SUPREME COURT.-IN BANCO.

Otago Witness, Issue 1582, 18 March 1882, Page 14

SUPREME COURT.-IN BANCO.

: Wednesday, 15th Maeoh. ' ! " ■ (Before his Honor Mr Justice William?.) , ' ' ■ STEPHENSON V. SHAND.\ , „ , ■ -In this case (an appeal from the Resident' , Magistrate's Court, Dunedin), hid Honor de« I liWed judgment as follows : — , , j" In the present case the appellant, the de* fendant below, instructed certain, cattlebrokers to sell cattle for him. He' told' them ■ tliat there were 200 head pf cattle-400 ' bul- , lofcks and 100 cows,— and his instructions were 'tjhat .the, price per head was to be £6 5s for bollocks if from 30 to 40 head were sold,, and £6 if Over that number were 'sold'; and fof ctjws, £4 10s or £4' 15s.' The cattle in question ■ aepeaif ,to have been on the appellant's farm at<> Henley. The brokers sold 130 of the cattle to tne respondent— 7o bullocks .at £6, and ,60 cows at £4 15s — the respondent to be allowed 1 to pick them out of the whole 200. I am unable, to discover why the brokers had nofr power to! sell the cattle as they did. It apt. • piara-iifrom the instructions that for. a smaller ' number they . were 1 to charge q > h|gher price, and the case states' that, tljereis a considerable difference in the value per head of a lot of store cattle. If I' then,, as wis contended by the appellant, the cattle 01! ght ' to have been sold conditionally upon the ■ vendor haying a right to select those which he : was to deliver, a purchaser would be in effect asked to pay per head for the worst of .the.i cattle in excess of, the average value per head, of' the whole of them, as of course the vendor would deliver the worst. Manifestly no one would purchase on , such terms: That the ■ brokers acted within their authority may, , however, be shown if necessary by reasoning oft a more technical character. It will be observed that nothing is said in the instructions asito the delivery of the cattle, and it certainly , wis not contemplated that they were to; be., delivered elsewhere than on the farm of the appellant. No day is mentioned upon which the appellant is to give delivery, and it is quite consistent with the instructions .that ,any ! purchaser was to go and fetch the cattle from off the farm when it suited him to do so,' and thiftt no active part in the delivery was to^ be taken by the appellant. The brokers, therefore, would have been justified in entering into a contract binding on the appellant that the purchaser of so many cattle out of the 200 should Isend to the farm of the appellant and fetch themi Now, had the brokers entered unto a contract, the purchaser would have been entitled to select which of the cattle he choße— in other words, to have the pick of them. The rule on the subject of election is that when from the nature of an agreement an election is to be made, the party who is by the agreement to do the first act, which from its nature cannot be done till the election is determined, has authority to make the choice in .order that he may be able to do that first act. ('Benjamin / on Sales,' 2nd cd., p. 264.) In the illustration given by Mr Benjamin (p. 264), if a man sells another so many thousand brickß out of a stack of bricks, the purchaser to send his cart^to fetch them, the right of election as to which bricks he will take belongs to the purchaser, The same principle is stated by Lord, Coke in' Hey ward's case (2 Rep., 37) : 'If I give you one of my_ horses m my stable, there you shall have election, for you shall be the first agent by taking or seizure of one of them.' As, then, the brokers would have been justified in entering into a contract giving the respondent by implication the pick of the cattle, they were,' not exceeding their powers when they entered into a contract giving him the pick expressly. The other question in . the case, whether the agreement, entered into between the brokers and the respondent is a sufficient memorandum in writing within the Statute of Frauds, I do not think this Court is at liberty to consider. It appears from the case that when it was objected by the defendant below that the agreement between the brokers and the plaintiff should be proved by writing, the document set out in the case was produced and tendered in evidence, and was received without objection. No question as to its sufficiency under the Statute of Frauds was raised in the Court below, the only objection taken being that the brokers were not authorised to sell, giving the respondent the pick. Now the Act gives an appeal from the decision of the magistrate in point of law. It cannot be said that a tacit assumption of the sufficiency in law of the document, the sufficiency being acquiesced in by the parties at the time, amounts to a decision in point of law that the document was sufficient from which the parties could appeal. The English authorities are very strong in support of the proposition that an^ appeal can only be had in respect of an objection taken at the trial (Watson v. Amborgate Railway Company, 15 Jur., 448 ; Yorke v. Smith, 21 L.J., 2 'q.K 53; Williams v. Evans, L.R. 19, Eg. 547), uuless, perhaps, the Court above can gather from the case that the Judgo below has expressly considered and decided some point and has decided it erroneously, as in Clarke v. StanclifF, 21 L. J., ex. 129.— Appeal dismissed with costs."

GRAHAM V. OAREW AND OTHERS. . Argument of rule nisi for writ of prohibition. Mr Dennislon appeared for Mr Graham, and Mr Haggitt for Messrs Carew, Cullen, Palmer, and Christie.

' The facts of the case, as stated by Mr Haggit, were as follow :— The retuming-officer deSlared Mr Cullen duly elected a member of the Taieri County Council by a majority of three votes. Mr Graham, the defeated candidate, petitioned against the return withm .14 days, as prescribed by the Act, and on inquiry Mr Carew, K.M., found lhat a man who had no right to vote had recorded four votes for Cullen. These votes being struck off, Graham had a majority of one, and was accordingly declared elected. Within three days after Mr Cullen, assisted by Messrs Palmer and Christie, petitioned against Mr Graham being returned on the ground that certain votes had been counted for Graham which he was not entitled to. A second inquiry was held by. Mr Carew, the result being that Mr Graham was unseated, andMr Cullen, ' who was declared elected, took his seat m the Council. It was now r , contended that Mi Graham having been declared elected there could be no further inquiry, and that tne aer- claration ,of-,the, election' of Mr Graham was ' fina land conclude. The question now fos whether^ not by the terms of the Regulation of Local Elections Act .the. magistrate had power to make a second inquiry, the Act piovidine that a petition against tfte return must 1 be lodged within 14 daysof the election.^ ' 'Mr Wgitt contended that the Magistrate had power to make the inquiry 1 ; and Mr DenSon, on the other hand, submitted that the > riowor given to the magistrate .under the Act was simply a power to inquire into certain specific points, and that' to lodge- a"; petition «fwithin!4 days after the election " could only mean .14 days after the declaration by the returning-officer. ' His Honor said he would talcertune to consider the Act carefully. HUT prfefeerft -Impression, as far, as it went, was that ;it W com*. <mteus of the Legislature, andlif 'Mr Denniston's contention was right the attention of the Legislature should be called to (the fact.— Judgment reserved. „ The Court ' adjourned at 4.40 ;i p.m. until this (Thursday) morning.