Untitled

Star (Christchurch), Issue 3360, 15 January 1879, Page 3

Wednesday, Jan. 15. .(Before His Honor Mr Justice Jolinaton, and a Special Jury.) CiiBAVE v. King and Another. This case was continued to-day. Mr Garrick asked his Honor nofc to make the amendments in the issue suggested by the other side. They would entirely alter the rr:ord. The defendant would be called upon to answer what he waB not pi'epared for. Hi 3 Honor said that Mr Gianick should ■show that the alteration would embarrass him. Mr Gtoivick explained by reference to the allegations. H ; s Honor pointed out that if. the word "yellow" was struck out, of course all the breaches of contract depending upon it would be abandoned. Mr Macassey said that was his ■wish. He should contend that the seed was not purpletou turnip, and that it was not merchantable. H'3 Honor thought the plaintiff might coniJne bis case to the seed not being merchantable, and say nothing of its being purple-top •or other specific seed. He could only alter in accordance with tho evidence, and as at present advised he held that the evidence -showed that there was no warranty that the seed was purple-top. Mr Macaasoy said if his Honor was prepared to direct the jury to that effect, the amendment would be 01 Kttle consequence. H'3 Honor said that of couvse Mr Macassey could move on tho ground of nnst 1 u i ection, if soaduscd. He must refuse to strike out "yeW Mi 1 Gr wrick moved for a nonsuit. Tiio plaintiff's declaration contained two counts. Of the fvst, that the contract was to supply yellow top, there was no evidence to go to the ,i"'7-

His Honor asked if fchafc would nofc havo been a fair ground for demurrer. Mr Ga;vick said ifc would have been, but might st' 1 l be made a cause for nonsuit.

His Honor said that Mr Macassey might sl"! confine his cause of action to a breach of contract to supply a merchantable commodity. Mr Gaii'ick would not be prepared for so material an alteration. However that mighfc be, fche evidence, ho contended, did not support cither count of tho declaration.

Mi* Macassey, in resisting the application for a non-suit, contended that the proper course for the defendants to adopt was to move, not for a non-suit but for arrest of judgment. Learned counsel contended at length that the defendants had sold to plaintiff _eed, which was valueless to defendant, cither aa an individual or as a seedsman.

B>_ Honor held that this was not tbo ground of action as declared by the plaintiff. Mr Macassey quoted ** Jones and Just, " to show that tho maxim * ( caveat emptor " did apply where inspection would hotf discover the fault, or where no inspection oould bo be made, and Nowson v. Randall, to show that ;a commodity sold for any purposo muat be fit for tliat purpose.

His Honor said it had long beon admitted that fchis applied to manufactured articles. Did loavned counsel cantend that the same rule applied fco natural products. Mr Macassoy said that he did. Thero was under the oircumstances disclosed by the evidenco an implied warranty, theroiore it was tono purpose to argue that no warrauty bad been given. Ifc had beon stated by tho other side thafc if correspondence had passed between the parties whioh did away with fche implied warranty, no warranty could be pleaded.

IT'S Honor said that the plaintiff had not proved the contract as laid. He would direct a nonsuit bn that point. Mr Macassoy did nofc admit that the contract as laid had nofc boon proved. The contract was to Bupply purple top turnip seed, and tho evidence proved that that had not been carried out. Learned counsel quoted from tho defendant's answers to interrogatories to show that plaintiff orderod " purple top yellow," that in consequence of that order tho seod was sent and invoiced as " purole top." Thafc of itself might be held a complete contract. His Honor said thafc he would rulo fchafc if the Boed was received after tho memorandum froni plaintiffs, " this was sold to us as purple top, but we don't know whothor ifc is green or yellow," had been received there was an entirely new contract. He asked that the declaration should be altered so as to claim for a breach of contract to sell purple top and to sell merchantable seed.

His Honor asked if the plaintiffs could show any cases in wliich a vendor had fco pay compensation to a vendee for losses sustained by Bub-vendees. Mr Macassey was coming to that. If tho contract was to sell turnip seed without atat'ng the kind, tho evidence showed fchafc the contract had been broken, if fche contract was to supply a merchan'ablo article, tho evidence showed such contract to have been broken. On tho firsfc, plaintiff would be entitled to have the money returned which he had paid to defendant, on the second ho would be entitled to receive the amount which he would have obtained by selling the eeed. A third measure of damages would bo the amount wliich plaintiff had had fco pay to sub vendees.

His Honor said that this would depend upon whether or not the warranty given by plaintiff was tho samo as that given to plaintiff by defendant.

Mr Garrick submitted that the ovidonco did not support a breach of the contract alleged, and therefore tho defendants were entitled to a nonsuit.

His Honor said that if after tho finding of the jury the point was taken that the breach of contract had not been proved, ifc mighfc be moved in arrest of judgment. Mr Macassey asked (hat the jury mighfc be .allowed to decide the faots.

His Honor thought thab the most satisfactory course. Mr Garrick musfc press for a nonsuit. His Honor said thafc he would reserve the defendant leave to movo for a nonsuit or to •enter judgment for defendants. Meanwhile, the case had bettor go tho jury on the issues raised. The jury would be asked simply to answer the questions submitted.

Mi* Garriok submitted thafc fchis would be very unsatisfactory. He thought fche jury should find upon Bpecial facts. Mr Macassey had no objection. Mr Holmes proposed to opon tho defendants' case.

His Honor said that thii was not tho time for doing so, nor was ifc the praotice for junior counsel to address the jury on the merits of a case.

Mr Holmes said he was only about fco explain fcho evidence which he wa? going to .call for fche dofonce. After some preliminary remarks from Mr Holmes, Mr Garrick called the following evidence : — Augustus Frederick Devoo deposed : I am one of tho defendants. The bag produced contains a sample of turnip seed sent to plaintiff on Oot. 30. His Honor: Is nofc this something fchafc might have beon pleaded ? Mr Garrick : It might have been pleaded, but I was not in possession of ifc in time. Mr Macassey objected that the evidence was inadmissobh*, as ifc disclosed a variance of contract.

Mr Garrick contended fchafc ifc disclosed no variance of contract. He wished to show fchafc Elaintiff had receivod a sample. If necessary c would put in the plea, if his Honor would allow him.

His Honor would enter the application. Mr Macassoy had no objection to fche evidence going to fche jury, provided that ho was allowed to call the plaintiff, if necessary, for re- examination.

The witness continued : That sample went forward previous to the seod being sent. Tho -sample is ajporfcion of that leffc with us by Mi* Slider. We bought ifc by fchafc sample. The bulk fchafc went to Invercargill waa in accord.ance wifch thafc sample. To Mr Macassey : On the bag is written " Sample of one ton purple top quoted to E. Cleave, Oct. 80, 1877.'* That was written at the time. I ceased to be a partner in May, 1878. The books were kept by clerks. I sent .9. letter with the invoice. We had a letter took. I cannefc say on what day the sample was gent. I bought fche seed from Elder. I bad not any experience in buying seed. I

considered myself qualified to buy: grain. The price, 6d, was not a suspicious price for color ; al seed. I don't recollect what price Elder first asked. I bought the seed without knowing Elder or the seed, but my partner was generally the buyer. He was engaged, and I took the sample to him. I mentioned the price to him, and on his recommendation purchased. To Mr Garrick : I wrote the contract note, ; taking a guarantee. ' . George King deposed : I am one of the defendants. I recollect; the purchase from Elder, and the taking of the guarantee as stated by the Hst witness, I saw the sample, but did not see Mr Elder. I knew nothing of Elder. lam not in the habit of buying or selling turnip seed. My business is that of eornfactor and miller. I buy sred occasionally. Plaintiff is the only seedsman with whom I remember to have had dealings. My telegram " Purple top yellow Aberdeen ; other orders shipping to-morrow" referred to the invoice of Nov. 5, and not to the provmciallygrown turnip seea. No sample of the Aberdeen seed went forward. I believe not.

To Mr Macassey : We only sent a sample of tb's seed. Cleaves telegi-am, "Is the sample purple-top yellow or white?" I replied to by the telegram of Nov. 5, which did not apply to the provincially grown seed. I believe ne had no sample of the Aberdeen. Tlie sacnple bag has upon it "Sample of purple-top turnip seed quoted to E. Cleave, at 6d, Oct. 30, 1877." In thp letter book there is a letter dated Oct. 29. I believe the offer of this seed was made as a Dostscrint to that, but it is not copied. I Know ot no other letter about this seed. I bel'eve Cleve could have referred to some other seed for which orders were in hand. The word " sample" in plaintiff's telegram might have referred to bulk and not to sample. Wnatever sample ho referred to, I refeived to in my reply. > know of no memorendum existing referring to this ti.msaction except in my ledger. There may be ; n the day book. (Journal produced.) My journal is posted daily. Any order would not appear in it tiH executed. Ihe orders themselves would be in the order book. There is an entry on Nov. s—" 6 sacks, 11201 b, g.t.y. seed at lOd, £16 125," and another, "3 sacks p.t.y.a." This means that they have been delivered on that day. The provincial grown seed entry is, "25371bs colonial turnip seed at Gd, £64 13s 6d. I did not know Mr Elder before. I was not in the habit of buying turnip seed. I did not know it was a dangerous business. I know it now. I did not know that plaintiff was a seedsman. (Interrogatories and answers read to witness : they showed that witness had said that he did not know fc»U the previous May or AprP.) The letter produced was written before that date. I have not seen it before. It is signed " George King and Co." It was written by Mr Devoe, who conducted the correspondence. (Letter read. It was addressed to Mr B. Cleave, nurseryman.) I did not know that he was a seedsman. He was introduced to me as a party who was dealing largely in seeds. We did not put this seed through any cleaning process. Our letter referred principally to cleaning rye-g/ass seed. In our order book there is an entry on Nov. 8, "Robert Cleave, one ton turnip seed, at 6d." Our telegram of Nov. 5 must have referred to the seed invoiced on Nov. 5. Our journal contains an entry debiting Cleave with seed. His telegram was on Nov. 5. He had given us orders before, and his telegram referred to those. We had had a difficulty in getting what he wanted. I have not seen or heard of any other samole bag relating to seed sent to Slaintiff. Tim was left in Mr 3)evoe's rawer when he left, and when I was look'ng for documents connected with this case I found it. The test of the seed would be to prove its gornvnating qualities. The test would not show what kind of seed it was. I romombor Cleave coming to see me — I believe at the store. After referring to my books I told him whom I had bought the seed from. I don't think I professed ent"« ignorance. I may not have remembered his name. I went to Dunsandel with I'im. I don't remember the colour of the flowers in the field. I have not purchased much soeel from there. (Loft sitting.)