A GRAIN CASE.

Otago Witness, Issue 2252, 29 April 1897, Page 24

A GRA IN CASE.

Tub following case wag heard at tho Dunedin S.M. Court on Monday :—

Nimmo nnd Blair v. Thomas Rauiforth (O.xmaru).— Claim £18 lls lid, commission on the sate of wheat.— ln tbis prevously-heard case, in which Mr VV. (J. MacGregor appeared for plaiu-tift'-i, aud Mr Harvey for defendant, his Worihip delivered judgineut as follows :— This is a claim for commicwiou on the sale of wheat. There v a direct conflict of evidence between Mr Gallacher (who acted ou behalf of the plaintiffs) and the defendant as to whether the writing signed by defendant contains all the conditions under which the wheat was to be put into plaintiffs' hands for Sile. Iv tbe lirst place there is at least a suspicion that whv'n an agreement of this kind is put into writing it contains all the terms of th'-i agreement. On the other hand it is quite ]>robable tbnt after the writing was signed, upon further discussing the matter, it would be seen that some arrangement was required as to how plaintiff-t should ascertain or be informed whether the Loan and Mercantile Company had fold the wheat by 6 o'clock p.m. of the s)th November. The parties resided a long distance from tach otbpr, and it would be a business-like _ arrangement Unit the defendant should telegraph to the plaintiffs if the wheat was not sold rather than that plaintiffs should telegraph in the first instance to inquire whether the company had sold. It would save tima and a little money. My decision upon this di-puted fact must bo arrived _at by a consideration of tho degree of credit tbe opposing witnesses in my opinion deserve. Mr Gallacher's evidence of what took plac at defendant's house agrees with defendant.-* conduct lie rode to Oamaru, leaving Mr G*l)a«'hsr at bis house. He visited the office of the Loan Company. AVliat took place is not all before me, but it ia evident that he tried to set better teuns or Io repudiate the sale by the Loan Company. Mr Gdlacher swore that defendant requested him to wait at the farm, and eaid he would go to the Lorii Company at Oantaru and see what he could do about the wheat. Mr Galiacher wiitod at the farm several hours ; he hart no business there but, in respect to the sale of the wheat, and thPie is Hfc'la doubt defendant, finding himself committed to the sale of the same wheat to two different firms, went to Oamaru intending, if h« could do so, t» get off tbe tale by the Loan Conip in*, but, finding that apparently impracticable, h-" repudiated the salo by the plaintiff?. Defendant's conduct in respect to the sale by tho Lo;>m Company is proof of his unreliability. Tin coinpiuy, according to the evidence sold his wh'-'it f.o.b. lit Oamnru, which Mr Reid swears positively Was in accordance with defendant's instruction?; but \vh?n infoiin^d of the eale defendant insi. ted that his instructions were f o.l). at Knlicla— not at Oamaru I us« thi» *a a. test r.f defend uit.'<; credibility, as I feel satiified that Mr ReidS cvidenc is to be preferred on that l'Orit; in f.ict, the defence has to rely upon it, for i f defendant' >; instructions were f.o b at lOntield, as he ijub?equ°utly persisted, then there wjs clearly ro valid sale by the Loan o>nipany bpfore the 11th November. I feel no hesitation in ci.minf: to ihe conclusion that Mr GalUcher's evidence is tn bu preferred, and, that being so, th.'t plrunt'flx :<eted within thuir instruc'ions aii(' fmjpd the commission. Judgment, for plvntiffs for £1S U« lid, with costs of c.uirt <ioi), witnesses' expenses (£;?), profe.ssioual costs (265).