Hugh Mac'kie, captain of the Gothenburg, steamer, for damage to tea, &c, shipped at Melbourne, to be delivered at the Dunedin wharf; and the defendant pleaded that the damage resulted from perils of navigation. Mr Barton and Mr Kenyon appeared for the plaintiff; and Mr Gillies and Mr Macassey for the defendant. The case was tried last session, when the jury, being unable to agree, were discharged by consent. The evidence was fully reported at that time. The short ease^ according to the plain-

tiff's statement was this :— He shipped teas and sugar on board the Gothenburg, at Melbourne, part being his own property, part that of Messrs Katzenstcin, for whom he was agent. The Gothenburg arrived here on the Ist January, 1865. On the 10th, Mr Mudie, of Royse, Mudie and Co., agents for the steamer, called on the plaintiff, accompanied by Mr Mumford, lighter agent. Mudie stated that some of the goods had been damaged on board the lighter Esther Ann. The plaintiff said that he had nothing to do with lighters,, as his bill of lading was for delivery on the Dunedin wharf. The bill of lading was produced ; and Mudie said, " the ship was liable, and if I would' send in my claim, the office would pay it. He said, ' Will you take delivery ?' and I aaid, ' No. 1 He then said, 'We will take delivery on account of the ship, and we must do the best we can.' " Subsequently; Mudie gave the plaintiff a sirall piece of paper, saying that that showed the result as "to the damaged teas ; adding, "If you send in your claim for that, we will pay it." Mr Barnett was sent to Royse, Mudie, and Co.'s bond, and he reported that the damaged and sound teas werejso mixed up^ that the exterjt of the damage could not be ascertained without a sorting. Mudie named Mr Reynolds, and the plaintiff named Mr S. S. Lazarus. Mudie urged a settlement speedily, a3 the accounts of the ship must be made up ; and the plaintiff replied that at that time he could only claim for the whole quantity shipped. lie made out such a claim, and took it tt> Mudie, who said, " We can't acknowledge this." The plaintiff replied, "It was not intended you should do. I have made it out at your request ; but when the teas are sorted, arid we know amounts exactly, I will send in another claim." This pro forma claim, which was for L 1385 9a, waj made on the 19th January. On the 20th February, a claim was made, strictly as to goods belonging fo the plaintiff, for L 159 17s 7d. On the 23rd, Royse, Mudie and Co. wrote denying all liability, as Mr Reynolds "and your own surveyor, Mr Lazarus, have decided that the steamer is not liable for the damage," There was further correspondence ; and on the 10th March, the plaintiff sold the sroods at auction, after advertisement. The gross proceeds of so much as belonged to the plaintiff were L 25 18s 8d ; but bond charges and commission amounted to L 9 2s 41. This left the claim of the plaintiff at L 142 19s 3d. Messrs Reynolds and Luzarus were appointed to sort the teas, so that the amount of damage might be ascertained — but not to say anything as to who was liable — not to survey in the orJinarv acceptation of the word. The plaintiff never told Reynolds that he would not send in a claim until he had ascerta'ned from Melbourne how the goods were insured — he never said, "If my goods are not insured against particular average, I cannot claim against the underwriters." lie had no occasion to j refer to Melbourne, for he had ascertained from Lazarus, the sgent here of the insurers, how the insurance stood — J. Barnett, who was present at the time, stated that what Mudie said to the plaintiff waa, " Send in your claim, and if the ship i 3 liable we will pay it." Mr Maeassay stated the case for the defence. George Newlands, seaman, who was in charge of the E-ther Ann %vhen the plaintiff's good 3 were on board, said that she started from the Port with a N.E. wind, which increased. When in the cross channel, the wind shifted to S. of K. (as nearly a3 could be told without a compass), and came in strong puffs. The mainsail was necessarily kept on, in order to get through the channel, and the vessel getting a strain, she leaked. This was discovered when opposite half-way house — after clearing the channel — and she was pumped from that time until she took the ground on arriving off the jetty, where she had to wait for the tide. The vessel was pumped before leaving the Gothenburg; and she was properly dunnaged, except for the width of one chest of tea, across. During twelve months that Newlands was oa board, there was no cJaim for damage to goods stowed in the hold of the Esther Ann ; the single claim prior to the present, during that period, being for some iron left on her deck. In his cross-examina-tion by Mr Barton, Newlands admitted that he had told one Clark, on bis way from Hokitika, that h# was to have his board paid while he was in Dunedin for this trial ; that waa not true. He did not tell Clark, "My evidence will turn the case which way I like, and whichever pays best will have it. Believe me, lam not asleep." He never said anything like it; and he did cot know how he was to be paid. The cross-exami-nation established some contradictions bebetween his present evidence and that which he gave when examined by commission at Hokitika, for the purposes of the previous case. He was also a good deal badgered, on the assumption, wrongly made, that he had said, or had not said, certain things during the present examination. He admitted that the wizenmast head of the Esther Ann was gon

so that sail could not be carried on that 'ftiast, and that this necessitated carrjing the maiusail while in the cross- channel. There were but two men on board, and three was her usual complement. — Wii- j liam Hunter Reynolds, Lloyd's surveyor, stated that Daniels, in the presence of Mudie, asked him to survey some tea hy the Gothenburg, or used words relating to a survey. His impression was that the damage to the tea was done by clean salt water, and not by bilge water. That was the result of smelling and tasting. Any water would cau^e the dye of the tea to stain the packages ; and while he was decidedly under the impression he had stated, he would not swear that ' the damage was not caused by bilge-water. The plaintiff refused to receive the certifi cates of survey until he heard from Melbourne. He told the plaintiff that he could not claim against the underwriters ; and the plaintiff replied that he did not know how the goods were insured, and he did not care to have the certificates until he had written to Melbourne on that subject. The survey was on the 24th January, and the sale was not until the 20th February ; the usual course being to sell within a week of the survey. He knew enough of the Esther Ann to say that she was a fit vessel to be used as a lighter.— S. S. Lazarus, who surveyed with Reynolds, agreed generally with that witness's evidence. He was sure that the instructions were to survey, and not to sort the tea. He asked the plaintiff, subsequently, how he was insured, and he said he was not sure. Afterwards, 15s was mentioned ; and he told the p'aintiff, that if he only paid 15s, it could be for no more than particular average. He knew, through the office which he represented, how the plaintiff was insured. — John B. Mudie, agent for the Gothenburg, had known the Esther Ann three years, and he never before had a claim for goods damaged on board her. He did (on the jetty, he believed) admit to the plaintiff that the goods were damaged, and said that they had better go into the bond and be surveyed. Reynolds and Lazarus were appointed to survey : nothing was said about sorting. He never admitted tlut the plaintiff had a cjaim against the ship ; he told the plaintiff to send in his claim, saying that it would be paid if the ship was liable. He saw the goods as they were taken out of the lighter ; aad his impression was, that the damage was caused by clean salt water. —Further evidence was given for the defendants, to show that the sale of the good? was a hurr'ed and not a fair one ; and Captain Dickie, the deputy-harbor master, stated that there were signs of weakness, or leakage, at different points of the vessel, alter the dispute as to the goods, and that, although the limber-holes •were by no means perfect, bilge water ■would still be able to flow fore- and aft.

The rebutting case for the plaintiff, included the evidence of Bellinger and Macpherson, shipwrights, who repaired the Esther Ann, in January. The object was to show that the vessel was leaky, although cross-examination showed that the leakage was slight, and not to be clearly seen ; and that she wanted limber holes, or they were at least deficient, the deficiency being a direct cause of bilge water washing up to the goods when she heeled o*ver, as well as preventing anything like proper pumping.— Strachan, a seaman, who assisted in loading from the Gothenburg, said that he did not see Newlands go below during the whole time, but he would not positively contradict Newlands on the point ; that the pump was not used while he was on board ; and that there was no dunnage (none as thick as a 6d), except just where the sugar was placed.— Joha Clark confirmed the points put to Newlands n cross-examination, as to a conversation on the voyage from Hokitika. Newlands (he said) stated, "I shall get my board and a pound a -day from the time I left Hokitika ;" and the witness replied, " I think you will do very well." Clark, in his own crossexamination, denied that he had told a man at the Provincial Hotel, Port Chalmers, " I'll give my evidence for whichever side will pay me LlO." Mr Gillies asked to be allowed to recal a witness to contradict Clark on the last point ; but the Judge refused, saying that the defendant could, on the refusal, move for a new trial, if so advised. Mr Gillies summed up for the defendant; and Mr Barton replied on the case. The Judge advised the jury, if it came to a question of the amount of damages, to take the amount of £142 19s 3d, as stated hy the plaintiff, as that which was right and proper. He did not think that it was proved that the sale was an unfair one ; and he thought that was the conclusion to ■which the jury would come. That other people made profit out of damaged goods go sold, was scarcely even presumptive evidence of the sale being an improper one. If there was no evidence but that of the plaintiff, his case was proved. He produced his bill of lading, which showed that the goods were received in good order and well- conditioned ; and by that bill of lading, the plaintiff was en-

titled to receive his goods, like conditioned, attheDnnedin wharf. A person signing such a bill of lading, contracted to deliver at the wharf. The Gothenburg's size prevented her coming up ; and, therefore, the defendant had the duty cavt upon him of seeing that the goods were transhipped into another vessel capable of safely conveying them to the jetty, storms and sea-risks apart, such vessel being properly manned and found for the purpose. The real question then, was, whether the damage | did occur from any insufficiency of the vessel chosen by the defendant, or on bis behalf, to convey the goods from the Port, or whether it arose from the alleged squall in the cross-channel, and the assumed leak consequent thereon. If the jury thought the damage was resulted from the squall causing the vessel to leak, and so to wet her cargo with clean salt water, he thought the plea was proved, and the defendant was entitled to the verdict. As to I the very fact of the squall, and that of the leak, there was only the evidence of New lands ; and that evidence was not given in a way to create perfect confidence. The jury must consider all the discrepancies in Newland's evidence — fairly consider them, remembering all the circumstances — in order to decide whether those discrepancies were sucb as to induce the jury to disbelieve the witness. If Newlands's evidence was swept away, there was nothing left to the defendant upon which j to rely; but it was competent to the jury to give effect to Newlanda's testimony upon parts of the case on which he was uncontradicted, and, a fortiori, to which the whole circumstances of the case gave some confirmation. That there were only two men on board at the time, became of more importance when the crippled state of the mizenmast was remembered; and both things must be considered in deciding whether the defendant did use such caution as he was bound to use in his own behalf, and especially for the interests of the plaintiff, in seeing that the vessel chosen to convey the goods from the Port was such as was fitted to withstand such a squall aa had been spoken of. After commenting upon the other evidence, His Honor advised the jury to get rid of any idea that Newlands had been bribed. They all knew how such n>en would talk : they were to settle everything aa soon as they got into the box ; the jury would believe them at once, and all would be over 3

The jury, after ten or twelve minutes' absence, returned with a verdict for the plaintiff— damages, L 142 19i 3d.