Resident Magistrate's Court

Southland Times, Issue 9351, 18 October 1886, Page 3

Resident Magistrate's Court

Friday, 15th October

(Before H. McCulloch, Esq., R.M.)

UNDEFENDED CASES. In the following cases judgments were given for the plaintiffs by default : — John Ayeen v. Frank Henderson (Thornbury), L 27 16i 6d ; costs, L 2 4s 6.1. —D. Roche

v. Sarah Mitchell (Wyndliam), L 3 on a dishonoured cheque ; coats, LI Is 6d.

DEFENDED CASE. Thomas Black (Lumaden) v. J. G. Ward. — Mr Macalister for plaintiff and Mr Russell for defendant. — Claim, L4O 2s 2d, balance due for oats sold. — Thomas Black stated that on the 28tb August ne got samples of bis oats from Carswell, White and Co. The samples were of two qualities of oats, and he took them to defendant who offered to give him 2s for the good quality and Is lid for tbe inferior, and take the lot 840 Backs. Defendant would not buy the inferior lot separately, as it was in consideration of getting the good oats that he would take the lot. He said he would not buy the oats without seeing them, and he said he would see them, and take delivery within ten days. Witness left town that day, and authorised Carswell, White and Co., who wore his agents in the matter, to deliver the oats and settle with defendant. Defendant would only take delivery of the good oate, 877 bushels, and the rest, part of which were at the Bluff and part in Invercargill, had been rejected. . Since this he had taken samples of the oats, which he produced. — Hugh Ferguson stated that the samples he gave plaintiff he had taken from twenty-two bags in Carawell, White and Co.'a grain store. —G. W. Nichol stated that the samples taken by plaintiff of the rejected oats at the Bluff were taken from bags branded TB, and lying in his store on account of Carswell, White and Go. The samples produced in Court were not unmarketable as oats ; they wonld pass aa very inferior feed oats. — J. H. McGaw, accountant for Carswell, White and Co., stated that theie had been 248 bags of oats belonging to plaintiff in their grain store, but there were now only 38 bags, averaging: 4 bushels each. i His firm, who were actiag as agents for plaintiff in the matter, bad delivered 210 bags for which they had been paid ; the oats having been sold, f.o.b. Previous to delivery witness showed defendant a sample of 38 bags which were inferior to the bulk. He wonld not take them but accepted delivery of tbe rest. Defendant told him tbat he bought tbe oats subject to saoipliog and had power to reject what was not according to cample.— Plaintiff (re-called) stated that be told defendant that there were about 210 bigs of the best quality of oata and 37 of those inferior, in Invercargill, and 585 bags at the Bluff, making about 3300 bushels altogether. Mr Ruseell [submitted that there was no case against the defendant as the oats sold were to be according to plaintiff's sample, whereas the oats now in dispute were not equal to tbe sample. — J. G. Ward, the defendant, slated tbat when plaintiff showed him the samples he offered him 2s per bushel for the best quality of oats, and la lOd for the inferior lot, f.a.b. The terms were to he net cash, and he referred witness to Carswell, White and- Co. aa his agents who were to deliver the oats and receive payment. Plaintiff said there would be between seven and eight hundred bags, about 200 bags of very good quality. Witness bought by the cample and said he would try to take delivery of them in about ten days. The bags, he told plaintiff, would have to be sampled as they were being put on the vessel at tbe Bluff. When Mr McGaw showed witness the sample of 38 bags of the oats he would not take delivery, as they were inferior to the worst sample shown by plaintiff on !the-firßt^obpaai6nV'\"He'°had'paid Carswell, White and Co. for ;754 Backs; one penny . ber bushel^ being taken "off those charged at;la lid,; ails lOdwas^ the price agreed 9s*; <*?*•• #» BOQQqd aa^ity; J Witnew

h a<r™W"ta«§ria^le^^ oats lying at the Bluff ; ftnd at Invercargill, and on comparing them.with the sample shown by plaintiff to him at first, these were much inferior. Witness had all the oats that he oonld have disposed q*f and what he rejected he would not have shipped at all.— -Thomas Fordham and John Wilson gave evidence as to the sampling of the oats. — Walter Henderson I examined the samples of the rejected oats produced, and stated that none of them were equal to the sample by which the oats were sold. — Thomas Horder stated that they would sell as inferior feed oats. — Mr Macaliater said thai it bad not been proved in evidence that the oats were sold as per sample, and that' they were not warranted to be according to the sample. He contended further that tbe oatß had been bought in one lot "and that the defendant would either have to take them or reject the lot.— Mr Russell contended that the plaintiff produced the samples on jselling as a- fair representation of the oats and he was^bound to supply oats, according, to the sample.— His Worship said the evidence had gone to show that "the oats were not merchantable ; they would do aa' inferior horse feed, bat they were bought as good marketable oats, and good price,' la lOd and 2s, haying been paid for them. He would reserve judgment.