A SHEEP DEAL.

Star (Christchurch), Issue 17216, 6 December 1923, Page 8

A SHEEP DEAL.

CLAIM AGAINST STOCK AGENTS. QUESTION OF CUSTOM AND USAGE. A civil action involving £9722 and a question of custom ami usage in sheep transactions was heard in the Supreme Court to-day liefore Air Justice Adams and a special jury of twelve. Robert Al’Elliinney, Ashburton, stock dealer, was plaintiff, and Pyne, Gould and Guinness, Ltd., stock agents, were defendants. Plaintiff, in his statement of claim, set out that on December 1, 1919, the company had on its books for sale on bis behalf 3250 ewes. The company’s agent, Bert Anderson, brought Daniel Bvrne, an Ashburton farmer, to plaintiff’s place in order trv buy the sheep, and he bought them for 34s each. It was arranged that the sheep should remain on plaintiff’s land until after the Christmas holidays. On January 20. the company’s servants removed 150 of the sheep, the others remaining at plaintiff’s place still. The company told plaintiff that Byrne was ill in hospital and could not take the balance away, and asked plaintiff to find feed for them, which he did. Later plaintiff was told by a servant of the company that Byrne was still ill and. later still, that lie had died. Plaintiff had been informed that the statement that Byrne had died was false, but plaintiff bad been unable to trace Byrne, and he had been informed that Byrne was insolvent. The company had paid plaintiff for 150 of the sheep hut had refused to pay for the balance. 3100 sheep, or for their feed. It was the custom or usage of stock agents, dealers and farmers in Canterbury in accepting contracts through agents for sale and purchase, where an agent procured a vendor, and delivery took place, for the stock agent- to accept responsibility to the vendor for the price to the same extent as the purchaser. Plaintiff had no knowledge of Byrne’s financial position at the time of the transaction. He relied upon the custom and usage, and would not have entered into the transaction except on that basis. Plaintiff had found feed for the sheep from the date of the transaction to the present time at the company’s request, and on that credit, and not on the credit of Byrne. Plaintiff also had had the sheep dipped and shorh. Plaintiff and the company had acquiesced in a course of dealing iif which interest had been charged to the party in debit. He claimed for the sheep, feed, and other items, a total of £9722 16s.

Defendants denied that the custom or usage stated in the statement of claim was recognised, or .that it applied to the circumstances and facts of the present case. In a series of alternative defences the company set out that plaintiff acquiesced in the company’s refusal to pay for the sheep, and consistently treated the sheep as liis own property. Tf there was a contract between plaintiff and Byrne. Byrne had unconditionally repudiated it. and plaintiff bad accepted the repudiation. Plaintiff had not suffered any loss or damage on account of the company’s refusal to take delivery. Tf the custom existed, it was inconsistent with the contract, and could not he implicitly read into the contract. Plaintiff was not in a position ultimately to deliver the goods alleged to be sold to Bvrne.

Air J. H. Uphani. with him Air C. Thomas, appeared for plaintiffs, and Mr AL'J. Gresson. with him Mr D. E. Wanklvn, for defendants. CASE FOR PLAINTIFF. Air Lpliam said that plaintiff held sheep for a comparatively short time and sold them again. As far as counsel for plaintiff could trace Byrne, he left Ashburton before Christmas, and never returned. Counsel did not know whether Byrne's whereabouts were known to the company or not. In a barber’s shop in Ashburton plaintiff met two employees of the company, Anderson and Lloyd. a All account sale was produced for 150 sheep. Plaintiff said that he expected credit for 3250 sheep. Anderson was putting the account sale in his pocket, when Lloyd, who had drawn it up. said “ What’s wrong with it? It’s all right.” Lloyd handed it back to plaintiff and Anderson said to Lloyd: “Now you’ve put the fat in the fire.” Plaintiff said to Anderson: “There’s a mistake. 1 sold 3250 ewes.” Anderson replied: “Yes, I’ll get it put right.’ A returned soldier named T. Slade, a left-handed man. wrote a sale note in Anderson’s pocket-book, which was not forthcoming. and counsel were informed that Anderson had destroyed it. The state - ment that Byrne had died was a deliberate lie. 111 regard to the custom, if a purchaser repudiated, before delivery, an agreement made by a stock agent’s representative, or if the transaction fell through in any other way before delivery, the stock agent was not responsible ; but if the stock agent concurred in delivery. immediately delivery was given the stock agent was responsible, and the vendor might look to the stock agent, not necessarily to the purchaser, for payment. Plaintiff said that in 1919 the sheep were counted at witness’s place, Anderson nominating one counter and witness another. Slade wrote the sale note in witness’s dining-room, nnd it was signed by Anderson, Byrne, and witness. Anderson put it into his pocket. The total counted then was 2295 sheep. Anderson admitted that the sale note for only 150 sheep was not correct, and that he would put it right, but did not do so. Witness, baring expected to get a credit for 3250 sbeep, went to see Mr O’Afalley, the company’s representative, who tolcl him that Byrne was in the Christchurch Hospital, and Air O’Malley asked witness to hold the sheep until Byrne recovered. Witness insisted on payment for 3250 sheep. O'Malley began to figure on the blotter, and said that he reckoned he would give witness £2OOO in the meantime, later, O’Malley said that witness must take the sheep and stand the loss. The company did not ask witness for security over the sheep then. O’Malley later went to witness’s place and asked for security, but witness refused to give it. as the sheep were not his. On December 15, 1922, the company sued him for. security, and |he had to confess judgment. He did \ not take the present action sooner because he owed the company too much money; he o>ed it £4416 on the date of the transaction. He always looked to the company, not to Byrne, for payment for the sheep. He gave no security to anybody over the sheep, and did uot. dispose of them. To Mr Gresson: If the sheep were sold in January, l‘»20. they would hare realised £4960. In his first statement, of claim, filed in Ji. if- 1923. be claimed £14.048. When tn transaction was arranged it was witness who first raised the question of delivery. It was not usual for the delivery of sheep to be taken on the dav the• were bought, although witness ban done it on several 1 occasions.

“in reply to Mr Gresson, plaintiff said that delivery took place in his sheep yards. There wore 2200 ewes in a TOO-acre paddock.. He suggested to Byrne to take delivery on the day of the purchase because the sheep «ere handv. and Bvrne only had to count them. Witness did not contemplate that Byrne would remove the sheep that day. It was not usual to remove sheep 611 the dav when delivery was taken. When delivery was taken sheep belonged to the purchaser. In the present case witness retained the sheep, although delivery had been taken, by arrangement with Byrne and the company. The arrangement in the present case was that witness should retain possession until after the holidavs. grazing the sheep from the middle of December to January 4.