A SHEEP DEAL.

Timaru Herald, Volume XIC, Issue 13460, 5 December 1907, Page 7

A SHEEP DEAL.

CLAIM FOB DAMAGES.

At the District Court yesterday, before his Honour Judge Hazelden, the case of H. Woodley v. J. and N. Campbell, claim £SOO damages for alleged breach, of agreement -was heard. The caae wa* taken before the following jury:—J. H. Coombs, W. Mc-Cbtchy, K. H. Naysmith, and R. G. Tate.

'Mr. S. G. Raymond appeared for plaintiff, and Mr. Hosting, of Dunedin, with him Mr. Rollc-ston, for defendants. Mr. Raymond said his client was suing for £SOO damages for breach, of agreement by defendants to properly look after 3,'C00 lambs which Mr. Woodley had purchased in October, 1906, to be delivered in February, 1907. '. Plaintiff held that defendants had not looked, to the contract, which stated that defendants were. to look after the lambs sus though they were their own, shifting them when necessary, and in consequence of this failure the lambs had. depreciated in value, and plaintiff refused to take delivery in February.' Defendants admitted making the contract bub denied the allegations regarding neglect to look after the lambs and denied they suffered depreciation. The contract price was 12s 3d per bead, and; when defendants sold tlie lambs tliey brought) 4s Id per bead, causing a loss of £I,CQO to Campbell, who recovered this from Woodley, who paid under legal advice. Woodley bought the.-lambs at auction and made a profit. It would be shown from correspondence' that Woodley had complained to Campbell about the way the lambs were going back. Two experts : had inspected the lambs with Woodley and found them in. poor condition—in fact they were going back every day and the land at Raukajraka was overstocked. The dry weather had r affected sheep all over the district, but plaintiff submitted .that Campbell's 'pasture was better than that of other people and feed cauld easily have been purchased. - It was a-question for the jury to decide- whether there was a breach of. contract by Campbell not looking after the lambs according to agreement and whether it was Woodley's place to take delivery of the lambs in February when they .we're not fit for freezing, a.s he considered .fully 50 per cent. sh.cu.ld have been fat by this time. : The claim for £500.-was a" moderate one, as.'plaintiff had, on the advice of his solicitor, paid Campbell ~£l;0GO for what ha had lost by the forced sale of tha lambs.' which Woodley himself ; had bought and on which he bad made a small profit. ' ' l'\ ' '': . : •/■- \ : i Henry Woodley, plaintiff, stated that early in. - October 1906,0n the advflce of Mr Bruce of the National Mortgage Company, he went to Raukapuka to inspect some himbs. He estimated l that there were 160 CI or 1700 wes: ; with' lambs running there. Understood Campbellj to mean that more than half of the sheep were there and the balance :at Woodbury. Inspected • bath lots in October.' Plaintiff gave evidence regarding the acreage, of the faims and the cropV on them at .that time. Defendants knew that he wanted the lambs for freezing, and 50 per cent, fhould have been fat by February.' Used to go over, .pud- look at the lambs, at Geraldine on sale_days,' and feeingthat more sheep had been put on the farm said to Campbell that the lambs' would go short, and the latter afterwards shifted Some of the she?p back to. Woodbury. As the lambs were visibly going back he wrote ,-to Campbell ,'about it, on December 22nd, and also spoke'to him in January, when C.yripbell expressed regret. The --'lambs were, in fact, starving. On February Ist the date for delivery, he declined.to take them. Received notice that the lambs would.be: sold if he did not take dteb'very. They were ; eol<l on. .the 6th and-he bought most of them afc 4s Id, fattened 'them, made a profit, of £276- If' fat on the l£t they should have been worth 15s each.; In. reply • to' Mr, Hosking, plaintiff ■-..' described- his own "farm" at Orari,. where, he sent to. the works 300 tat lambs in January. He hired some . feed .for his dry sheep while the drought was' on.'There was no"' suspicion of drought, when he •bought' the lambs, and feed was then plentiful. The drought, broke lip in February. He admitted that feed was : difficult to get. He thought defendant might have met the case .by, hiring feed or reducing his..stock; he could not say where, but he had tlie same chance as others. Asked why the' action was btf.ed •on breach of contract to "shift" the sheep plaintiff said that shifting" imeant removal (to where there was.. feed if necessary). Some questions were asked 'about a - ...yisife to Raukapuka by R-Catherwodd 1 . Plaintiff denied that he hinted to Catherwood that he wished to pick a quarrel' With Campbell aiiid • get : out of the 'bargain. First complained about the overstocking in November, and again, in December. Campbell on the second occasion said he did not know where to get feed. He (plaintiff)- was riot trying to get out -of the bargain., and said he would take the lambs if he could get a rebate in price.' Went to Campbell with 'his drovers on February Ist, but there were no -sheep In the yardls. .Did not know that 'Campbell was at that time rounding up the lambs. Waited in Geraldine'two hours; for Word "from Campbell; Saw Bruce, the agent, who; did not tell him the sheep were ready . ■--''• In- : reply to Mr Raymond, plaintiff stated I 'that he paid 2d per head per" week for feed, and could have got more feed at that rate. ' On the day ■ of delivery would have taken the lambs at a rebate, or failing that, under protest. A., Bissett gave evidence regarding- an inspection of 'the lambs on 15th January, with plaintiff, and Leech, and", found those at Eaukapuka doing very badly, those at Woodbury looked better. Under the circumstances would not have allowed lambs of his own to (remain at Raukapuka. Believed', feed could have been easily obtained; got some himself at They also went tp. Raukapuka on the day of delivery, but finding no lambs in the yards and! not being able to find Campbell, Jhey came away' again.. .On 6th February, the day of the sale, Ohe lambs were very backward, and the price realised was all they were worth at- that time. '

To Mr Hosking: Sheep could live on' water without feed .for a; considerable time. ; - Many farmers suffered ; through shortness of feed last summer, including himself.' He discussed the condition of the sheep wi h Campbell, but could not remembar saying that what he would say would do Campbell no harm. R. Leech, farmer, ; Fairlie, also .gave evidence regarding the condition of the" sheep and the shortage of feed last summer, and this concluded plaintiff's case.' At 4 p.m. Mr Hosking formally moved for a non-suit. The first point of the defence was that, in the previous action, the carrying out , of the conditions of agreement by Campbell had not been denied by Woodlev, who had paid the claim of £IOOO. It * was therefore plain that plaintiff was now 1 stopped! from caying that Campbell did not carry out his agreement.. ; There was practically an admission that the terms of the contract were carried out, and there was no evidence against defendant to put to the jury. The contract implied that the lambs were to be fed on plaintiffs land only, and not anvwhere else. "Shifting" simply meant shifting from one paddock to another. The last clause made this obvious, as Canrobell was bound not to put ether sheep on the same land, and this meant that the land referred to was defendant's own A suggestion had been made by

plaintiff that the sheep should be sent uwav, but if this had been done defendant might still have been liable for depreciation. The nisk of the reason was jthe buyer's risk, as he had' bought in October and paid for their feed till February on grass which he then calculated was sufficient. The hoggets might have • been reduced, and they belonged to Woodley, unknown to Canrpbs'l. There was no other suggestion of breach of duty, except, perhaps,, an id-sal duty for which defendant could not be bound to observe.. His Honour desiring to hear more evidence,

John Campbell, one of the defendants, •was called. ,- He described the farms, the otock on them, and the season. He heard no complaint until he received a letter. Neither plain'iff, Bissett, nor r.'eech made any remark to him about the lambs on their visit, nor any suggestion as to what could be done. He could 1 not have done more if the lambs had b£en his own, and he sold some of his own tci make more room for them. Was certain no more feed could be obtained in-the district, and it would do harm to lanfco to travel them very far. Some of the. lambs, .after being sold by auction to Woodley, were subsequently bo-Tight by witness." Before • Februaiy there were probably 800 or 900 of the lambs fat. Mr Raymond cross-examined as to the area of feed, and the sheep on it during the pariod of the bargain. The Court had adjourned for lunch, and adjourned again! for dinner, and re--' -sumed at 7.30, when ■ Mr. Raymond resumed his cross-examination.: :

Defendant said some of the lambs bought at the -sale by Woodley at 4s Id were afterwards bought by wi'taiess at 17s to -18s. At the beginning of February first and .second-class lambs were -worth 12s and 14s. For the lambs disposed, of at the first sale higher prices Could have been obtained if they could : have been got away to the works■;at once. , ..'..-■ lib Mr Hosking: Lambs ,when once fat would soon goi" back; if ithey 'got.: a •check, such ' as dry weather. '.He ..had written asking Woodley if he would approve of weaning some of thei Ittmba ..to enable them to be ahifted,: from* the ewes to other pasture. ; [.'. H. McKay, shepherd for. Campbell Bros, gave, evidance" relaitiing. to ■ some points mentioned by other witnesses. He never heard of any complaint from Woodley, as to '• the way in which ; the lambs were looked after and "everything had been done to safeguard them: In other details he confirmed F. Heron, .a neighbour of defendant's at Geraldine, .said Campbell had better. feed than he had. He diicj not know where feed could have, been got. Thought the' lambs looked.well, and that 39 or 401 per. cent, of them could have been sent away as faits. ■>, ■>.' .. .'..■-...■■-.

D. JdeLeod, farmer,' Geraldine, said that had the season been_ an ordinary one Raukapuka would not have been 'heavily' stocked. He gave some , evidence' of the difficulty of .obtaming pasture, and water, the value of the land and! Its' carrying capacity. .-.-." . V - - . A.' W. Kelman, junr., farmer, Geraldine, another neighbour gave similar evidence'. V Most of the lambs jyere fat; in December and January. The dry" weather caused, a drop in prices owing to people rushing stock on/to the market. ; : , C?. Mackenzie, another Geraldine farmar, was called to show that he bought 500' of the lambs at the. sale'in. February, at Bs"6d,.- and sold 'SO- of them at 9s 6d ' on the same day. A few days later-sold 205 to the works for freezing, and these' were in good condition,' although not on good feed after he bought them. , He. thought it w ; ould not be prudent 'to. tativeil... young lambs' during the 1 , drought. To Mr Raymond: As a dealer was on the look-out at the -sale in February, for good lots and. the lot lie purchased from .Camp-bell were the best. During the drought he bought 11 acres of feed on 'which he put 114 «heep. | . Tliis concludiiig the evidence;, .co'imisel for both . sides intimated .then- wish .to . address iih&- jury hi' the morning. - ,Mr Hosking a?:ked for a ruling from. His ! Honour as to' whetlier tlie .''shiffing" mentiohed.- -in the ■ conta-aot. meant- : that . the • sheep were not to leave. r the property. His Honour" ruled that' the contract did. not ..debar . defendant shifting., tlie to wherevei- he wished. Mr'Hoskiiig.-sadd it was never contemplated that..the neces-., sity would arise 'and His/ Hpnpiii" concurred 'in th'is,. Viand stated .'.that, in his i opinion there was really .only one point for the jury to decide aridT that was as to whether 'defehdant; had/taken reason-., j able caxe of the sheep. '... . I

It,was decided to. resuime ;.at 10 a.m. this ' morning when counsel' will address the jury: •.'.-■..•,- ■_.;.'■-•.'.:.-'.;. /■'-,-,