MONDAY, MARCH 16th.

Otago Witness, Issue 851, 21 March 1868, Page 6

MONDAY, MARCH 16th.

The Court sat at ien o'clock ; and the trial of Special Jury Causes was proceeded with. QUESTIONS AS TO THE DELIVERY OF A STATION AND hIIEEP. Webster v Maclean. — Mr James Smith appeared for the plaintiff, George Webster ; and Mr George Cook was for the defendant, Hui/h M .clean. The plaintiff claimed L2OOO, for the short delivery of land and of sheep, on the purchase of Run, 1n"o. 143, Southland, known as the Bdnmore St ition. The phiinifi's ense was, thai on the 21st February, 1807, Messrs Power, Pantlin, und Co. sold, on behalf of Hugh Maclean, at their rooms in Dunedin, Run No. 148, a1?a 1 ? delineated on the Southland Government map, and which tho Conditions of Sale described as comprising 50,000 acres, or thereabouts, of pastoral land, and about 12,000 acres of b\ish land, held under a license terminating in 1872, but as to which the vendor had agreed for an extension of the term by 10 years, as to the i paster d land only, at an annual [rating] rental of a out L4OO. Of the pastoral land, about 20,000 acres were stated to be under lease to Mr Taylor, at L2OO a year, and Id per head. There was a preemptive riiiht over about 250 acres, and about 80 acres of freehold land, on which was a house ; a woolshed and other improvements bein<? included with the thinss sold. The Conditions of Sale also included as to be delivered — 6005 ewes, 4019 weathers, 3008 lambs, and 401 rams : total, 1i,033. Delivery was to be (riven within 14 days of the sale ; and there were provisions as to the rates at which an excess or a deficiency of sheep was to be allowed for. George Webster, the plaintiff : I am a sheep farmer in Southland. I purchased at auction the run in question, under the conditions of sale shown me. I saw the plan now before me, at the offices of Power, Pantlin, and Co. tho auctioneers, at the time they sold the run. The advertisement which attracted my attention stated xhe acreage of the pastoral land at 00,000 or thereabouts : but I saw, at the auctioneers' rooms, a description stating the acreage at 56,000. I gave L 17,000 : the money being paj'able to the agents, Dalgety, 'Rattray, and Co. The sale was on the 21st February, 18G7. I gave a cheque for L 500 0; an acceptance at three months, for L 5119 18s 7d ; one due 24th August, 1887, L 3676 10s ; and one due 24th February, 1868, L 3852 17s tid. The LllO 18s 7d on the first acceptance, was for interest ; the original

terms having been LIO,OOO cash, and the balance at six and 12 months ; the interest on -the-LSOOO being accepted by the agents as equal to cash, so as to enable me to get funds from Victoria. - There was interest on all the acceptances, and I have paid them all. I went to take delivery, and met the defendant. I did not take any men with me, because I had understood that the men there were willing to engage with me ; and I did engage them. On the day after my arrival, Mr Blythe joined me. I arrived on the evening of the 6th March. On the morning of the 7th, the defendant told me 'he had about 7000 sheep in the yards already mustered. These he was desirous of counting out and delivering to me at once. I objected to beginning to receive, until all had been mustered ; but eventually I consented to have the sheep in the yards counted and bottlemarked, +.he sheep being counted out alter they had been so marked in a small pen, where they were put in lots of about 100. We noticed that several got out without being t ottle-marked. Those sheep were let out on a piece of country s fenced by a creek, where the defendant said they would c safe — and where I believe they would be safe if properly tended — a man being appointed to look after theni : not exactly to tail them, but to keep a small boundary. After this, the defendant and his men went out mustering for about a week — and one night they camped out, bringing in next morning all the sheep that could be found. The count was agreed to be — Wethersand lambs, 7511 or 7514 ; ewes, 5067 ; rams, 408. I give these figures from my rough notes, on which I mad c ou t my receipt. There were no conveniences on the station for mouthing the sheep, and the country where the sheep were mustered was a very dangerous one for dealing with sheep, so that it was agreed, instead of mouthing, to divide xhe sexes. Hence the classification I have given. The total shown was 13,586 ; or a deficiency of 447. In the ram paddock, on taking final delivery, the defendant said that he was between 300 and 400 short. I was interested in the tutu question, ■which is our great terror down there ; and it was stated that 120 had been sold, and about | 50 killed. Mr Blythe and myself laughed, sa\-ing that so small a loss between shearing and the muster us was thus shown, was the most favorable circumstance we had heard of as to the run. When sheep are newly turned out, after shearing, on a country with , tutu on it, is the time of greatest | danger to them ; as some must, while kept in, be short ot food. The defendant told us, before we took delivery, i that he did not mean to go out again | mustering. The run is of country which j is rather rougher than the majority of Otago country. There is a great deal of i flax on it, much high tussocky grass, and I plenty of tutu. There was a dispute between us as to 65 sheep — whether they I were included in the first 7000, and had escaped bottle-branding, or whether they were other sheep which had not been brought into the yards amongst the 7000. 1 offered, without prejudice, to "go halves ;" as the defendant would not consent to that, I said tha,t I must refer the question to the arbitrators. | The 447 short, included 116 ewes. I con- | elude that a fair value for the ewes would be an average of 17s ; wethers and lambs about 14s. There were seven rams more th an the scheduled number — or I gave a receipt for seven — and the defendant would be entitled to an allowance of L 2 10s each. Before going to take delivery, ■ 1 went to the Government Survey Office, Southland ; and, in consequence of what I there learned, I complained to the defendant that there was 4400 acres short of the acreage in the conditions of sale. I said that I had been compelled to pay money on the deficiency in Dunedin, before I could ascertain the real extent of the acreage. I was anxious to arbitrate ; but two attempts foil through. I told the defendant that the deficiency was exactly what had been sold by the Southland Government, and for which he had been compensated, so that he could not but | know of it. He said that the misdescription was not his fault, but that of Dalgety, Rattray, and Co., who had neglected, or exceeded — 1 am not sure which — the instructions piven. The 4400 acres is a level plain between the house and the country. It is, I should say, of a fair average value of the run. I think the value of the run as a whole was between 2s and 3s an acre; but nearly half was under lease, of which two years were to run ; and I think that a fair value of what I got immediate possession of would be 4s an acre. Apart from consideration of the lease, 3s (id to 4s rniLcht be taken as a fair price per acre for the 4400 acres. The outside value of the house, and all other improvements, is, according to my calculation, between LSOO and L6OO. Immediately before ftus action was commenced, I saw the defendant in Invercargill, and asked him to try to come to a fair and reasonable settlement, instead of forcing

wMch ;w-ould possibly cost each *&sa'tiriXiv£ th'akHhe anipunt,, i n^djapste. „ He' said' that 'her "was; willing, any '"dayV to settle for the sheep ; but ' that 5 3io trould say * nothing as to ' the. ■land,' for that wag altogether' the' fault of Dalgety, Rattray,' and Go: We we're speakinor lightly, and I said that 1 ' would give him L2O if he would show me iiow'l could go against Dalgety, Rattray, and Co ; that I should be most happy to substitute them for him ; but; that I was -tokl I cotx'nl not g-> atj.v^-t theaY, :is only ho apiie.<i-> din conm-cfion with tl»e matter . By A-Ir Oooi : The Lush lutid -was not sold : it is included in the description of what thu run was as on the Government map ; but it- had been excluded by agreement with the Government. The defendant paid rates only on the p:tstoral country ; and the rateable l;md only was what was really sold, under the conditions of sale. The conditions compelled me to pay money, and give security for the remainder, immediately after the sale. I put the money and secu-, rities into the hands of Dalgety, Rattray, and Co. as trustees for the purchaser as well as the vendor. It's just what 1 should like to know, -why an ■allowance was not made for the deficient aheep : the arraogenient was rather onesided, as it turns out. Distinctly, I say that, at the time of delivery, the defendant did not propose to ge over the run again during the month mentioned in the 13th condition of sale, so as to se-i what sheep/he could get in. He did, imrae--diately after returning to town, write to me to be good enough to inform him when I mustered, so that he might be present, and claim any sheep not marked with the battle-brana. 1 declined, for I did not recognise his right to any sheep after he liad scoured the run clean, and given me •delivery. We did not muster until shearing time, which was eight months after delivery. Then, making full allowance for the sheep killed, and for a full average of deaths, we found, after Bhearing, a deficiency of nearly 10 per cent, (or near 1000 sheep) as compared with what there should have been, according to our count. If we had found 400 or •500 sheep in excess of count, I should have been most happy to have allowed for them, and so foregone my claim for sheep. I should say that, taking the brick house and the improvements as a whole, including half value of three miles of division fence, the value would be LSOO or L6OO at the outside. I include the improvements in my estimate of the acreage value of the run. Re-examined : it, before I took delivery, the defendant had made vto me the request which he made after he returned to town, I should have declined to take delivery. I refused, and refuse, to recognise the bottle marking as a bi*anding for any such purpose as to enable him. to claim sheep. It was simply a marking of sheep that we had seen in the count out. It was no permanent brand ; and, under his request, the defendant might, when ■we mustered for shearing, have claimed as his, half the number of sheep on the station.

John R. Blythe, and R. Taylor, were ■examined in support of the plaintiff as to what took place at the time of delivery. Blythe added that neither at the time, nor within a month of the sale, did the defendant make any i:laim as to going over the station again to look for sheep.

John H. Baker, Chief Surveyor, and a member of the Waste Land Board, Southland : I produce a tracing from a map belonging to the Government of Southland. I have compared the tracing -with the map. The tracing correctly shows the Ixmndaries, &c, of Rim, 148. On the 21st February, 1867, the acreage of the pastoral portion of that run would appear on our books as it was on the Ist May, 1866, namely, 56,185 acres. In the meantime, an application was made to purchase 4290 a. Or. 28p ; hut on survey, the applied-for land proved to be 4370 a. Ir. 3p. which quantity was sold. The owner was entitled to compensation for that land ; but, not being the Treasurer ■of Southland, I canuot say that compensation was paid. Since then, more land has been sold.

By Mr Cook : There has been a trigonometrical survey of the whole district, by Mr M 'Arthur, and. a topographical survey of part of it. For the purpose of selling the land, the area of Run<l4B was not ascertained with sufficient accuracy ; forairstation purposes, the area had been accurately ascertained. Of course, there may really be a small excess or a small deficiency — 500 acres, possibly. Jt A. M 'Arthur, who made the survey, agreed with Mr Baker, as to the ascertainment of the area.

Mr Cook briefly stated the case of the -defendant — that what was sold was not a specified acreage, but Benmore Station, as it was ; and that it was the duty of the purchaser to satisfy himself as to -what he was buying. Hugh Maclean, the defendant : I remember Dalgety, and Co. put-

ting up for Bi^e^tf sns4bella|f, 'Kfenmore iMpJMMS^& J.a^stocted.them.ta. sell the station— l did not "give them.any particulars'. "*" '" . *' "7*": ''/' " ,' Mr Snuth objected. The contract" was admitted. '" ' . Examination continued: I instructed them to sell 60,000 acres or therea' outs. After the advertisement had appeared 1 , the plaintiff came down, I showed him over tlie station, and I pointed out to him where about 3000 acres had Been solci. I do not' remember, anything pa^-i'i<r as to thfc totd acreage of the" run. Wo iis-.il the bull- of the sheep about^ the yards two du.ya uefor^ i he" plaintiff arrived to take deli v «'.ry. He v,-\nted to wait until Mr Blyt-w came, T iLit I said that would not be fair, as we had ' the sheep waiting. 1 will ' swear that, during the' delivery, not half a score of tho sheep escaped being bottlebranded. The plaintiff ought to have brought enough men to havr take delivery of the sheGp. I made it that we delivered 13,651 sheep, or 65 more than the plaintiff. We had a dispute as to the 05. The plaintiff ou»ht to have kept the sheep properly. I wanted to bottle-brand the 65 ; but he would not consent, and I raddle -marked them. The were counted in my 13.651, but they were not bottle-branded. They Avere mixed sheep. We finished shearing on the 6th February, and then there were 14,229 ; and I believe that near 100 rough sheep that were not mustered at shearing, were included in the count at delivery. I had, during the interval, sold about 100, and killed 70 ; and there would be about 100 lost, besides. At the close of the delivery, we compared tallies, and there was an agreement, except as to the 65. I refused to take the receipt, and it lay on the mantle- piece for two days. The dispute was not only as to the 65, but 1 claimed that there were about 400 sheep on the station thathadnot been mustered, and the plaintiff said that he claimed all sheep on the place after the delivery. I had not received a copy of the Conditions of Sale from Dalgety, Rattray, and Co. I did not say that I would not take more trouble in mustering. I went, -within the month after the sale, and saw Mr Blythe — the plaintiff was not there. I told Blythe that I wanted to see after any of those sheep that I supposed to be there, and to be mine ; and he said that he would not let me meddle with the sheep any more. There was afterwards correspondence as to arbitration ; and I applied in September to be allowed to see the sheep, but the plaintiff refused. The bottle-brand was of pi<-ch. and tar, and would have j been as visible as the station- brand. I ; I think that, at the time of the sale, 13s j was a fair price for an average lot of j pheep. I should say the run was worth Is 6d to 2s an acre ; none of it was worth more than 2s | By Mr Smith : I say that the plaintiff ought to have had' hia own mon to^take charge of his sheep, as they became so on being bottle-branded ; I consider the conditions to have required that he should be there to take delivery from day to day. I say that not more than half a score of sheep escaped being bottlebranded ; there were too many men about the yards ; and I believe that not half a score really got away. John Tvirnbull Thomson, Chief Sur- ■ veyor, Otago : I know the locality of Run 148, as shown on the map handed to , me. I consider the map to be but a sketch-map ; and in sketching, a vpry competent man might be very considerably oat in area. If I first made a i trigonometrical survey of 56,000 acres, i and then a chain or actual survey, I might i be 500 acresoutintheformer, or2oooacres. ! It depends greatly on the eye of the snr- ■ veyor. I would not take as evidence, anything but a map from actual survey. i By Mr Smith : 1 made a reconnaisance - survey of this tract of country about 15 years ago. George Hadely, surveyor, formerly in s the employment of the Southland Govern- ■ ment : I have been over the country ■ shown on thi3 map. The difference be- • tween this map, and a map from a proper i survey, might be great or but little. It would depend on the traverse of the creeks, and the different positions in lines which are not straight, or the tops of hills [ through which boundaries run. I should : ' not be much surprised in a difference of i / 5000 or 6000 acres, between the results of 1 jthe two modes, in dealing with a tract of t 56,000 or 60,000 acres. The irregularity s of bush, and of bends of the New River, [ would greatly affect the result of a trigonometrical survey. William H. Calder, merchant, Inver- ■ cargill : lam pretty well acquainted with the Bcnmore station. As representing s the second mortgagee, I had occasion, at i the time of the sale, to take a pretty close , estimate of the' improvements on the 5 station. Excluding the wire - fencing s on the boundaries, and the pre-emp-tive right, 1 think LI2OO to be a ■ fair or low estimate of their value. My • estimate of the value of the sheep, as

tfpop^hjtj^n,sa8 14s a head, all round ; I -ajadXc^ut&te&^erli^^ iWi^pjdtTimp^rpvements ?( ,OT. at 3s with im-il fprqyerrie)pts. ' Il^acfe .a-coiisiderable' ajlow-, anqe^r the leased, fend, and an allowance, for tßß>land so}d! ,,"; „'""" ','<' Edward Scouhjf,' station manager ,!TTpper Waitakij who was on Run 148 at the time of 'the delivery, and for about six months previously, believed that not more than half a dozen sheep actually escaped bottlebranding. More broke away, ,but they were brought back, and branded. He considered that the '6s sheep -ought to have counted as delivered 1 ; tut when he said 'so to the plaintiff, the , plaintiff replied, l< That is not your business : I shall get it settled in town." . I Mr Cook and "Mr Smith briefly addressed the" jury. %- The Judge said that as the Conditions of Sale specified 56,000 acres, he was. of opinion that that amounted to a warranty that the area of land to be sold was 56,000 acres, "or theieabouts." It appeared that what there was, according to the evidence from the Southland Survey department, was not 56,000, but 51,815 ; ' or a deficiency of 4185 acres. Was that j only such a deficiency as came ■within the words, "or thereabouts"? If the jury 3hnuld think not, they. would then have to go into the question of the value of the land. As to the sheep, the plaintiff said that the deficiency was 447 ; the defendant put it at 382 : the difference arising out of the dispute as to 65. The defendant said that he ought not to be charged even with the 382, because there was reason to believe that a greater number remained on the run unmustered, but which he could probably have found if he had been allowed to scour the run again. Was there any deficiency 1 If : so, a fair price would have to be paid to | the plaintiff. He (the Judge) thought' the jury would join him in regretting that two gentlemen who, in Court, could put their views forward so fairly, could not manage to settle their differences without [ coming into Court. Verdict for the plaintiff — damages, LBB2 11s 4d. The Court was adjourned shortly before five o'clock.