RESIDENT MAGISTRATE’S COURT.

Temuka Leader, Issue 1522, 22 June 1886, Page 2

RESIDENT MAGISTRATE’S COURT.

Timuka—-Monday, Jons 21, IIS6, (Before John Ollivier, Esq., 8.M.) WARRING BROS, T. SIIORRT AND VAT OIL. Mr Aepinall with Mr Raymond (of White and Co.) for the plaintiff*, and Mr Tosswill for the defendants. This caae was resumed and concluded, the following baing the evidence taken (or the defendant!, and His Worship’s, decision l~ Julius Siegert: 1 am one of the defendants. 1 remember seeing Philip Wareing about soma pigs. In tbe beginning ef April ho cams into our store and asked if we were buyers of bacon pigs. I said “ Yes.” He asked how much a pound we were giving for them. 1 said I could net tell—l would have to write to Dunedin—and asked him to call again in three or four days. About that time he called again, and 1 had not got tbe information, Mr J. Wareing called afterwards, and I told him 1 could get 3d per lb for prime bacon pigs, but inferior lots would not do at all. Ultimately they agreed to deliver the pigs at 3d per lb. Philip Wareing said “They cannot be otherwise than good, they are pea fed.” I did not see the pigs, because I am oo judge of live pige. I said 1 would take 50 the next week, and a few days afterwards IT were delivered. They could only kill 17 in one day. They delivered them at the railway station. J. Wareing said the pigs were ralher flabby and soft when be delivered them. I eaid “ They can’t be prime fed, or they would be hard and firm.” He said it waa 00 account of the weather. The day before was a fine day, but the night was wet. 1 saw them at tbe etation, and told him they were inferior in quality, and would not pass at Dunedin, He said they should have hung another day, and they would get firm. I eaid they would never get firm, as the quality was not there, and drew attention to the greaae which was running from them, and that the inside was yellow instead of white. 1 accepted them on condition that they would pass in Dunedin as prime fed bacon pigs. On the same day I told J. Wareing; that 1 could not taka delivery of any more that week, on account of the Easter holidays. He said he had the pigs in the stockyard, and would have to put them into the paddock again. One of our men sent for me to the railway station on tbe 27th, and there were 24 pigs there. J. Watting said they were a little better, and I said soma of them were a little better, but they would not pass as prime pigs, and if not I would have to come on him. The pigs were then in the truck, and Wareing and myself packed them; They'were sent to Irvine and Stephenson, Dunedin, and they were returned to me as unfit for bacon. 1 got 12 more on tbe next day, and sent them to Wright, Stephenson and Co. They were soft, and I said if they would not pass I would come on them. I got s letter from Nimmo and Blair, and sent it to Mr Wareing. After delivery of the three lots Mr Wareing applied for payment, and I told him we had not the accounts from Dunedin, but that as,soon as I received them I would send him what was coming to him. The first lot was sent to Nimmo and Blair, and two of them to Mr Beawiok. The second lot was sent to Irvine and Stephenson and the third lut to Wright, Stephenson and Co.. When the 24 pigs came back on the 29th I had them cut up by my bacon-curer, and he found they were not properly cleaned, and some of them were putrid. There were clots of blood in them, showing they were not properly bled. I received the letter produced from Mr Aspinall, and made out a copy of the account aales from Dunedin, and enclosed a cheque for £SO 7s 6d marked by Mr Hargreaves, and gave it to Mr Aspinall. Mr Aspinall took tba cheque and the account without prejudice. It was afterwards returned. 1 took the cheque to the Court, and there got a summons. 1 have tbe 24 pigs yet, and will give them back if they pay the expense of curing them. The 20tb was fine, but it was wet at night. The 27th was a fine cool day, and the 28tb was misty foggy weather. 1 have had five or aix years’ experience in curing bacon, and passed £2500 worth of bacon through our bands. Demutb cured over 1000 pige last year for us. To Mr Raymond : I never saw Mr Wareing’s pigs alive. I am no judge of live pigs. Mr Wareing’s pigs bad a good reputation the previous year. I saw the pigs at the station, and said they would not pass in Dunedin. 1 sent them to Dunedin because be would not take them back. Mr Wareing had nothing to do with my transactions in Dunedin. Mr Wareing said they would come right, as it was the weather affected them. The weather was fine when they they were killed. I told no one they were prime. He told me the second lot would be better. I told him (J. Waning) the third lot would not pass. 1 told him if they did not pass 1 would come on them. If the pigs had passed I would have taken 400 from them. I knew when I took possession of the pigs that they were badly killed. I sent two lots, Wareing’s and McShane’s. McShane’a passed, and were better than Waleing's. W* have bad pigs hanging seven or eight days, and were still good. The reason I sent them to Irvine and Stephenson was because Nimmo and Blair would not have thorn. Nimmo and Blair wrote, saying they were not prime fed, I said lo Mr Wareing, “ I shall try another man.” I told Mr Wareing I would give him a cheque when 1 got the account sales. I thought 1 would make no loss because I believed £ could come on them because they were badly killed, and they were net prime. (Letter read referring to loss). I said the loss would be greet if we had to pay 31 when they only realised 2£d per lb.. We eelted the 24 pigs down after they esme back, I knew Lucas, and heard he wae * good man. 1 did not tell Mr Guild Lucas made a good job of the

pig*. I did not tell Wareing I took the pigs because I wished to stick to my bargain. (Letter read to the effect that defendants took the 50 pigs to show they stuck to ’ their bargain). It was on acc unt of the Eaeter bolidaya I did not take any more on the week the first lot wee delivered.

Mr Toaewill: Did Mr Wareing know . you were sending the pigs to Dunedin I The Court would not allow this question to be aeked, holding that it wil of material importance that the witness bad •aid the Wareinge had nothing to do #ith the transactions between himself and parties at Dunedin, and that the question did not arise ont of the cross-examination.

After the point had been argued to? •one time, Mr Tosswill called A, W. Gaze, who deposed that be was a clerk employed by Meeers Siegertand Tauvel. in April he heard a conversation between Mr Siegert and Mr Wareing. ' Mr Raymond objected to the witness giving any evidence, on the ground that ■ it had nothing to do with the case. The ; point was that Mr Siegert ought to have -: rejected the pige before taking delivery of them at the etation. Mr Tosewill contended that he had a " right to prove that the pige were mis* represented. He quoted from Law Journal, Yol. 23 Q. 8., page 102, the caae of R>md»l v. Newaom, from which it ap- - pearad that (ha plaintiff purchased a ’ carriage pole, which proved to be defe<« tive, and it led to an accident, and darasgas were‘given against the seller ' f ' thereof. He also quoted the opinion *'■-5 of Chief Justice Beit to show that"gdoth 4 must be fit for the purpose represented and merchantable. He held that Messrs ' Wareing Bros, sold the pigs as bacon pigs ; that they were not bacon pige, and that they were not properly killed. They ’ guaranteed them prime-fed bacon pigs, ; and thus gave a warranty. His Worship said that would have been a very good argument if Mr Siegert hid ■ i not taken possession of the pigs, but in taking possession of them) and attempting ' to sell them, he became responsible for" them.

Mr Tosswill quoted the caae of Jones v. Bright, in which Jones bought some ” copper sheeting for a ship, and a verdict ; was given in bis favor because the jßopper ; lasted only four months instead of four' - years, the time it ought to last. Thb 2 verdict was given w a breach of 'I warranty. " ' His Worship said the case did not apply, and referred to a judgment in which • it waa laid down that if the vendor ao'ted , without fraud, and in perfect igaoranne.f of the thing being unfit for. use; he waa ” not liable. [ Mr Toeswill said if evar there was fraud ' 2 it waa in this csss. The pigs were represeated as prime-fed bacon pigs, and they ' were not. He would prove they wertT-' neither.

His Worship said if be proved that it would be no good, as ha could not get over the difficulty that possession was taken of them.

Mr Raymond objected to any more evidence being adduced, on the ground ■' that it would be wholly irrelevant. I£ hia : learned friend could prove fraud, hit proper course would have been to briag a crone-action for deceit. Any evidenoelie could now bring forward would be quite irrelevant, and to go any further would be a traveaty of the caee. His Worship aaid he would hear further.;, evidence, but would atop any which wai - irrelevant. " ' • A. W. Gaze : The conversation 1 heard' wa« after the delivery of the first lot. His Worship said he could not receive that as erideuce. The delivery had beOncompleted before then, and what wae ! said could not alter the case. 1 Mr Toss will said it would affect the second delivery. His Worship held it would not. L Mr Tosswill argued that there wasfrand and that there, were latent defects i<r the pigs which could not have been seen ; they having been improperly killed. Hr would prove that they had not been properly cleaned but which war the cause of their 1 becoming putrid. Mr Raymond quoted a cate in which a man bought a carcase of a pig ffbfti a butcher and eold it again to another man. The pig turned out unfit £dr human food, but the mail who bohght t failed to recover damages frota the man who sold it. ‘ y

Mr Tosswill held there was no evidence of a warranty or fraud in tha case. Mr Raymond contended that in tha cases cited by Mr Tosswill the articles were sold for a specified purpose. : The evidence of Mr Siegert' showed that he said on seeing the pigs they were not fit for bacon and in spite of this he took them. If there was any fraud his remedy was a cross-action. He quoted the case of Kramersop v. Matthews, 31 Law Journal, to show where a dealer in meat was held irresponsible for latent defects in his meat. He objected to hia learned friend having any more to say. His Worship said he would hear 1 any evidence relating to the case. prior to possession being taken of the first lot.

Helier Fauvel: L am one of the defendants. I was present at a conversation between Siegert and Wareing, and! heard Siegert any “ Mind they atereallyprime.” He meant the pigs. They were then aliv#. Mr Wareieg said *•> They could not be otherwise ; they are pealed.” Mr Tosswill said he could prove they were not pea-fed and that it was a fraud, Mr Raymond said fraud, nullified the contract, and in this case the contract waa affirmed by tha defendant paying £lO into Court. The question of fraud should be settled by a cross-action for deceit.

Mr Toeswill wished to ask tbe witneas tbe condition in which tha 24 pige were when they came back. The Court refused to allow this evu dence.

J. H. Dickenson : l am a miller. Mr Tosewill : Do you know how these pigs were fed J " The Court refused to allow this. The evidence might do well if the defendants brought another action against the p]/amtiffs, but in this case it would col do> : After toms argument on this point, Mr Dickenson said he did not fenpw hPf fhn pigs wore fed. 7 ?':••• Mr Tosswill said he had done hifr best, but ho saw His Worship was against him, so he could do no more. •

His Worship said he had donf his host, but he was not with him. The 7witße«s said he did not think any "exception could be taken to the kiljing and dressing. It was the stopk ettlesnjpn gave evidence of bud killing, 7 Tjje defendants had an opportunity of : seeing thp pigs before they were but they dip not see them* ordtM to J-

«laogbter and deliver them, and they took possession of them, »nd no objection vru raised to them. They ought to hare rejected them before, taking delivery, nnd that would have given the plaint ffa an opportnlity of having them sold on the r own account. The . decision would be judgment for tbe. plaintiffe with costs. The Court then adjourned.