SUPREME COURT. CIVIL SITTINGS. Thursday, April 13.

Otago Witness, Issue 2356, 20 April 1899, Page 26

SUPREME COURT. CIVIL SITTINGS. Thursday, April 13.

(Before His Honor Mr Justice Pennefather.J JI'PHEE V. WRIGHT, STEPSENSON, AND CO. Claim £370 4s 6d, on a contract for the sale of certain oats. Mr W. C. MacGregor appeared for the plaintiff, John. M f Phee, of Balfour, farmer; and Mr Honking (with him Mr Solomon) for the defendants, Wright, Stephenson, and Co., of Dunedin. This case was partly heard in December last, and was then adjourned to the next civil sittings of the court. Mr W. C. MacGregor suggested that as it was so long since the cane had been before tho court he should be allowed briefly to sum up the plaintiffs case. Mr Hosking said he intended to state the facts, and objected to the usual order being; departed from. Hi 3 Honor said that, except by consent, the usual order must be followed. Mr Hosking then opened the" case for the defence, and said that, as his Honor would recollect, the oase, which had beon partjy heard, was an action for the price of oata alleged to have been sold and 'deb'vered. His Honor said he would liko to know, independontly of tho fa<}ts of tho case, if tho oats had beon sold sinco the trial. Mr Hosking said no; they were still lying in the store. Hl3 Honor thought that seemed very foolish, for it had been said the placo was unsuitable for them. Mr Hoaking remarked that that was only the opinion of one witness. The defendants were confident tho place was suitable; it was a place ordinarily used for the purpose. Tho main point was, then, whether oats were not going down in price; and, as a matter of fact, they had receded in price materially, co that whichevor side lost in this case would now lose more by reason of this depreciation. His Honor assented that that must bo so, nnd said that when the matter was last before the court he had given a very Btrong indication of his opinion that the oats ought to be sold. Mr Hosking then referred to the statement of claim, and said that from this it would appear as if there had been a total delivery of 1240 sacks, that the price agreed upon was £547 3s Id, and that there had been paid £176 38s 7d, and that therefore there was left the balanco now claimed. The pvidonco so "far, the learned counsel Submitted, had shown thai there were distinct circumstances with reference lo the £26 sacks which tho defendants claimed were rejected and the 360 that had been accepted. The destination of the lots was different. What would be inferred fiom the statement of claim was that theru' was one lump price, a payment on account, and tiierefore a balanco left — that there waa one sale, one delivery, one lump price, a payment on account, and therefore one acceptance of the oats. What the defefidanta would submit waß that there was a distinct dealing, as it wore, for tho 360 sacks that ■\\cro accepted, and that they relied upon the terms of the sale noto, not only to roject the whole, but to reject any part. The sale note was distinct that if the bulk, or any portion, was found inferior the purchaser would have the Tight to reject the inferior quality, or tho whole parcel. The defence was thafa the oatrf were sold by sample, and that the C 26 sacks, not being up to sample, had been properly rojocted. They also set up ac a defence, which went to part of the purchase price, if it were held that they had accepted the oats, that they were worth 2d per bushel less than if they had been up to homple. The plaintiff's contention was that he had two samples, both of which had been, accepted at tho same price, and that lie had hent 700 sacks of the inferior and 126 sacks of the superior oala. The defendants' reply to that was Uiat the samples the plaintiff had produced in couit were not tho samples by which tho defendants had bought, which it would be shown were superior to the pamples the plaintiff had brought into court. The defendants also filed a counter-claim, on the basis that they had a right to reject, and had rejected tho oats, in which event they were entitled to £43 2s 6d, which had been paid for tho lailage of the goods to Dunedin, to £18 3 s 5d for the storage of the oats up to tho 16th of November, 1093, to id per sack per week extra since then, and to' £3o darnnge? for breach of contract. The two quesuons at isnue on tho evidence vrero> Uy what samples did M'Plioo sell? Did ho bell by the samples which he had produced in court as No. 1 and No. 2, or did ho sell by the samplos the defendants would produce? The substance of the evidence for the defence would be that tho samples No. 1 and No. 2 that they had purchased on at (Jore wore identically Iho samo class of oats^ and might bo substituted one for tho other. A witness would say that that fact had been remarked to the plaintiff at the time, and that he had lieen asked why he had brought two sample? of the same oats. The reply given was that ho had taken a sample for each paddock, and nothing more was thought of it, as that was quito a usual practice. The two ibamples were put together. Evidence would bo given that they were in every respect similar, and the defendants relied upon tho fact that they had given an all-round price as corroborati vo of the view taken at the lime^ — namely, that they wore the same class of oats. Tho first witnesG called for tho defence wa3 James B. Moodie, grain buyer for the defendants at Gore, and his cross-examination was concluded at 5.20. The court then adjourned until 10 o'clock this (Friday) morning.

Particulars pertaining to 35 estates of deceased persons placed under tho chargo of tho Public Trustee during hist month are gazetted. Up to tho present date (says the Tapanui Courier) this eeason deer stalkers have experienced the poorest time fcince licenses were first issued. Occasional stags have been on view hitherto from almost the opening day, but this season not a buck has been grassed with a head worth exhibiting. Stags are pronounced to be jjarticnlurly scarce oi> this mete of tho mountain, and it is presumed all the good heads will have lo come from ths back forests in future. Several parties will be in camp durintr the coming week, when nc doubt kills- will be more nuraeroup. ' Spik?rs ' have increased wonderfully since being protected, and hinds ara getting more numerous.