SUPREME COURT.—WESTLAND DISTRICT.

West Coast Times, Issue 272, 7 August 1866, Page 2

SUPREME COURT.— WESTLAND DISTRICT.

CIVIL SITTINGS.

(Before his Honor Mr Justice Gresson.) Monday, August 6, 1866.

ALCORN AND OTHERS V. LANGE AND THONEMAN.

This case was resumed this morning.

The plaintiffs were represented by Messrs O'Loughlin, South, and Harvey, and the defendants by Mr Kees and Mr Tvler.

His Honor proceeded to sum up the evidence in the case, and commenced by instructing the jury as to the law relating to principal and agent. He then placed before them the cardinal points of the case. He said it was a rule of law, that, if damage must accrue to either party to a contract, such damage should fall upon the party through whose negligence the same had happened ; and where an agent was authorised to perform certain acts, a purchaser

w<is not necessitated to enquire into the private instructions given by the principal to the agent. The law held tho principal bound by the act of the agent, so far as his authority extended. To show no limits of an agent's* authority, his Honor quoted " Chitty on Contracts. 1 ' In solving ques tions as to the authority of an agent to bind his principal, as between principal and. third parties, the liability or the principal was measured by the agent's authority. It did not signify that Lango and Thoneman thought they had sent Stevenson to take orders on approval, if Alcorn and Co. bad been led (o believe that Stevenson had authority to sell. The cardinal poii:ts of the case were, whether Stevenson was agent for Lange and Thoneman, and as such authorised to enter into a contract with Messrs Alcorn and Co. to bind Messrs Lange and Thoneman. If Stevenson had falsely represented his authority, he would be liable to an action for damages; but he might have acted under a mistaken idea, and even in this case his principal would still be bound by his acts. His Honor carufully reviewed the evidence of Stevenson, and pointed out that the note produced purported to be a sale note, and not au order on approval. Stevenson had pledged his oath that the goods were sold, and not that the order was given on approval. It had been stated that Stevenson had no instructions to visit Hokitika, but it mattered not to Alcorn and Co. what Stevenson's hutructions were as to the places he was to visit, and the terms of such visit ; for h,ow were they to be aware of the nature of his private instructions ? His Honor contrasted the evidence of the defendant Thoneman with that of Mr Robert Alcorn. The effect of Mr Thoncman's evidence wa3 that a traveller would go about, and enter into cddtracts which would bind the persons giving the orders, but not the agent's principal ; but this was not lav. Defendants' counsel had mado an objection a3 to the designation of the defendants, describing them as of Melbourne and Dvtneilin ; but he considered that the objection should have been made at an earlier stage of the proceedings, as provided by law. IE. Mr Lange, as the defendants' counsel had wished to make out, had no connection with the Dunedin firm, instead of pleading, as he had done, he ought to have pleaded in bar. The learned gentleman (Mr Rees), on behalf of the defendants, had sought to prove that the contract had been rescinded, but his Honor had looked" carefully through the evidence, and could not find one single atom of evidence to support this view. As he had before told the jury, the questions for them to decide were, whether Stevensoji, as agent, had authority to act so as to bind Messrs Lange and Thoneman, and what measure of damages the plaintiffs were entitled to. As to the question of damages, they were to arrive at their decision by considering the difference between the prices of the goods at the time they ought to have been delivered, and the time the contract was made. They were, therefore, to estimate the damage sustained by the plaintiffs by the difference in price they would have to pay for the goods, w,ith freight, duty, and insurance added, and the market selling-price in Hokitika at the time the goods should have been received. Where the price was not fixed by the sale note the current market pricc^ was to be charged. That was a reasonable price to be afterwards agreed between the parties, which would be the lowest market price. His Honor concluded by again remnffling the jury they would have to consider the general view of the case, aud not minute po ; nts.

SWEENY V. WHAITE. Mr Button for plaintiff ; Mr O'Loughlin and Mr South for defendant.

Mr O'Loughlin applied for an adjournment, on the ground that defendant Whaite was unable to attend through illness. He read a declaration made by William Wilson Squires, Doctor of Medicine, as to the nature of defarulant's illness.

Mr Button objected to any further postponement, except on payment of costs.

This was asseuted to by Mr O'Loughlin, and his Honor said he would postpone the cisc on the usual terms, viz., payment of costs. DAVID ROBERTSON V. THOMAS HARRIS AND THOMAS m'kENZIE. Messrs Harper and Button appeared for the plaintiff, and Messrs South and O'Loughlin for the defendants.

The following jury was empanelled :—: — M. H. Kellv (foreman), Joseph Beale, John Stewart, Isaac Benjamin, William Peter Manuel, Robert Upjohn, George Loomes, Edward Savage, John Hinchcliff, Thomas Homan, Angus M'Crea, and William King. The Registrar read the issues to be tried, which were as follow : —

1. Did the plaintiff sell to the defendants, and did the defendants buy from the plaintiff, twenty-five head of cattle for the sum of eight hundred and seventy-five pounds upon the terms that the plaintiff should deliver the whole of the said cattle safely to the defendants, and that the defendants should accept the same from the plaintiff, and pay him the said price for the same upon such delivery ? 2. Was the plaintiff ready and willing to deliver the said cattle to the defendants, and did the defendants refuse to accept and pay for the same ?

3. Is the plaintiff entitled to recover from the defendants any, and, if any, what amount of damages by reason of the cause of action in the declaration ?

Mr Button then read the pleadings. Mr Harper stated the particulars of the case, which were as follow : —The plaintiff was bringing twenty-five head of cattle to Hokitika, and when at the Taipo was met by Mr M'Kenzie, who was a partner of Harris. He sold the cattle to them at the rate of L 35 per head, and the following order for the payment of the purchase money was given by M'Kenzie to the plaintiff :— " Taipo, Sept. 14, 1865. "ToMrJ. Harris, " Please to pay Messrs Robertson and Co. the sum of eight hundred and seventy-five pounds sterling (L 875), being amount for twenty-five head of cattle, at L 35 per head, for the whole number safely delivered.

"Thomas R. M'Kesziu." David Robertson, examined by Mr Button, deposed, that he was the plaintiff in the present case. He remembered the 14th of September, 18G5, on which day he saw Mr Thomas M'Kenzie, one of the defendants, about a mile beyond the Taipo, on the Canterbury side. Mr Walter Burrowes was with witness at the time. They were camped there, having twentyfive head of cattle, which they were bringing to Hokitika for sale. Mr M'Ken-. zie camp up to the camp, and first spoke

to Mi- Burrowos. Immediately after his conversation with Mr Burrowes he (Burrowes) came to witness, and in consequence of a conversation he had with Burrowes went gut to Mr M'Kenzie and bargained about the cattle. He asked witness how much he wanted for the cattle, and witness told him L 35 per, head, which Mr M'Kenzie refused to give, but said he would give L3O per head. Witness objected to take that price, when M'Kenzie offered L3'i 10s per head, which witness also refused. He then asked witness if he would take the cattle down to Ilnkitika, and give Mr Harris the first opportunity of buying them. He did not say who Mr Harris was, but witness knew that already. Witness said he would do so, as M'Kenzie had given him the first offer they had had on the road. M'Kenzic then turned his horse round, as if he were going away, and then turned back and said that he would give L 35 per head for them. He said if he went back with him to the Taipo accommodation house he would give him an order on his partner, Mr Harris, for the money, and as soon as he took the cattle down and presented the order he would get cash for it. Burrowes was present during this last conversation. Witness and a man named McDonald, who was driving with M'Kenzie went back with him. They saw Mr Cousins and several other parties there, and got pen, ink, and paper from him. Mr M'Kenzie said his hands were too cold to write, and he asked Mr M'Donald to draw out the order, which he did, and M'Kenzie signed it. (Order produced.) The signature to the order is that of Mr M'Kenzie. It is signed " Thomas R. M'Kenzio.' 1 Witness then requested him to send word to Mr Harris to let some one meet them on the road, an witiw* and his companion were strangers. Before this, witness asked jNPKeuzic to take delivery of the cattle, hut he said that he and the men with him had to go to the Hurunui Saddle to take delivery of some cattle for Mr Harris. M'Kenzie said he would 3end a letter to Mr Harris, and Mr M'Douald then wrote a letter by his direction, which Mr M'Kenzie signed. Witness be» lieved he added something else to the letter, as he was a long time in signing it. On arriving at the camp M'Kenzie told them to take good care of the cattle on the way down to Hokitika. Witness then asked M'Kenzie how long it would take them to go to Hokitika, and he said three days, but if they took four days it would give the cattle all the more time. It would be an advantage to the cattle to be four days on the road. It took them four days and a part of the fifth to bring them in. M'Kenzie, when he told them the time it wonld take to bring the cattle up said they must sneak down the river Teremakau. Witness was not commissioned to sell any of these cattle on the road. M'Kenzie then left and went to the Canterbury side, and witness and Burrowes then went on towards Hokitika with the cattle. Thry arrived in Ilokitika. When the cattle were at the Arahura witness rode ahead to look for Mr Harris, and found him at the slaughter house on the beach. He told him the cattle which they had sold to Mr M'Kenzie were near town. He said he ' would get his horse immediately and come out and meet them. Witness then returned to Burrowes and the cattle, which were being driven along the beach. As Mr Harris did not make his appearance, they drove the cattle to the slaughter yard. Mr Harris was there when they went up. He jumped on his horse and went around the cattle to have a look at them. He then said he could not -take delivery of them, because he could not see hisjown money in them. Witness then said it seemed a strange way of doing business, and that if he (Mr Harris) entirely objected to take the cattle, he (witness) must take legal advice upon the matter. Harris said they might do whatthey thought proper, but he would not accept the cattle. At- that time they had tbem together on the, beach, but afterwards look them out of town where the cattle could get something to eat. They afterwards placed them in the hands of Wilson, Burnell and Co., for pale. They sold the cattle by auction, at which sale witness was present. He could not say what the whole lot brought, but produced two account sales furnished to him- by the auctioneers. (The two account sales were produced. ) Mr Harris was at the sale, and bought some of the cattle. After offering the caltle in the first instance to Mr Harris and he refused to take them, witness and Burrowes took them to the bush, and the next morning one of them, a red cow, was missing. They looked for.ity but did not find it then. They then brought the twentyvfour head in to the auction yards, and gave them in charge to Burnell. The red cow was afterwards found and sold, and this accounts for the second account sale.

ALCORX AND OTHERS V. LANGE AND ANOTHER. The jury in this case now entered the Court with a verdict upon the several issues as follows :—: — As to Ist issue — In the affirmative. On the 2nd issue — In the negative. On the 3rd issue — In the negative. And, on the 4th issue — LSOO damages. They were then excused from attendance till to-morrow morning. ROBERTSON V. HARRIS AND ANOTHER (continued).

Mr Robartson, cross-examined by Mr South — Mr Walter Burrowes was my partner at the time in the cattle. The cattle, when at the Taipo, were in good condition, being what I call good beef. When M'Kenzie asked me to give Mr Harris the first offer of purchasing the cattle, he did not tell me he would give Mr Harris an order to buy them if they were in good condition. The cattle were not bought subject to Mr Harris 1 approval. No such words were mentioned as Mr Harris' approval. Mr Button objected to parole evidence being given to vary a written contract. Mr South contended that it was not a contract; but his Honor ruled that the evidence was inadmissable.

Cross-examination resumed — I cannot tell if M'Donaid is here to-day. I was present when the order was written. M'Kenzie dictated to McDonald what ho was to write. M'Kenzie never told me after the bargain that the least time for driving cattle down from the Taipo was four days, and properly should be five days. We brought the cattle down gently. We have had cattle come from there in three days, and so has Mr Harris, and the cattle have been in good condition. At the yards, Harris said that from the tenor of the letter he had received from M'Kenzie he did not feel justified in taking livery of the catfet After this, I took the

order to Harris' house and read it to him. When Harris read the letter to me, I said I did not blame Mr Harris for not taking tbe cattle.

Re- examined by Mr Harper — When Mr Harris read the letter to me he read a part which I knew nothing about. M'Kenzie had written to him to say he need not take the cattle without he considered them a bargain, and I did not know anything of this.

Walter Burrowes, examined by Mr Harper, deposed that he was a cattle-dealer, and remembered the early part of last September, at which time he was bringing cattle down to Hokitika in company with David Robertson. They were camped at the Taipo, with cattle about the 14th September last. They had 25 head of cattle with them. Mr M'Kenzie there made a proposal for the purchase of the cattle. He came to witness and asked him to whom the cattle belonged, and witness told him they belonged to him and his mate, David Robertson. M'Kenzie then asked if they were for sale, and witness said, " Yes, at a price." He asked witness how much, and he told him his mate was in the tcut and he would let him know. M'Kenzie and witness then proceeded to look at the cattle, just to see what they were like. They came back to the hut, and he was told L 35 a head was the price. M'Kenzie refused to give it, but, after making several offers which were refused, said he would tako 1 them at that price. He and Robertson then went to the Taipo to settle, and witness remained at the camp. No agreement, or memorandum in writing, was signed in witness' presence, nor anything further said in reference to taking the cattle. Robertson returned to the" camp in company with Mr M'Kenzie and another person. Robertson, in the presence of M'Kenzio, said that the cattls were bought, and they were to start with them. Witness and Robertson proceeded on the way with the cattle to Hokitika. They were four days and a part of the fifth, on the road. On their arrival they delivered the cattle to Mr Thomas Harris, one of the defendants. This took place on the beach at the slaughter-yard. Witness wad not present on tfie delivery of the cattle. He was present, however, when the cattle were sold, but did not recollect the price they brought. Mr Harris bought some, and Mr Garforth bought some. Witness saw Mr Harris take some away after the sale.

By Mr O'Lough'.in— When Mr M'Kenzie came up to me, my mate was . in the tent, about 200 yards from where I was. I believe it was before we saw the cattle that lie asked the price of them. I said I would let him know when I and my mate reckoned it up. My mate reckoned it up while M'Kenzie and I we.re away. Robertson told M'Kenzie the price, which was L 35 per head. He asked if we would give Tom Harris the first offer of them after we got down. After that he offered first L3O, then L 32 10s, but we refused to take it, and he then agreed to give us L 35 a head. I believe it was before offering x.3 L 32 10s that he asked us to give Harris the first chance of purchasing. I don't think he had then made us any offer. George Cousins deposed that he was in the employ of Mr Binney, auctioneer, of Hokitika. In September last he was in charge of the Tuipo accommodation house. Witness knew the defendants Harris and M'Kenzie by sight ; also Robinson. He saw Robertson and M'Kenzie at the Taipo some time in September last. There was another man there with them. There were two or. three stock riders present at the same time. M'Kenzie requested prisoner to give him paper, pens, and ink, stating that he had purchased some cattle and wished to write to his partner about them. Witness gave him the pens, ink, and paper, and he wrote a letter. He read over the letter, but witness could not be certain whether it was M'Kenzie or Macdonald v^ho wrote it. He did not know if there was anything else written. Speaking from memory he thought there was a memorandum of agreement read out, but witness thought it was part of the letter. Witness could not tell who signed it, but. he was under the impression that M'Kenzie did so. He did not know if M'Kenzie added anything to it. By Mr South— Whatever was written was read over. I cannot say whether there were two documents.

Peter M'Leod, examined by Mr Harper, deposed that he was clerk to Messrs Wilson, Burnell, and Co., and produced a book containing account of sales in September last. It contained an account of some cattle sold by the firm for. Robertson and Co. The documents produced are correct copies of the entries in the books. The charges were the usual ordinary charges for commission and expenses of sale. . This closed the case for the plaintiff. Mr South applied for a nonsuit, on the ground that it had been disclosed in evidence that the plaintiff Robertson was, at the time of sale, in partnership with Walter Burrowes. After argument, lpave was given on the application of Mr Harper, to amend the declaration by inserting the name of Walter Burrowes as a partner with David Robertson.

Mr South then applied for a nonsuit, on the ground that the contract did not comply with the 17th section of the statute of Frauds, inasmuch as there was neither payment or acceptance. Acceptance of any part of the goods would suffice, but in this case there was none ; neither was anything given in earnest to bind the bargain. The learned gentleman argued at some length that the contract was not in accordance with the statute.

His Honor overruled the nonsuit point, but at the request of Mr South, took a note of his objection. Mr South then addressed the jury, saying that the case would resolve itself into a very simple enquiry. He considered the order was a simple sale note. .He would bring evidence to show that it was given conditionally upon the approval of Mr Harris, one of the defendants. Simultaneously with the writing of the order, there was a. letter written by Mr M'Kenzie to his partner, Mr Harris, which, on the faith of Robertson's telling him that the action had been stayed, was destroyed by his client.

His Honor ruled that evidence of this nature was inadmissable. It would be sufficient if the plaintiffs proved that the contract entered into contained all the elements rendered necessary by the statutes. The learned counsel would have to confine himself to the contract.

The learned gentleman quoted " Bulleu and Leakc,' 1 page 401, which' he considered bore out his view of the matter.

His Honor, after deliberation, «aid he would allow the evidence to oe admitted.

Mr South then proceeded to call witnesses.

Thomas Robert jM'Kenzie deposed that he was a storekeeper, and one of the defendants in this action. He was at the Taipo on the 14th September last, and met Robertson, Burrowes, and Stewart there with cattle. Witness asked Robertson and Burrowes if the cattle were for sale. Robertson replied "Yes." He asked him what ,he wanted for the cattle, and Robertson said L 35 per head. Upon this, witness offered him L3O, but he re* fused to take less than L 35. Witness told him that he would give no more for them, even if there were no more cattle in New Zealand. Robertson refused his offer. Witness, after a conversation, told Robertson that if they suited his partner, he would give him that money for them. He said " Very well." Robertson, witness, and Macdonald went down to the Taipo leaving Burrowes at the camp with the cattle. On arriving at the Taipo, they asked Cousins for a pen and ink to write the order on his partner. Macdonald wrote the order for the price of the cattle at witness' request, and he (witness) signed it. (Order produced). The order produced is that which Macdonald wrote. Witness when he had signed the order, gave it to Mr Robertson, and then immediately asked Mr Macdonald, as his (witness') hands were cold, to write a letter to Mr Harris, and he (Macdonald) did so. Witness signed it, and left it at Jhe Taipo to be sent to his partner, Mr Harris. The letter was Hot read out, but witness read it btfore he signed it. The order was given subject to his partner's approval, and merely to show his partner what money he would have to pay if the cattle suited him. Another discussion hereupon ensued, in reference to the advisability of parole evidence, for the purpose of qualifying or varying documentary evidence.

By Mr Button — Robertson was, of course, to deliver the whole of the cattle. He was to be at liberty to sell the cattle on the way. I could not prevent him. I did not tell Macdonald to erase the word " all," and insert the word " whole." I wrote the letter immediately after the order. It never struck me I ought to have inserted the words, " if you approve of them," in the order.

Thomas Harris, examined by Mr South, deposed that he was one of the defendants in this action, and the partner of the last witness M'Kenzie. At the time the order was given M'Kenzie was the drover, Greeves, the |buyer, Jat Christchurch, and* witness the salesman. About the 1 8th or 19th of September witness saw Robertson. He (witness) was slaughtering cattle on the beach, in' his own yard. Robertson asked witness why he had not, come to meet him at the Teremakau. Witness said he did not expect him for two days. Robertson told him that the cattle were close there, and asked hi in if he would look at them. Witness said •' Yes,'' and went and looked at them, and told Robertson he should not take delivery of them, as they were not worth the money to him.. Witness went to his house, and Burrowes and Robertson followed him in and asked him why he would not take delivery. He pulled M'Kenzie's letter out for* them to read, and told them that from what was stated in the letter, he did not consider himself justified in taking the cattle. After he had read the letter Roberbon said, " I don't blame you, but M'Kenzie must be a curious man. He then asked witness what he should do with the cattle, and he recommended him to put them in the auctioneer's hands for sale — for they had been overdriven and would not stand long. Witness did not mean that he was to put them in the auctioneers' hands on his account. Nothing else passed between witness and the other parties. Wilson, Burnell and Co, Robertson and Co's agents, sent witness a letter wishing to see him. He went down and met Robertson and Burrowes there.^ They told him, in the presence of Mr 3urnell and Mr Aikman, that they did not blame him. for the transaction. \

By Mr Button — Mr Aikman met me some months after, and told me that the affair was settled, so I burnt the letter I received from M'Kenzie, and also the letter I received from Mr Burnell. I had not received the writ when I destroyed the letter. I had received one letter from Mr Oakes before the letter was destroyed, and I received one from him afterwards. I was at the auction when the cattle were sold, and bought some. .* By Mr O'Loughlin— The cattle Ibought brought from. LlO to L4O. I believe it was either in January or February 1 was served with the writ. The writ was issued on .Bth January, and was served on' the 24th January, 1866. Mr South addressed the jury on behalf of the defendants, and said he would put it fairly to the jury that the order given by M'Kenzie was given conditionally ,-on Harris' approval of the cattle when sent down. Nothing could be plainer, The affair was difFerejit in every respect to a perfect contract. He would ask them if his comments on the evidence were not strictly veracious, and had it not been fully supported by the evidence? The order could not be taken into consideration without the surrounding circumstances. Why was not M'Donald brought down ? He did not wish to impute anything to the opposite side, but this looked a suspicious circumstance. To use a vulgar word, it was a " slant" on the part of his learned friend Mr Button to attempt to make M'Kenzie a party to the alteration of the ' instrument. This was rather a serious, charge, but he would pass it over, as the circumstance was immaterial. They were well aware that meat was very scarce in Hokitika last September, so that if Mr Harris could, without loss, have purchased the cattle, he would have jumped at the • opportunity. He ; would leave the case in their hands in perfect confidence as to the result of their verdict.

Mr Harper replied on behalf of the plaintiff, saying that he would appeal to them as men of business whether the particulars mentioned in the order were not sufficient to establish the contract. He contended that a perfect contract had been made. If M'Kenzie intended that the contract should be subject to Mr Harris' j approval, it was impossible that he should have been so short-sighted as not to insert words to that effect ; but nothing of the kind was inserted. They would observe that the letter written by M'Kenzie to Harris had not even been read over to Robertson, so that he was not in any manner bound by the contents. It-was natural that, upon Mr Harris reading the letter to the plaintiffs, Mr Robertson should say that he did not blame Mr Harris, as be had only acted by his partner's instructions. As one partner was bound by the acts of the other, Mr Harris would suffer

for the carelessness of Mr M'Kenzie. If the cattle had been good cattle, Mr Harris would have taken them ; but they did not suit him, so he refused. He would place before them the law of the case. His learned friend Mr South had observed that no evidence had been adduced to make the bargain a binding one, and that he considered the order merely as a sale note ; but he (Mr Harper) thought differently There were three things necessary to a legal contract — first, the names of the parties to the contract ; second, the nature thereof ; third, the price ; and they would observe that this order contained all the necessary ingredients to make the contract binding. There was one condition inserted in the order, viz., that the whole number should be safely delivered ; why was not the other condition, as to approval by Mr Harris, inserted ? He thought that it must be plain to the jury that being allowed to sell on the journey down was out of the question. The dealing on the part of his clients had been straightforward all through. There were two witnesses who deposed as to the terms of the agreement, but neither of them spoke as to its being subject to approval, and their evidence was corroborated by the document itself. Mr Harris had not denied that the cattle were delivered in good condition, but only said they were foot- sore. The amount of damage sustained by his clients was L 197 Is, and he considered, from the evidence brought before them, that his clients were fully entitled to that sura, and he would expect a verdict at their hands. His Honor then summed up the evidence, informing the jury that the most important issue wa3 the first. The whole case turned on two questions — Ist. Did the document amount to a valid contract within the 17th Section of the Statute of Frauds? 2nd. Did the defendants perform their contract? His Honor then read to the jury that part of the Statute which applied to the case, and showed to them that three things were- necessary to constitute a valid contract. It must show the names of the buyer and seller or their agents, the thing sold, and the price. The main question they had to consider was, whether or not the contract was absolute and completed, or merely in the nature of an escron, which was a deed made by two parties which was to operate at a future period upon the happening of some future event. He had no hesitation in saying that there was no ground foi arriving at the conclusion that the document was a mere escron, especially af tex considering the evidence which had been adduced It was not likely that M'Kenzie should sign a document binding him to the payment of a large amount if he had not thought the bargain completed. His Honor then went carefully through the evidence, contrasting the statements of the different witnesses, and concluded by stating that it was the province of the jury to decide the difficult issues which had been raised. The jury, after a short absence, returned a verdict in favor of the plaintiffs upon all the issues, and assessed the damages at the sum claimed, viz., L 197 Is. The Court then adjourned till ten o'clock to-morrow (this) morning.