SUPREME COURT.

Star (Christchurch), Issue 3359, 14 January 1879, Page 2

SUPREME COURT.

CIVIL SESSIONS.

Tuesday, Jan. 14, (Beforo Hifl Honor Mr Justice Johnston, and a Speciul Jury.) Cleave v. Kino and Another. Mr Macassey with Mr Harper for plaintiff, Mr Garrick with Mr Holmes for defendant. The following were the special jury :— Mr C. R. Blakiston (Foreman), Rob. Cotton, W. J. Hubbard, J. N. Tosswill, J. C. Bonnington, E. Parkison, T. M. Martin, T. H. Brittan, F. G. Tipping, E. Pavitt, J. R. Hill, and W. Jameson. The causo of action in this case was explained by Mr Harper to be the sale by tho defendants to the plaintiff of about 1500 weight of seed, purporting to be purple-top yellow turnip seed, which in point of fact was purple-top white turnip seed. The plaintiff is a nursery man at Invercargill, and the defendants are well-known grain merchants in Christchurch. The consequence of the error in the Bpecic3 of seed 6ent was that the plaintiff suffered serious loss inasmuch as lie had to make compensation to farmers and others who purchased the seed from him. The amount of damages was £2000. The issues were briefly as follow: — 1. Did tho defendants in May last carry on business as grain merchants? 2. Was the plaintiff a nurseryman and seedsman carrying on business in Invercargill? 3. Did the defendants in the month of November last sell 1500 weight, more or less, of purple- top yellow turnip seed instead of purple-top white turnip seed ? 4. Had the plaintiff any means of ascertaining at the time of the sale whether the seed was of tho description known as purple-top yellow turnip and fit for use, &c. ? 5. Was the said seed purple-top jellow turnip seed ? 6. Was the said seed merchantable or fit for use ? 7. Could the defendants, but for their own neglect, have known that the seed was not fit for use, &c. ? 8. What damages, if any, is the plaintiff entitled to recover from the defendants ? After learned counsel had opened the case for tho plaintiff tho following evidence was taken : — Robert Cleave deposed : lam plaintiff in this action, and reside at Invercargill. lam a seedsman and nurseryman. I have followed that trade for 16 years ; beforo that I was a gardener. I know Messrs King and Devoe, the defendant's. I made their acquaintance by means of a letter in 1877. Subsequently I had business transactions with them. Tho first was, I think, some time in April, the same year. I had a great many tranaactions with them from that time till I purchased the seed, the subject of the present action. Some wero by letter, some by telegram, and somo personally. I came to Christchurch every year. My transactions had extended to between £1000 and £2000. The turnip seed was ordered by telegram. Tho first order for that was in October, 1877. I ordered bouio Swede first. (Mr Garrick hero interposed.) The order for turnip Bced was in one order by telegram. The invoice produced is the invoice of the seed. There waa a letter.

witli at. The letter produced was not with it. The invoice is dated Nov. 10. The let tens dated Nov. 16. The seed was sent down to Invercargill. The invoice was for 25871ba ated. The letter sent with the invoice said that the seed was locally-grown, and that the defendants were not aware whether the seed was red or yellow turnip. The first telegram relating to this seed was dated Oct. 29 1877. I had bought some turnip seed from' them before that. This is one of a series of telegrams. There is one on Oct. 31 : " Send lOcwt green top yellow turnip seed." That does not refer to the seed I am suing for. The bad seed was sent in reply to one order. I telegraphed Nov 5, "Is the sample purple top white or purple top yellow?" The sample alluded to is the seed which is the subject of the present action. I don't think I had seen the sample. I had a letter from Mr King, but cannot find it. The answer was " Purple top yellow Aberdeen. Other orders shipping to-morrow." This was dated Nov. 5. To Mr Garrick : lam sure it rofers to tho seed I am suing for. I sent another telegram the same day, " Sbnd the purple top yellow provincial grown with the other." To His Honor : I mentioned provincial grown in consequence of Messrs King's letter. On the 7th I received this telegram, " Consequent on neglect of railway seed shut out of Taupo." The next telegram is Cleave to King, dated Nov. 7. " Send the seed by the steamship Albion. 1 ' Fifteen bags were sent. I did not order any specific quantity. Mr King was to send " the lot." I know there are some letters from King to me which I cannot find. Mr Macissoy here called upon the other side to produce, according to notice, any letters received by the defendants from plaintiff during October and November. Witness continued: There was a letter saying, " I cannot obtain any more Aberdeen, but have some provincial grown turnip seed. My telegram of Nov. 5 was in reference to that letter. I got the seed according to the invoice by some of Houghton's vessels. There I were 15 sacks, I am not sure whether single or double sacks. I examined the seed, and had it sifted and cleaned, as we do all provincial grown seed now. I sold it all at from lOd to 15d, according to sample. Cleaning takes off a great deal ot weight. It varies a great deal. The average loss is about a fifth or a sixth, sometimes more sometimes less. I understood by telegram that it was purpletop yellow, and sold it as that. The purple top white is an early turnip, and the purple top yellow is a keeping turnip for the winter. They are often sold about the same time. There is no difference in the value. The seeds appear the same. The turnips are, one white and one yellow. Each has a purple top. There are no means of detecting the difference in the seed, not even artificial germination. I have great experience in growing turnips. I should have expected good bulbs from tho seed during the months of June, July, and August. If sowed in November, December, and January, both kinds would mature in those months. The yellow would keep till September or October. I paid for the seed. There were 25871 b. We should sell lOoz. to the acre. The whole of the seed was sold by tho beginning of January to between 50 and 60 porsons. I had been in tho habit of selling largo quantities of turnip seed. About tho latter part of February my attention was called to crops raised from my seed. Mr Eiddel, to whom I had sold seed for ICO acres, spoke to me, and I went to Wallace Town to the Oakland farm. I saw tho turnips all shooting to s ;ed. The leaves were 4or 5 inches long and lying ilat on tho ground, and a stalk shot up from them. The roots wore lonp, more like mustard or charlock, not a bulb. I had supplied other turnip seed to Mr Riddel during the same season. I saw that. It was all right. [Mr Holmes objected .J I sold some seed to Mr M'Callum of the New Zealand Land Company for 900 acres in December or tho latter part of November. I went to his place about the middle of March. I saw the whole paddock covered with yellow flowers. There wore no bulbs. Iliad not supplied tho Land Company with any othor turnip seed. I was continually out to look afc .my customers' ground. In twenty or thirty instances and I found in all cases the same thing. In some cases 1 had supplied turnip seed which I had previously obtained from King. That turned out well. Witness here enumerated tho names of somo half dozen others to wliom ho had sold tho bad seed. I had not received any complaint of the other seed. In consequence of these complaints I camo to Christchurch in tho beginning of March, 1878. I called on Mr King, and said to him " You have made a great mess in selling me this Provincial grown tuvnip seed." He said he was very sorry, but ho had atoo sold some to his own customers, and they had been complaining of tho same. I asked him where ho had got it from. Ho Baid he did not know the exact locality, but could find out by going to tho railway station where the parcel was booked. I cailcd back in a day or two after, and lie told mo where it had Seen booked, and that wo might goandseetlifl man ho bought it off. Tho station was Dunsandel. Ho showed mo a written guarantee from tho seller. [Guarantee produced by defendants. It was for half a ton purple top turnip at 4d, and guaranteed it true to name.") I went to Dunsandol with Mr King. We did not go half a mile from tho station before we saw a field yellow with tho turnip. Wo made our way towards that field and ascertained where Elder lived. The field might have beon 20 or 30 acres. We wont to wh^ra Elder was with a thrashing niacb ; "d. I asked Elder where he grew tho .Ki-nip seed. King was present. Ho said ho did not grow it at all, but it was grown by a farmer whoso house he showed us. I asked him when tho seed was saved. Ho said some time before harvest. Ho did not say what month. I understood about December. We went to the house mentioned by Elder and found no one at homo. There was a field afc tho back with tho same turnips not so far advanced as the othor. Mr Garrick objected to the examination as not bearing upon any of tho issues. It did not show a warranty, or that the seed was not of good quality. His Honor ruled that it did. Mr Garrick objected to tho examination of tho 6ource of the Boed as too remote. How could evidence of tho quality of seed grown in 1878 be evidence of tho quality of seed crown in 1876. b His Honor considered the evidence went to show negligence on tho part of tho defendants, but made a note of tho objection. Witness continued : The paddock was that which had been indicated to us as that where the seed had been grown. I pulled some turnips and showed them to Mr King. The bundle of turnips were in the same state of growth as those I had loft in Southland. It takes about five days to come from Southland to Christchurch. I don't rooicmber wiafc King said. Ho appeared to be satisfied that that was the foundation of the mistake. I understood his object was to got at tho person who hud got us both into trouble. We had many conversations about the matter. At that time no claims had been made upou me in 3outhland. Afterwards there wcro many. There wero three reasons which might account for tho bad seed. The parent plants might have been impregnated with mustard or with charlock, or it might have been sown out of season. Had the seed been good and sown in tho right < hue it could not not have produced such results. I never saw such a crop The person saving the seed could know that itwaß not from properly formed bulbs. It is not usual to save seed from immature bulbs. Mustardand charlock belong to the Brassica tribe, and could impregnate turnips. These appearances could not have been caused by seed saved from properly formed bulbs, unless tho seed was sown at the wrong time of tho year. If sown, too early it will not bulb again. I have seensimilar results both in turnips and carrots sown by amateurs out of eeason in tho spring. Elder aaid that ho got the seed for cutting it. After tho seed is saved there is nothing to distinguish good from bad. I had paid about £900 or £1000 beforo this action was commenced. I paid under legal advice obtained in Invcrcargill. I paid at the rate of 12s per per acre. The vuluo of a crop of turnips i» £?o«a 8 l o,^ per acre * I lmvo l )aid a oout £1300 or £1400. I satisfied myself that they bad sown my seed. They threatened me with proceedings excojjt one. It would lake over G2OOO to compensate all to whom I have sold ;he seed. " Mr Garrick objected to this, and his Honor made a note of tho objection. I have suffered other damage through m* lelling this bad seed. 6 J Mr Garrick objected to this, and the obieo;iou was allowed. J I wrote to defendants after I had paid part )f the chums made against mo. They have paid ne nothing nor made mo any compensation. : have receipts from tho persons to whom I )aid tho money. Cross-examined by Mr Garrick : My wcol-

' leotion of the beginning of the transaction is very clear. I could not recollect having a sample of this seed before I bought. I may or may not. On Nov. 5 thetelegrams related to one set of seed, tho subject of this action. lam perfectly clear on that matter. There might have been some purple top yellow ordered beforo, but I could not say whether they both came together. Some seed crossed each other by somo delay. All the seed mentioned in invoice of Nov. 10 came in one lot. I was not in communication at that time for purple top turnip other than the subject of this action. Tho telegram I sent had no relation to tho invoice dated Nov 6. Thoro are purple top yellow and purple top white. There is no difference in their Taluo. I got the seed mentioned in the invoice of Nov. 5, but cannot say when. The invoice of Nor. 10 had a memorandum attaohed to it saying that the defendant did not know whether the seed was yellow or freen. I never saw that until this action was rought. If I had seen it I should not have purchased tho soed, and would not have sold it to my customers. At that season it would not have suited my customers to buy white. I discovered it myself in looking over the lotters some two or throo months ago. The seed invoiced ou Nov. 5 was at 10 d ; that invoiced on Nov. 10 was at 6d. The higher priced seed was English grown. It is much cleaner than provincial grown I sold at 15d and lOd. The first was cleaned first and the latter afterwards. When thoroughly clean Colonial seed is as good as English. Tho quality of seed may be deteriorated by inoculation. It is not usual. Seedsmen do not consider the risk of selling those seeds as very great. It is an understood thing to fall back upon the buyer. His Honor : If you make a proper bargain. Po you, in practice, exact a warranty from tho seller? Witness : We do not. Wo do not guard ourselves from giving a warranty. (One of witness' invoices was shown to him on which a memorandum was printed denying any liability.) Ido not think that has any effect. Mr Macassoy objected. His Honor thought the evidence wont to show whether or not tho plaintiff was logilly liable to pay tho claims which he stated lie had paid, and for which ho now sought compensation from the dofendanta. This nnisfc be shown in each case. Witness : I did not know whethor thore was any good or harm in the memorandum. I did not think it of any value, or I should not have paid the money. I went by my lawyor's advice. In some instances the persons who bought from me received that memorandum. lam not sure that they all received those invoices. I have not brought my books with me. I have no doubt that a great proportion of my customers got invoices. The orders came sometimes by latter, sometimes personally. M'Callum's order came from himself personally. It was about 2001bs of seed. I had come from the Bluff, and he caught me as I was getting out of tho train. Ho asked mo for 2001bs of turnip seed. I got it for him that night and took it to him at the hotel. To his Honor : M'Callum had dealt with me beforo, and I suppose had received invoices with that note. Wo cannot guarantee tho germinating of tho soed. Generally there is no difficulty about tho seed being truo to name. I have paid the claims by cheques or counter accounts. Mr James Holmes tor £319 4s, is son of Mr Matthew Holmes, of Timaru. I sold the seed to him as turnip seed. In each caso I sold as turnip seed. 1 believe in every case it was invoiced as purple top yollow. It was so marked in the day-book, I think. I have not brought my day-book. I have a good recollection of what occurred. To tho best of my recollection tho whole of that seed was sold as purple-top yellow. I have no recollection of any one particular caso. I do not recollect any conversation with any of those persons whoso claims I have paid nor any lottor or telegram from them. I usually send invoices with the seed. I did not sco Mr Holmes' crop. It was at Castlerock, about 63 miles from Invercargill. I had no other seed when I sold to Mr Holmes. I know that because I had to clean this for him. I had previously sold him great quantities of turnip seed, at Castlerock, 9001 b, and at another place 1001 b. I could not say whether I sold him any English purple top. Holmes bought some green top turnip which I bought from some other person. I have a faint recolloction of that. I did not go and see Jamos Holmes. A great many gavo mo information as to this crop, and I was satisfied. I had done business with Mr Holmes for two or three years. Mr Morrison to whom I paid £1&J is of tho firm of John Morrison and Co. [Loft sitting.]