MAGISTERIAL.

South Canterbury Times, Issue 6268, 15 July 1890, Page 3

MAGISTERIAL.

TlMA.RTJ—Tuesday, J uly 15,

j (Before 0. A. Wray, Esq., E.M.) I CIVIL CASES. _ Judgment by default was given in the following oases :—M. Jonas v. T. Hampson, claim £4 18s 6d, (Mr Waite for plaintiff) ; Dr Maclntyre v. Welsh, claim 10s 6d ; Same v. Mattingly, £lO 12s 6d ; R. Or win v. H. Elgin, 10s 6d. Mahan v. A. White, claim £3 7s. Mr White for plaintiff, Mr Hay for defendant. This was a claim for payment of money improperly detained. Plaintiff is the master of the barquentine Jessie, defendant a coalmerchant, and the dispute between them is whether under the charter party plaintiff or defendant ought to pay for weighing a cargo of coal; the document stating freight was to be paid on the quantity of coal delivered, on the pit certificate or on ascertained weight on delivery. The defendant had the coal weighed, and he claimed that the plaintiff should pay the charge for this, and deducted the amount when paying the freight. There was also a counter claim White v. Mahan for £3 6s, the value at Newcastle prices of six tons of coal short delivered. Evidence was called as to trade custom.

J, B. Rutland said he bad had 15 years experience of the coal trade, and the charterer always paid for weighing, - but he had known the Union Company to pay for weighing cargoes brought in their steamers. A. White, defendant, had no actual experience from which he could say what the custom was. He had always charged weighing to his own ship’s expenses. He also gave evidence as to what took place at the settlement. He charged the weighing against the ship, and deducted the value of six tons short delivered. Captain Mahan objected to being charged with the weighing and he (plaintiff) then said he would knock off half the claim for shortage. He understood the Union Company always paid for weighing coal. J. Ralph, clerk to defendant, who took part in the settlement, gave similar evidence. He had no experience of the custom on the point in dispute. E. Smith had chartered vessels from Mr White at "per ton weighed, and Mr White paid for the weighing. The Union Company always paid for weighing. All the Newcastle coal brought here by the Union Company was brought for him, not under charter for whole cargoes. He paid on weight delivered and the company paid for the weighing. They must weigh as they distribute a cargo among several ports. It would be the same under a full charter.

J. Jackson, who had had 25 years experience, considered that as the weighing was for the consignee’s benefit he should pay for it. In one way it seemed that the consignee must pay if he wanted to know the weight, for ihe weights would be given to the shipowner otherwise, and the consignee would be no better off. The charter-party gave the charterer the option of taking the weight by pit certificate or by weighing. The option should have been taken before the cargo was touched, and if the charterer elected to weigh the ship should pay for it, but need not give the truck weights for distributing purposes and the consignee must weigh again. If the captain, as alleged by defendant in tl.is case, asked the charterer to get the coal weighed for him, he took the responsibility and should pay. Hia Worship reserved his decision. S. Clegg v. Mrs J. Herbert claim £4, 14s 6d. Mr White for plaintiff, Mr Raymond for defendant. This was a claim for an old debt for a saddle and bridle, and defendant sought to make out that the saddle was bought by and for a servant of hers, she being present merely to guarantee payment for it if needful bub no guarantee was required. Mr Clegg stated that the saddle was sold to Mrs Herbert and not to the man. He had several times asked for tho money and had never heard the present defence till a week ago. Anderson, an employee of plaintiff, corroborated bis evidence as to the circumstances of the sale. Mrs Herbert bought the saddle, with the advice of her man Collins. Defendant stated a man named Peter Collins bought the saddle. Collins asked her to give a written guarantee hut she refused, saying that she would guarantee the man bis wages, and do no more. She did not want a man’s saddle. Collins left her service shortly after, was paid off in full, and he took the saddle away with him. She denied that she bought the saddle or selected or touched one. Mr Clegg had no authority to book the saddle to her. Plaintiff had never given her an account in which the saddle was charged to her. His Worship had no doubt that the credit was given to the defendant and not to the man. Judgment for amount claimed, less 8s for a small contra. . Barber v. McClellan claim £4 13s. Mr Raymond for plaintiff, Mr Hay for defendant.

This was a claim for 93lbs butter,' at Is per pound, sold 21st June, for which payment was refused on the ground that it was not the sort bought. The plaintiff, a farmer at Orari, showed that he sold butter to defendant as fresh, and defendant took delivery of it. A few days afterwards defendant railed the butter back to him and sent him a post card saying he had dona so as it was not “ fresh ” butter, as sold. Did not touch the butter on return and it still lay at the Orari station. Nothing was said at the sale about quality. Defendant said he know witness’s brand, and that the butter was good, and offered to buy it. To Mr Hay : Had had many years experience as a dairyman. Had 20 cows in milk ; had also some salt butter at home in kegs. The butter delivered to defendant was wholly fresh,; contained no admixture of salt butter. The defence was that the butter was bought on condition that it was fresh butter, and the butter as delivered was mixed with salt butter, tasting of the brine and the wood of the keg.

S. McLellan, confectioner and biscuit baker, the defendant, said he bought “ fresh ” butter, that being butter only a few days old; salted butter made up again was not “fresh,” was not what he wanted, and was worth only 7d or 7|d. The butter delivered was not fresh, but salt butter, and not good either. It all presented the same appearance, as if all made up at the same time. Sent it back,and by postcard notified Barber be had done so. To Mr Baymond : Had bought Barber’s butter iu the auction room before that, at Is a pound. It was the same sort of butter, u mixture, or made, up salt butter; it was not a good butter; knew that was salt butter. He bought the 931bs at Is as fresh. This parcel was not oven as good as he had bought at auction. W, Bloomfield, baker at defendant’s, heard the bargain for “ fresh ” butter, and the butter delivered was not fresh, but greasy and “ woodified.”

To Mr Baymond •• It was not fresh gone bad, but salt butter made up into pounds. W. Thompson, a grocer’s assistant, happened to see the butter in defendant’s shop, and was asked his opinion about it. He had seen salt butter made up, and that was what this was—greasy in appearance, tasting of the salt and the wood, .and rank in smell. Had been acting as butter buyer for his employer; had never bought such butter as fresh. It might be mixed, not all salt butter, but there was some in it.

Mr flay said if any article is sold on any sort of warranty the action must be by suit for breach of warranty, but if sold on a description, and the article does not ans wer the description, the buyer may reject it. His client agreed to buy fresh butter, and fresh bu'ter was not supplied. Mr Baymond asked His Worship to believe the plaintiff’s statement that he churned the whole of the parcel the same week, and the description used applied. The bargain was one in which the buyer took the risks, and the defendant if he had any right at all to reject, let it slip by the neglect to do so promptly. His Worship considered defendant must suffer. Ho had failed to prove that the butter was salt, and it was more probably fresh butter of inferior quality. Defendant had bought similar butler before, and ought to have examined this before buying, and certainly was neglectful in not sending notice of rejection sooner. Judgment for plaintiff with costs. Two judgment summons eases were allowed to stand over.