A SHEEP DEAL

Star (Christchurch), Issue 17219, 10 December 1923, Page 7

A SHEEP DEAL

CLAIM AGAINST STOCK AGENTS. NONSUIT POINT RAISED. J A case in which Robert MTlhinnev, sheep dealer, sued Pyne. Gould, Guinness, Ltd., for the sum of £9722 18s, occupied the attention of Mr Justice Adams, and a special jury of twelr© in the Supreme Court again to-day. The case arose out of a sheep deal at Ashburton in December, 1919. Th© company, as stock agents, arranged for tho sale of a flock of ewes from. Ai’llhinney to Daniel Byrne. Byrne did not pay or take the sheep from M’llhinney’s farm, and disappeared. M’Tlhinney, on the ground of cu»* tom or usage in sheep deala Canterbury, sued the company for the price of the sheep and for their feed from December, 1919, to date. The case was begun on Thursday and continued on Friday and to-day. Air J. H. Tpham. with him Air O. S. Thomas, appeared for plaintiff, and Air AI. J. Gresson, with him Air D. E. AVanklyn, for defendants. John Revel Brown. manager in Christchurch of tho National Mort-gage-and Agency Company, called by Air Tpham, said that a stock agent! certainly was liable to the vendor for payment for sheep in a case in which the stock agent introduced th© buyer to the vendor and authorised th® vendor to give delivery to the buyer. To Air Gresson: A stock agent, in arranging a sale of stock, felt that h® had a duty to protect the buyer, who might not be in touch with; the market. It was the duty of a stock agent) to advise a farmer, when h© went on to a farm, to buy as to the value of the stock. Then you. as stock agent, regard yourself as being under a duty to the buyer, as well as to the seller?—Certainly.

Air Upha-m applied for leave to amend the statement of claim by altering the words, “It is the custom or usage where a stock agent procures a vendor and delivery takes place,” “ for the stock agent to accept responsibility for th© price of th© stock to the same extent as the purchaser, to “where a stock agent acquiesces in the vendor giving delivery.” His Honor said that Air Upham sought to make an important alteration, alleging a completely different custom,, when counsel for the defence had no opportunity to cross-examine*! plaintiff’s witnesses on the altered claim. Air Upham was making th© mesh of his net finer. It might not be a new cause of act-ion, but the question, of another custom was raised. Counsel for defendants had not had an opportunity to go into the custom now alleged by Air Upham Air Gresson said that he had had no | opportunity to obtain evidence on the alteration or to cross-examine witnesses on it, and he objected to the alteration .

His Honor said that Air Upham’s application could not be granted. Air Gresson moved for a nonsuit on the ground that there was no evidence to go to the jury that defendants* agent procured delivery to be given to plaintiff in terms of the alleged custom. He said that the counting took placo after delivery was arranged, and th® counting could not be a procurement. There was no evidence of a custom, that where a 6tock agent procured delivery lie was liable. All the evidence supported another custom, that where a stock agent acquiesced he was liable., Mr Upham said that the word “ procure ” in its widest sens© could be applied to all the circumstances. Tho agent took out the purchaser, and actively took part in the counting. That constituted “ procuring,’ *" which Web—sted defined as: “To contrive, to bring about, to effect, to cause, as to procure a favour to b© granted.” A stock agent, by merely standing by at th© counting, was procuring. His Honor said that an agent, Anderson, helped at the counting. H© was appointed by the buyer, and: it was the buyer who was behind him. and Pyne, Gould and Guinness were not th«» buyers. Whose agent was Anderson? Air Upham: In the counting, he waa Ryan’s agent. His Honor: Then it was Byrne, not Pyne, Gould and Guinness, who acquiesced in the counting. Therefore. Byrne did everything that Anderson, did at the counting, and Pyne, Gould and Guinness did nothing that Anderson did then. Plaintiff himself had sworn that Anderson, as agent for Pyne, Gould and Guinness, did nothing at the counting. The counting was th© physical act of delivery, ana the question who took part in it, the agent of the stock agents, or the agent of th® buyer? Air Upham said that Anderson was the can without which nothing would have been done. He was sent out by Pyne, Gould and Guinness to arrang© the sale, and he procured delivery. H© was the dominating party. His Honor: You say that the only way in which Pyne. Gould and Guinness could have been saved from liability was by Anderson disappearing aft the counting ? Air Upham : No. Anderson could have ended the company’s liability by telling Al’llbinney that if he took delivery he would be liable. Air Gresson said that it could not b® held that the sending of an agent t© make a contract of sale was procurement of delivery. His Honor, at noon, said that he had no doubts about the case, but would not give his decision on the point until 2.10 p.m.