A DEAL IN OATS.

Timaru Herald, Volume CI, Issue 15448, 10 September 1914, Page 3

A DEAL IN OATS.

TWEXTV SACKS MISSING. QUESTION OF "USAGE. At the Magistrate's Court in Ti.naru yesterday a case of some importance, its aifect.ng grain sales, was heard when Jaines McAuloy, retired farmer sued ill-.- C.F.C.A.. lor the price of -JU tacks or oats li. - bs lM), »aul to liave Ikcu delivered bv plaint if to ;the defendant A~suciauon" Mr Campbell appeared for plaintiff, and Mr 1- E. Emcn for t!ie defendant.. Mi Campbell s-il ilie case could be vorv shortiv staled. In April la-t. the plaint ff sold 3>o sacks of oals to the defendant Association. He was living at Ma Waro at the time, and on loadin.; the first truck he j.-iu- 111 sacks into it' 1 The CF.C.A.. however said there was only 94 s-ek* in it when it reached their -.tore. Where the other twenty sacks had gone they did not know. hu*. plaintiff, having delivered them at Ma Waro, was entitled to be paid for them. Oil!.- thev were in the truck and consigned to* the C.F.C.A.. the latter became resnons'hle for them. Counsel quoted a "decided case in support of this contention. The Magistrate said it all depended on the term- of the contract. Mr Campbell said the contract was for o sale o:i trucks at Ma Waro. He called. * James McAulev. now oF Uleniti. but fonnallv of Ma "Waro. who said that in April lie sold his oats to the CF.C.A. (cop- of contract put in.) On April 11 he consigned a truck of -cats at Mia Wa-„ to the CF.C.A The Magistrate: "Was the original contract stamped? If not it cannot be put- in as evidence. "Under the St-.mp Ac I have to insist on this as it is n matter of revenue. A ili enssion took place between counsel and Hencli. and finally Mr Campbell agreed t ( -> adopt the Magistrate's suggestion that he should stamn the do.-umont if it was allowed in evidence. Witness continuing, s-.id he had no doubt but that he put 114 sacks of oats in this particular truck. On April 21 the C.F.C.A.. told him that, there were only 94 sacks in the truck, and the manager, r.f the Association told him that he thought the other 20 sacks must have horn stolen cither in Timaru or at Ma Waro.

To Air F'n.-h: "Witness raid he had told. Air Shtru-liff that some of the sacks contained 4iJ bushels, and others 41 bushels. lie remembered asking whether the eats arrived all right, and he asked for the tally of the first truck on the line He had before asked for the tally of a first truck of grain he had consigned. It was his custom if he har.pened t t ; be in town. Frank J?ne. Irboitrer. said lie helped plaintiff to load this truck of oats. T!we were 114 sicks in it. C. J.Lennon. railway clerk at Timaru said that when th : s particular truck arrived at Timaru he debited it up to the C F.C.A. as containing 114 sacks and the CF.C.A. had paid full railage on this number.

To Mr Finch: Witness got the number of sacks from Mr McAuley's note on the truck. The Hallway Department did not weigh the truck. If a discrepant y were lound in weights it was customary to apply for a refund. No refund had been made in this wise. Mr Finch . No. but it was ; pplied for as soon as it was found that the weight was short. Mr Finch said this was a fa so of some importance. He believed it was the first occasion on wh'ch it had been contended that grain buyers became responsible for grain they'bought from formers as soon as the hitter had put it on trucks :if country stations. As a matter of fact the buyer did not take any responsibility until he had an op. p::itun"ty of sampling a:;d weighing the grain, and that could only be when it arrived ar the store in Timarit or at the ship's side. All grain was bought subject to its liiMiijr up to sample, and it would be impossible for arain buvers to send men round t;: every flag station in ths district to weigh, and sample grain. It would be .shown too that this was not the usage. The defendant AssrraY., tion had no ■ rosnonsibilitv until thev to:,k chTvery. and when they did this there were o">\- 94 jacks. Viil-ntine Wilson, storeman for the C F.C.A.. said ihaf on April II a. truck of f-:>ts wis ro-eivoi! from Mr MV.\uIay.. at Ma M'aro. To-k it into the store on Api-fl ijo -.and f.;iir.d It contained f)-l savk-. The sacks were branded and everyone was in the store just as it came in. McAu.lev wont to the store a few davs later and asked for the tallv of U>e truck. Wiu>n S s { oo k him to the st-"k a*>d allowed hint to count fo<- h>>>iself Th<up wi-ro 04 sacks. Mir MeAuley s-id ho had trnc'.-ed 111. Witness rcpl e.l thai, onlv 04 had been received at f'-e store.

'lo ih> M.'-iisi rate : T)id not remember "-hot'io- the t->-i>in'ins were s.i.""im<-<-n the i-uck. as sor.i" sacks hnd bee- taken out. TU.\ m z ~ «f i] w {,,.,„.]< would i-re\-..-( il,|s (••■mi clii.wino- .a* ll.e oat, came level with (lie top" of the lriii'l<. Ar;hur Shrleliff. head of the «*rain <lepartment of the C'.F.C.A. --a'tl he received lie advice as to when the triu k „t oats would be sent down from VV' .".«••?„•»>• ihe. consignor. On April l> p.a.iifft told w:tiu«s that there were l»i) sacks short, and he (witness) inl vited pa.ntff to go to the store and count the sacks for himself. It was not usual for a farmer to ask for'a

return of the first truck of a consignment. Plaintiff told witness that there were 4.V and 4J bushel sacks in the truck. "If there were 114 sacks there v.ou'al only he 3 J bushels in a sack, judged b\- the total weight. r lhe C.F.C'.A. bought nearly all their, gram at country stations as farmers dsllked paying railage, and the settlement nearly a'.ways took place after sampling and receiving at their store in Timaru—sometimes at the ship s side. Tiie huver lock the respoits hility a iter having had the opportunity of sampli'im. taliving. and weighing. To Mr CainpU-H: Ezqv.y.ted the farmer to take the buyers' tally after they had received it into store. They took their storeman's tally. That was the first opportunity the.y had of tallying.

.Mr Campbell: Tsb. you mean your first convenient opportunity. Von won't lake the farmer's word for his tally: you only take your own. You expect, the limners to be bound by your tallv.

Witness said they could net clujclc at hag stations cxce'pt by sending men out sprcial'.y for that purpose, and that was hardly passible. To Mr luncli : They never accepted a line ef grain until they had had an opportunity of sampling it. 1). C. Turiibuil. grain merchant, said the tiade usage when produce was boug'at at a flag station, was for the buyer to accept on delivery at T.man: after sampling and tallying and weighing. Settlement took place at Timaru. Settlers in very many cases s nipiy trucked when it suited them, or when they could get- trueks. Buyers could not, sample at country stations bocau.se they did not as a rule receive notice as "to when gra'n was to be trucked. The farmers sent their grain in when it suited them, and buyers accepted responsibility as soon as they_ had taken delivery of it in store at Timaru or at the ship's side. To Mi- Campbell: A buyer cou'.d not "be expected to be atfthe loss of missing grain when lie had' no opportunity of li'spsct'ng it before it was trucked. The- Magistrate said that plaintiff had not given notice of the date on which he intended to deliver, and the defendants had not therfore had an opportunity to sample cr weigh at Ma Waro, even supposing they had des-red to do so..

•J. 11. Bruce, grain merchant. Tiinara izavo evidence corroborating thai given by Mr Turnbull. All delivery was taken at store, or at the ship's side. The risk or the buyer only commenced when the grain, was taken into store. It was usual for store weights to be accepted by farmer.?. Witness had had a case of alleged light weight in a transaction with the plauitiiT. In one case plaintiff was paid a little over, and in another he was pa:d a little under. Ho accepted both we : ghts. To Mr Camphe'.'i: These were very small differences, and thov were only iu weight, not in the number of sacks. Witness often sent wheat to Duned.n and the we.gh'ng. sampling and numbering were all fixed there. It- was not the custom of the trade to accept what a farmer nrglit ;ay he trucked. That could only be determined when the grain was received at store. P. H. Matheson.. of the gram department of Guinness and LeL'ren, gave evidence in support of that g.ven bv the two previous witnesses. F. Barkas, manager of the New [Zealand Loan Company, sard that del;very of grain was .not taken mit 1 it was "sampled and weighed into store. To Mr Campbell: "Witness cnuld not say what farmers understood, but it was the custom of buyers to take ;in responsibility until the grain was sampled and taksn into stare. C. J. Lennan, re-called, sa'd that in the case of a fanner sanding grain in from a i'ag station, the .Ha'lway Deparfuient would accept instructions from the consignor, to deal with gr.v.n as ho might direct. Mr F.nch said tlrs clearly proved that the rcsponsihil.ty of the buyer did not begin until t'lie gram was talten into stare.

Mi- Campbell said it was a very onesided arrangement if fanu?rs were at the mercv of buyers when selling their grain. it seemed that the farmers word as lo how many bags he sent in counted for nothing. In this case thov had the evidence of two men.that 114 sacks had been sent, and as Dae defendants had bought on tracks at Ma WaVo they were entitled to pay for this number.

P'Av'ntiff re-called by Mr Campbell, said he had been forming for thirty years, and he understood that when grarn was bought at a country station the buver took the respons'b.lity there. He thought that fanners generally understood this. This was all the evidence. Counsel addressed the Court, and His Worship gave judgment for the defendant Association. In s 0 doing he said the contract only fixed the price to be paid for the cats, and there was nothing to indicate that the Association had any responsibility bofore the oats were delivered to them.