IMPORTANT JUDGMENTS.

Otago Witness, Issue 1421, 15 February 1879, Page 6

IMPORTANT JUDGMENTS.

The following judgments were delivered by Air J. Bathgate, R.M., at the Dunedin Resident Magistrate's Court, on the 6th :—

James Doughty v. Garrafct H. Clearwater.—ln this case his Worship delivered the following judgment :— " The plaintiff is the surviving partner of the firm of Stewart and Doughty, and he now sues in his own name to recover £97 10s, commission due by the defendant on a sale effected during the subsistence of the firm. The partnership was dissolved by mutual consent a few days before the death of Stewart. Mr Harris, for the defendant, moved for a nonsuit, on the ground that the partnership was dissolved during the lifetime of Stewart, that his share of the partneiship goods belonged to his executors, and that there was no proof by documentary evidence that the plaintiff wai authorised to realise theatsetaof the firm. In the ordinary cisc where a partnership is dissolved by the death of a partner, it is settled law that as regards a chose in action, the right to sue for a debt owing to the firm at law devolves upon the surviving partner exclusively. (Kemp v. Andrews, Carth. 170 ; Dixon v. Hammond, 2 B. and A. 310; 1 Kaymond, 340 ; 2 Salk., 344) This principle has been recognised in Slipper v. Sidstone, 5 T. R., 493, where it was held that a debt due to a defendant as surviving partner may be set off against a demand on him in his own right. In French v. Andrade (6 T. R., 582), the converse was held, viz , that a debt due from a plaintiff as surviving partner may be set off against a demand he has in his own right on the defendant. In Smith v. Barrow (2 T. R., 476), where money was owing to two partners, and was paid after the death of one to a third person, it was held that the surviving partner could maintain an action for money had and received in his own right, and not as a survivor. From these cases it is clear that the plaintiff can sue in his own name. The executors of his deceased partner nuy call Mm to account for any share falling to them as representing the deceased, but with that the defendant has nothing to do. Their right is jits tertie so far as he is concerned. The discharge of the plaintiff is a sufficient release of the firm's claim against him. Ido not think the dissolution of the firm before the decease of Stewart can make any difference in the application of the principle referred to. Although the dissolution disabled the partners from continuing in business as a firm, yet the partnership continued to subsist for the purpose of winding up the concern. Each partner is left in possession of full power to collect debts due to the partnership, and to make due acquittances, discharges, and receipts for the same. If one partner die before the partner' ship is finally closed, the legal title to a chose in action thereupon vests in the surviving partner, in the same manner as if the partnership had been disso ved by the death of one of the partners. It is the survivor alone who is in a position to grant a valid die* charee to a debtor of the firm. (Story on Partnenhip, S. 323). The motion for a nonsuit being therefore refused, I am of opinion thai on the merit* the defendant is liable. There is a conflict of testimony, but the weight of evidence is on the Bide of the plain* tiff. I have no doubt the defendant placed the property in the hands of the firm for sale, and It was through the plaintiff that the .purchaser, Hay, was introduced to the defendant. Moreover, the defendant gave his evidence in an unsatisfactory manner. He appeared to be in a complete muddle, and his testimony cannot be relied on to set aside the case made out by the plaintiff. Judgment w-ll be for the plainUff for £97 105. with coats." James Keppel v John Wallace.— His Worship gave judgment as follows:—" The plaintiff sues to recover £21 17s sd, the balance of the price of a parcel of oats bought by and delivered to the defendant. It appears thtt the plaintiff had a quantity of Tartarian oats in the course of being threshed in June, 1878, which, as it was threshed, was bagged aad classified as Ist, 2nd, and 3rd Classen of quality. The defendant called and asked about the oats. The plaintiffs man opened two of the bags of the fir <t class on hand, and showed a sample to tha defendant. The defendant afterwards saw the plaintiff the s«ne day, and offered 3a fid per bushel, which offer was dec.ined. tf ext day (June 27th) the plaintiff agreed to the defendant's price, and it was finally arranged between them that the plaintiff sold to the defendant 1500 bushels first-class Tartarian oats, of the average weight of 401 ba to the bushel, at 3* 51, to be delivered at Lawrence railway station. After the sale, the defendant said : ' I think I will take a sample of the oats with me ;' whereupon they both went to the yard, and the plaintiff opened the first bag which camo to his hand and gave the defendant a sample, which he took away. At this time the threshing was not completely finished. The plaintiff afterwards commenced delivery at the railway station, and forwarded 308 bags, containing 1320 bushels. On Jmy 15th he was stopped in his delivery by receipt &f a telegram to the following effect :—' Oats sold by you to John Wallace much inferior to sample. Will be sold here by auction at your risk on Friday, unless you otherwise direct. Reply.— Macassey and Co.' He did not reply ; but he afterwards consented to an auction sale for the benefit of whom it may concern. In the meantime proceedings were instituted in th« Supreme Court by the plaintiff to recover £227 5s 7d for the oats sold *nd delivered. The defendant paid into Court the sum of £205 8a 2d, being the net amount realised at ths auction sale. It was subsequently agreed between the parties that the plaintiff should receive this sum, and that the amount in dispute beyond that should be sued for in ,the Resident Magistrate's Court, with liberty to the defendant to hi iog a cross-action to recover damages for loss sustained by him. The amount now sued for— £2l 17s sd— is tbe balance of the price of oats and baps delivered, after credit is given for the sum of £205 8s 2d already mentioned. I find that the oats delivered were not all first-i lass Tartarian oats, 46 of the bags being of a very inferior description, only realising 2s per bushel at the auction sale, while the oth«r 262 bags brought prices ranging from 3s lOd to 3s 8d per bushel. The price at tha time for first-class oats in Dunedln was 43 per bushel. I find it proved that the whole parcel delivered was very unequal in quality, and that only about a third of the whole can be B«id to be a fair sample of first-class Tartarian oatF. I find that the circumstance of the defendant taking away a sampie of the oats immediately after the bargain was concluded does not amount to |a sale by sample. The principle which, in my opinion, should regulate the decision in this ca?e is stated by Farke, 8., in Barr v. Gibson (3 M and W.. 390). "I he bargain and sale of a chattel, as being of a particular description, does imply a contract that the article sold is of that description.' What was sold by the plaintiff was first-class Tartarian oats of an average weight of 40 lbs per bushel. What was delivered did not come within that description, and the defendant cannot be obliged to receive and pay for a thing different from that for which he contracted. (See Josling v. Kingston), 13 C.B.N S., 447, and the cases referred to in 2 Smith's L.C ,p. 27 ) In the circumstances, judgment will be for tho defendant, with costs, which, in terms of agreement between the parties, involves payment of the costs in the Supreme Court action."