WHAT IS A DAIRY COW

Stratford Evening Post, Issue 15, 3 October 1929, Page 2

WHAT IS A DAIRY COW

IS CALVING TIME A CHIEF FACTOR I magisterial comment. In the Stratford Court some time ago Thomas A. Rowe (Mr Chrystal) sought to recover £G9 3s 6d from Lochheacl Bros (Mr as damages in respect to the sale o him by defendants of certain dairy .'cows which he alleged should have i c alved reasonably early in the milking season of 1928-29, whereas the cows did not calve at all or calved unreasonably late. After traversing the facts of the case, Mr R. W. Tate, S.M., in his reserved judgment, dealt with the contention of the plaintiff. “That a dairy cow is a co\V that is in calf and will calve in a reasonable time.” “That, ’ said Mr Tate, “is not quite how the plaintiff’s case was first put. The contention originally was that a dairy cow was a cow in calf that would calve in the following spring. I think that the plaintiff means the same thjin.g—spring being, in his view, the only reasonable time for a dairy cow to calve. In interpreting the term ‘dairy cow’ in the sale note the Court must apply to the term its plain ordinary and popularsense, but evidence 1 of usage may •be admitted to explain a term which is prima facie unambiguous and to ■' supply, as it were, the mercantile dictionary in which to find the mercantile meaning of the word which ris used.

PLAIiV meaning of term. ; “As to the plain, ordinary and popular sense of, the word, I can find no definition in any standard authority of the word ‘dairy cow, and I think that the ordinary and popular meaning of the word ‘dairy cow’ probably goes no further than 1 a cow from which the milk supply iof a dairy is obtained. This postulates that any cow of whatever breed or sort is a dairy cow if she contributes towards the milk supply of a dairy. It is common knowledge that apart from draught oxen, cattle are divided into two great classes, dairy cattle for the production of milk and beef \‘attlfel for the production of beef and the tendency is to develop the characteristics of certain breeds so tliat •some become more exclusively dairy ’cattle and some more exclusively beef cattle. How far that development has gone I do not know r—there was no evidence on the point I—but I find the term ‘dairy breeds of cattle’ i g used in the Encyclopedia Brittanica under ‘dairy’ aqd various breeds are discussed, in the same work tinder ‘cattle’ as milk producers and beef producers respectively. The time may come, and possibly may have arrived, when the term ‘dairy cow’ will ordinarily mean not merely a cow contributing to the milk supply of a dairy, but also a cow possessing characteristics more suitable for producing milk f than those of a cow suitable for producing beef cattle. That, I thim.k, is the ‘type’ Mr Richards spoke of. He said that dairy cows may be empty or in calf; that an empty cow, dairy type, is a dairy cow. A daify cow meant to him an animal capable under proper conditions of producing milk or of producing young stock which should be capable of producing milk. The plaintiff carries the definition much further. Not only in his view must -the animal be capable of producing milk, but it must be capable of producing milk in a certain limited time. It must be a cow in calf which will calve in a reasonable time, not a cow of a certain type, nor a cow possessing certain characteristics, but a cow* *4 a certain condition—-in the condition of being due to calve in a reasonable time. ,1 cannot find that this is the plain and ordinary meaning or the term ‘dairy cow.’

USAGE. "Nevertheless, it might he that usage might supply the plaintiffs meaning of the term. The evidence lo prove usage must he clear and convincing—it must also he consistent, The evidence of the plaintiffs ■witnesses, most of whom were stock salesmen, must he taken as an attempt to prove that there is a custom or usage that ia. Taranaki, at any r aie.. a 'dahy cow 1 is a cow in tali a s cor (ended hy the plaintiff. Mr McCullough said that dairy cows are cows served and held to hull to come into profit in early spring—latest date October. But Mr McCullough’s definition is not consistent with his sale note which was ‘2O cows, dairy, at £B, and one cow at £5/ All 21 cow y had been put ain t d he thought they would all calve jin natural course. The one cow (obviously the defective cow) is on his definition, as much a dairy cow as the others. Ho did not explain

the difference in his description.) Undoubtedly it can only he because the one cow was defective, not that it was rapt expected to calve. I gather from plaintiff’s evidence that It dip calve. Mr Cathie, another stock agent of the same company and Mr Williams, its manager, and the plaintiff had substantially the same definition —a ‘dairy cow’ is a cow coming into profit, that is, to calve in the spring. Of the defendant's witnesses, Mr Williams, a stock agent of Newton King, Ltd., said that a dairy cow» is a cow to calve at any time of the year or a cow in milk is a dairy cow. Further, he said that his company expected a dairy cow to he in calf. This seems to me to be inconsistent, a cow in milk may he an empty cow. The remaining witnesses for the defendant (other than tlxe defendant, H. M. Lockhead, who held the same views as they did) were five prominent farmers, and they were unanimous that the term ‘dairy cow’ does not import that , she is in calf, and most of them had never heard of the plaintiff’s .contention, that a ‘dairy cow’ must he a cow in calf. Messrs Walter, Cresswell and Richards, agreed with Mr Williams that a cow in milk is a dairy cow. I cannot find that the evidence in support of usage is either clear or convincing, and must hold that such usage ha s not been ' proved. Nor can i liipl that the plain ordinary meaning of the word ‘dairy cow’ has the meaning attributed to it by the plaintiff. I have discussed this contention at what may ho consideerd inordinate length for the reason that I am cosivincod that every farmer should realise that he must insist upon a warranty as to calving in certain months if ho want g the risk to fall upon thef seller and not upon himself as buy'cr-’’ -.iJiii®