SUPREME COURT.

Wanganui Chronicle, Volume L, Issue 12145, 3 September 1908, Page 8

SUPREME COURT.

- (Continued from Page 5.) sheep to Fetzer- for future delivery. The postponed date of delivery does not alter, or affect the contract between the parties, it merely affects the mode or time in which the contract is to be performed. His Honour quoted authoritieson this point. Continuing,- His Honour said that the attitude expected from the plaintiff was that it was a matter of indifference to him who took the sheep, &o long as they were authorised to do so. Musgrove and Thompson being bankrupt the D.O.A. authorised •Dalgcty and Co. to authorise delivery to Fetzer who had purchased from Musgrove and Thompson. It was a matter of indifference to plaintiff on what Fetzer claimed. Before actual delivery Dalgety and Co., representing both the plaintiff and the .D.0.A.,, step forward and wish to clear things up by getting an assurance that who takes the sheep will pay for them: Plaintiff was quite willing to deliver to Fetzer or anyone else. As plaintiff has sold to parties represented by Dalgety and Co., plaintiff has a hold on Dalgety for the price of the sheep. In those circumstances Baggett interviews defendant, and to put matters on a business.footing writes Nixon, putting in writing the subject of discussion between them, and continuing the verbal arrangement made between defendant and Baggett. It is apparent Dalgety and Co. treat the cheep as the property of the official assignee (Thompson) on the footing of Ihe sale by McGregor to Murgrove and Thompson (the official assignee). Baggett's expression that before delivery takes place he would like to have a cheque from Nixon, is used as referring to something which will take place in connection with the sheep. The question is whether McGregor* has the right to sue on that agreement. If McGregor has the right to s"e," the official assignee has the right. His Honour referred to the letter and renly and the use of the word "delivery.'"' It was a very nice noint as to whether delivery had taken place. Here there are two merchants' letters in popular language find both appear to mean the same thing. Under these circumstances Nixon replies noting the authority of Dalgety and Co. and stating that'"he would ■rand them cheque for sheep delivered. What did each mean in the letters? Both mean the same thing. A guaruntes usually relates to the solvency of a buyer or to his being able carrying .out a contract. Nixon's letter relates :.■ to neither, but only to the delivery of the sheep. Nixon contracts to "pay for all sheep delivered to Fetzer, who has no contract, but who comes in. WJiat is -delivery- as meant in the letters? Tho drafting was substantially complete. Both meant actual delivery, in .the sense, not of selecting them in the ; vvard, but : passing them completely to "Fetzer or his nominee. Fetzer had no bargain with McGregor. It was intended liability should arise as the sheep passed from the dominion of McGregor, and when he lost his lieu on them, into tho complete dominion of Fetzer. This being so, the state of facts enow that there was never a delivery and that the sheep Ineve'r nassed through the yards. The contemplated contract had no reference to a particular number of sheep. Nixon's liability never arose, and it is quite .dear that an action will not lie '■': There was no plainer case. Plaintiff will be non-suited with costs as per scale, witnesses' expense's and disbursements to ba fixed by the Registrar. " ' ""