A SHEEP DEAL.

Wairarapa Daily Times, Volume LXII, Issue 9734, 22 July 1910, Page 5

A SHEEP DEAL.

INTERESTING COURT CASE,

At tJia Magistrate's Court, yesterday, before Mr O. C. Graham, "S.M., Thomas Flint York, sheep-farmer, Gladstone, sued James Lee, contractor, Lower Mutt, for £75 damages for alleged breach of contract.

Mr 0. A. Powuali, instructed by Messrs Gawith ami Logan, appeared for plaiutift", and Mr P. W. Jacksou, of the firm of Wilford, Levy and Jacksou, Wellington, for defendant.

The statement of claim was to the effect that on or about April 4th, 1910, defendant agreed iv writing -to pur-chaso-from the islaiutift" 472 lambs at 5s per head, 77 lambs at 3s per head, aud 88 two-tooth sheep at 9s per head, and to take delivery of them on April Bth. Defendant, it was stated, had refused to accept, or pay, for the said sheep, wherefore the plaintiff claimed to recover £75 by way of damages for breach of contract.

Thomas iHint York, plaintiff, stated tnat on April 3rd, 1910, Leo came out with Arthur lorus to inspect his sheep. The sheep were inspected and drafted out for defendant; by loins. The contract was signed on April 4ch, and delivery arranged for ou April Bth. lorns was acting for both parties. There wore about 1:30 culls. The sheep selected were taken from the yards and put in a paddock alongside, which was netted all round. In the afternoon they were let into another paddock, which was also netted. Both paddocks wero perfectly secure, and there was no possibility of the culls becoming mixed with those selected. Tho sheep selected wero raddled and dipped one day,and the culls two days ■later. There' was no possibility of any of the sheep setting mixed. Ou the day on which delivery was to be taken of the sheep Toms arrived in the morning, and his drover, WillougJiby, about an hour later. When they went to the paddock to count out the sheep which were driven into the yard, lorns, after walking in among them, said, "Theso are not the sheep I drafted." Plaintiff stnieu that they were, but lorus would not listen to any reason, and refused to take delivery. He gave no special reasons for saying they were not tho sheep ha drafted, but said ho would ring up his firm and get. them io communicate with Lee, to which pla-ini-ill' stated he would give Lee a clianee to examine them. lorns stated those were not the sheep, and refused to count them. He had not gone through the wiieep and examined rhem properly. Willoughby was sifting on the mice, mid ;u.;keu iorns how he could expect to pick out :-:heep after they had been drafted so ion.','. Tim uioh was v mixed one, and ulKintm himself could not pick any of them after they had boen drafted. WiuiGSh came into town and arranged to give -Lei , another ojiportnuity to look r.V- the .shoe;:) on April lOiii. On that date Lee. and his sou, accompanied hv Inrus' I'p.riu'r, c-sino out. Lr."' Imd ii look rst Hih rh;cJr, ami said they wore not : iv.i shec.p, and t\mi> lie would have not inn;? ro do wit!; them. He pointed to a black shoe]) :;ud said be could swear that sheep was r>ot one of then!. iornr, remarked that that was one of the best sheep in tiie mob. Leo then went away. Tin-re had beei) a drop in the market between tiie 4th and the lOrh. which o-ouninued till about the :25th of the mouth, After the sheep had been rejected tho second tune, they were turned iufo ;i netted paddock, and three ol ? them filed. • Subsequently pbuufiir soli] tho sheep through Messrs Dalgetv and Co. When sole' rhero wore oniy 0115, but the balance could be accounted for by tiie drover. Ttic original contract- sale would have brought plaintiiY :i return or" £!('>'."> :;.;. while i-l'O ;;.u:ouu'f sales brongnt , . v

efiuu of :(2i 17 y.i oil, leaving a deficit

oL : e-21 1-b; \)i\. A< ti losult of having to keep t"i;o siicei; lie \vc.s now short of {,'fixss-. ui\'.l osrir-inf-od his loss iv this at aucat £:!0.

By Mr Jackson : Arthur lorus h"r<t communicated with Jmii iv March. He had not (old t ho former that; he had JOOO Komney lambs to spII. The sheep in dispute were a mixture of Romuey-Lineolns and black-faced Southdown?. He ha:! not previously had the sheep iv tlio yards for Mr Caver liill to inspect.. He had had a note from the Loan ami Mercantile Co. ro say that they had a probable buyer, bnt did not know that it referred to Mr C'averhill. He had yarded To? sheep for Lee's inspection. The lambs wore in one pen and the owes in another. Plaintiff did not remember Lee saying that he wanted itomneys. He had marked every sheep that Lee had agreed ro purchase with biuo raddle.' He had uot noticed fourteen iir fifteen unshorn lambs among the

ooek

b'redorick Henry Garvey, nrovor, said he was employed by Mr York to drive his slock into Dalgety ami Uc's. sale. Hβ took delivery of fi:s4, lint lost :31 ou the road, as they wore too weak to travel. The paddock lie took them from was quite secure ami so was that iv which the calls ■'.vere kept. There was uo possibility of the sheep getting mixed

By Mr Jackson :He had examiued the paddock aad found the fence secure? The fifteen sheep he hurl dropped were left within about the first milo. and the other six died on the road. The sheep wore vev.y weak, apparently from the want of food.

Francis William Carey, mauager for tlio New' Zealand Loan ami Mercantile Co., Limited, stated that in the initial case his firm acted as agents between the two parties and found a possible buyer of the sheep. Between the date of the purchase of the sheep and the date on which they were to be delivered a letter had been received from Mr Lee stating that he would send his son to take charae of the sheep. lorus knew the contents of the letter before going out. to take delivery of the sheep. On April Bth witness wrote to Lee stating that lorns had refused to take delivery of the sheep as there were a number of culls among them. On the following day another letter was written, apprising Lee of the fact that York was taking legal proceedings and suggesting that the former come up and inspect the sheep with a view to arriving at some settlement, ami thus avoidiug legal expenses. By Mr Jackson: Witness considered lorns was doing his duty iv the matter.

Vincent Richards, farmer, Te Wharau, said he was at York's place ou the same clay ou which the deal •was made. Hβ saw the sheep when they were turned out of the yards after the doal had been wade. The rejects were turned into one pad-

dock and the other lot into another. The paddock in which the main lofc was put had wire netting on three sidG3'aurl posts and mils on the other, while the paddock in which the culls were placed had wire netting on two sides and poses and rails ou _the other two. The paddocks were quite secure and there was no possibility of the sheep getting mixed. If any of the culls had got mixed with the other lot -it would not be possible to

detect them unless they were marked. He saw no blackfaoed sheep among the rejects, if there was any suspicion that they had .got mixed the proper way to discover it would be to run them into small pens and make v close inspection of them.

Uy Mr Jackson: All the sheep were poor aud there was little difference between tiie two lots.

William Charles Coulter, stock agent for Messrs Dalgety and Co., stated the (534 sheep that be saw were a very inferior lot and he was only prepared to take about 200 of the lambs. There wap very little feed in the paddocks in which the sheep were kept, and a week , or ten days on good feed would have made a considerable difference to them. There was a drop in prices about April (stli. The fact of a few rejects beiug found in a flook would not entitle the buyer to refuse to conclude his bargain, but he would have the right to throw out the rejects. . .

By Mr Jackson: He thought, he .would know rejects again after they had been drafted out.

William JCdward Campbell, farm hand in the employ of Mr York, said the lambs had been drafted three or four times and 120 were rejected. He did not count the sheep, but heard that they totalled (537. These were put in a paddock opposite the woolshed and the 120 in a paddock at the back of the woolslied. Next day the flock of (J)J7 were raddled and dipped aud placed in another paddock. The paddocks were secure and there was no.chance of the sheep getting mixed. He had bneu ou the station all the time, and if the sheep had been interfered with he would have known it. They remained intact the whole time. The (537 sheep weie the culls of the whole of Mr York's flock. The 120 rejects had been crutched aud dipped and removed to a paddock between a quarter of a mile and half a mile away. When lorus refused to take the sheep York opened the wrong gate by mistake aud allowed them to go into a paddock containing thirreen strange siieup.

The ease was cootiuued this morning, Mr Pownall calling further evidence for the plaintiff.

Charles Smith, rabbi tar for plaintiff, said ho bad helped to drive the siieep into the race, and corroborated the evidence of tiie previous witness iv regard to the security of the puddocks in which the sheep were placed.

(Left sitting)