WAITARA REGATTA.

Taranaki Herald, Volume XLIII, Issue 9950, 10 March 1894, Page 2

WAITARA REGATTA.

This popular fixture will come off on the Waitara River on Thursday next. Tho entries received for the various events arc better than last year's, and there is every prospect of keen competition. The railway authorities have promised the usual Bpecial train from New Plymouth, aud also to charge excursion fares from Huwera and Stratford, this latter concession being made for tho first time in tho history oi the Rogatta Club.

DISTRICT COURT-Civil Sittings. Feuruaky 28. — Before District Judge Kettle. W. B. Davies v. J. Preston. Claim for £30, breach of contract, and 12s 8d balance of account. Mr Kerr appeared j for plaintiff, and Mr T. Shailer Weston for defendant. Mr District Judge Kettle delivered judgment in the above case on March 8, as follows: — The .plaintiff is a produce merchant, carrying on business at New Plymouth, and defendant is a farmer, residing at Eltham, some 38 miles from New Plymouth. On Bth April, 1893, the plaintiff agreed to purchase from defendant a crop of circular head potatoes — estimated at 30 tons — then growing on the defendant's farm at Eltham. The plaintiff was to provide sacks and he was also to pay the railway freight from Eltham to New Plymouth. When the agreement was made, the plaintiff at the request of the defendant wrote the following letter: — "New Plymouth, Bth April, 1893. — Mr James Preston, Eltham. — Dear Sir, — I will give you three pounds per ton on trucks at Eltham for your prime Circular Head potatoes, to be delivered in 60 sack lots — all to be delivered three months from date. — W. B. Davies." The agreement between the parties is silent as to payment, and it is laid down in " Benjamin on Sales," 3rd edition, 581, that " the general rule in executory agreements for the sale of goods is that the obligation of the vendor to deliver, and that" of the buyer to pay, are concurrent conditions in the nature of mutual conditions precedent, and that neither can enforce the contract against the other without showing performance, or offer to perform, or averring readiness and willingness to perform his own promise." Again at page 667, *' Where nothing has been said as to payment, the law presumes that the parties intended to make the payment of the price and the delivery of the possession concurrent conditions. The vendor cannot insist on payment of the price without alleging that he is ready and willing to deliver the goods ; the buyer cannot demand delivery of the goods without alleging that he is ready and willing to pay the price." Again at page 697, "The chief duty of the buyer in a contract of sale is to pay the price in the manner agreed on. The terms of the sale may require, Ist, an absolute payment in cash, and this is always implied when nothing is said." Under the contract between the parties, the place where delivery is to be made is not expressly stated. The contract states " Three pounds per ton on trucks at Eltham" as to the place where delivery is to be made when nothing is said about it in the bargain, it seems to be taken for granted almost universally, that the goods are to be at the buyer's disposal at the place inhere they are when sold. (Benjamin, 673). Again at page 690 " When the vendor has tendered delivery, if there be no stipulated place, and no special agreement that the vendor is to send the goods, the buyer must fetch them ; for it is settled law that the vendor need not aver nor prove in an action against the buyer anything more than his readiness and willingness to deliver, on payment of the price." In pursuance of the contract, the defendant put on the trucks at Eltham 15 tons' of potatoes, viz : 4th May, '93, 5 tons ; 13th May, 5 tons ; and Ist June, 5 tons ; and the defendant paid for them. On 19th July, the defendant sent the plaintiff the following telegram :—": — " Eltham, 19th July, '93 — W. B. Davies, New Plymouth. Send full account to date, including 60s .commission on McMahon's potatoes, cheque for full amount including five tons now on trucks. — James Preston." At the time this telegram was sent the defendant had put 5 tons of the circular head potatoes on the trucks at Eltham. The plaintiff replied that he would only pay for the potatoes at the New Plymouth railway station. In giving his evidence the plaintiff said : '' I would not pay for the potatoes at Eltham on any consideration." The defendant kept the potatoes on the trucks at Eltham for two or three days, and as the plaintiff did not pay for them the defendant took them oil the trucks and sold them to. a storekeeper at Eltham named Wilkinson ior £3 a ton. On July 25 the defendant wrote the plaintiff as follows : "Eltham, July 25, 1893. Mr W. B. Davies. Dear Sir, — By Saturday's morning train I shall consign to you three sacks, containing empty returns. [This refers to the 60 sacks which the plaintiff had sent out on 15th July.] You have charged 5s and 4s 6d for wheatmeal — why the difference of 6d ? If you go through your account you will find an error — kindly rectify. I shall not send you any more potatoes for the present. Yours etc., James Preston." On 28th July, the defendant ported the following letter to the plaintiff. The letter is incomplete, and the plaintiff swore — and he was not contradicted — that tho letter was incomplete Avhen he received it : " Eltham, 26th July. — Sir, — I have made up my mind for peace sake, I will give what potatoes I have to spare, prodding that you will pay for them when they are on the truck. Send the bags on this condition. You may send Gosacks,not that your threatening and talk." The plaintiff received this letter on 29th July, and on 2nd August, he sent out 60 sacks, but did not send any money for the potatoes. On 14th August, the defendant sent the plaintiff the following telegram : "Eltham, 14th August, 1893. W. B. Davies, New Plymouth. — Wrote you August 4th for sacks ; none in hand ; will not forward potatoes. — J. Preston, Eltham." To this plaintiff replied as follows :—: — "New Plymouth. 14th August, 1893. Mr J. Preston, Eltham. Sir, — The sacks were consigned to you in the usual way on 2nd August. The railway books show it, so you will please apply to tho station at once for them, and send me the potatoes. If they (the sacks) are not there wire me to-morrow and I will send you ■ 60 more by 4 p.m. train. I must have the potatoes as I sold some of them four weeks ago. Please reply by wire at once. — W. B. Davies." Not having received any reply to this letter, the plaintiff wired to defendant on 18th August as follow* : — " New I Plymouth, 18th August, 1803. Jas Preston, Eltham. No reply received to letter. Proceedings will be taken against you after to-morrow. — W. B. Davies, New Plymouth." On the 22nd August, Messrs Standish & Kerr, acting as solicitors for the plaintiff, posted the following letter to ihe defendant. It will be noticed that the letter is dated 27th July, but it was admitted that it was not despatched to the defendant till 22nd August. [A letter from Messrs Standish & Kerr on 27th July, calling on Mr Preston to fulfil the conditions of his contract, and also Mr Preston's reply to same on 22nd August, and a letter from Mr Govett, as solicitor for the defendant, to Messrs Standish & Kerr, offering S)s 8d in settlement of -account, were read.] This closes the correspondence between tho parties. The plaintiff then commenced the present action, in which he claims £30 I damages for broach of contract, 12s 8d : balance of account, 3s for telegrams, and Is 6d for railage of sacks; in all, £30 17s 2d. With regard to the account annexed to the statement of claim, tho only item disputed by the defendant is the one under date 6th May, 1893, " Cash paid, £6." lam satisfied from the evidence and surrounding circumstances that the sum of £6 was paid by the plaintiff to the defendant, and I therefore allow it. As to tho claim for damages for breach of contract I am of opinion that the plaintiff has not made out a case. To put it shortly the defendant in effect said : " You can have the potatoes at Eltham on payment of the price to me there." Tho plaintiff replied in effect : " No, I maintain that lam only bound to pay at the railway station, Now Plymouth, on arrival of the potatoes there." I think the defendant in taking up the position he did was acting strictly within his legal rights. According to the true construction of the agreement, Eltham was, in my opinion, the pluco for delivery, inspection, and payment, and as the plaintiff was not ready aud willing lo tako delivery and pay at Eltham ho cannot recover damages in the present case. The receut decision, of Perkins y, Bell

(Law Report, 1, Queen's Bench, 1893 p. 193, in Court of Appeal) seems to me to | be a strong authority in favour of the > defendant, the facts being very similar to ; to those in the present case. The plain . tiff is entitled to recover the 9s 8d offered ': by Mr Govett in his letter of August 30; : but the defendant must be awarded his ' costs of this action, to be fixed by the Clerk of the Court. Judgment accordingly.