An Interesting Law Case.

Gisborne Standard and Cook County Gazette, Volume V, Issue 646, 13 August 1891, Page 2

An Interesting Law Case.

DISPUTE BETWEEN MERCHANTS. On Tuesday Mr Booth, R.M., was coonpied the whole day in hearing the ease, Common, Shelton and Co. v. New Zealand Loan and Mercantile Company, claim £6l 8s sd. Mr Ooapar appeared for plaintiff, and Mr BeLautour for defendants. The dispute had arisen over some barley. Mr Shelton had purchased a quantity from the Mercantile Company, and immediately afterwards closed with Messrs Hancock and Co., brewers, of Auckland, at an advance of about 1 J-d, there being two shipments sent. Before purchasing, Mr Shelton bad got the samples from Mr Bright, manager of the local branch of the Loan Company, and sent half of each sample to Auckland, excepting in the ease of two small parcels, in which Mr Shelton had given the assurance that they were equal to the other samples. The barley was delivered to plaintiff free on board. Subsequently Hancock and Co. wrote stating that ths barley was not equal to tha sample, and there was a conference between Messrs Shelton and Bright, tha latter agreeing to the appointment of Mr R. R Hunt as an independent party to test tha accuracy of the statement, but Mr Bright recognised no liability. As Mr Hunt was leaving the colony, and could not attend to the matter, he suggested Mr Reid, of John Reid and Co ,to take his place, Mr Bright then said that as he had arranged with his clients it did not matter to him, that the (dispute was entirely between Shelton and Hancock. As the result of Mr Raid’s examination plaintiff had compromised with Hancock and Co. for £6O (the other £1 8s 5d claimed being cost of telegrams) about a third of what Hancock and Co. had wanted for compensation. It was admitted that Mr Bright had told Mr Shelton before shipping that the grain was a couple 0! seasons old, and Mr Shelton said that did not concern him, as tha purchase had been from the samp’e. Mr Bright said he had also told Mr Shelton that some of ths grain was sprouting, but Mr Shelton denied this. The weight of evidence of the experts was that none of tha barley was according to the sample, but the trend of the evidence taken in Auckland was that tha barley was no good for malting, for which purpose Hancock and Co. had tried it. Mr Shelton said he had not inspected the barley at all. Mr Bright said he had not sold the barley for malting—it was sold as ordinary barley, and if it was subsequently sold for malting that did not concern him. He considered tha barley sold at a very cheap price, as they wanted to gat the store clear for tha woo! season. The sample was taken from ths grain when it had first coma in to the store. It was adduced in evidence that last winter some grain in one corner of tha store had been damaged through dampness, but so far as known it was only in that corner (this barley had not been stacked there) that any damage had occurred through dampness.

Counsel addressed the Court at length Mr DeLautour contended that the evidence was to the effect that the barley had been rejected by Hancock and Co. because it was unfit for malting purposes. If Mr Shelton had repre sented thatit was, an action might lie between the parties, the circumstances being different to those under which the sale had been made by the Loan Company. In the one case the bulk was there for Mr Shelton to examine if he had wished. The sample had been taken down and shown to him, and he, as a merchant in the place, must have known well that the practice was to take such samples as the stuff came into the stores, and that these samples shown him were such, ho having the opportunity to go and inspect the bulk, even to stop the carts on the road if he chose. A sa’e having been effected, it did not concern them if Mr Shelton did not inspect the bulk, and he could sell it any advance he could get, or for malting or for any other purpose—that had nothing to do with the Company that had sold to him, An notion might lie between Hancock and Shelton’s firms if the former had bought on the sample, consider ing it fit for malting, but in 1 heir ease they had no opportunity to inspect the bulk and would buy on Mr Shelton’s representations, while he would buy for what ha thought it worth, and if ho did not take the trouble to look at the hulk that was his trouble. The bargain having been rotoa could not be rescinded because Mr Shelton had perhaps hastily made a oompromise wvh IJanoook and Co. He also pointed out that a' couple of tha parcels had been sold on tha assurance of Mr Shelton that the barley was equal to the other samples, while the avi-’e''oe was that these packages were the wor t of all. Counsel quoted many authorities in support of his contentions, principally the case of Jonrs v. Just.

Mr Cooper said they did not wish to rescind any contract—the contract hai to be completed before they could take aoti-on upon it, and whatjhey sued for was for breach of contract. It did not matter to them what Hancock and Co. intended to use the barley for—they might have judged from the sample that it was fit for malting. They had bought from the sample, as Mr Shelton had dons, and it was no way incumbent on Mr Shelton to inspect the bulk. It had been proved that tha bulk was inferior to the sample, and quoting from Benjamin ho mntenled that all tha authorities quoted by Mr DeLau'our were over-ridden. If the plaintiffs had undertaken to buy a line of oats, barley, or anything that was in the store tljay would just have had to take the line for what it was worth if the contract had been concluded, but in this case Mr Bhalton had bought from the saujpl<h and had SPbi 69 JJatldOOlt from the same sample. His Worship pointed cut that two small parcels had been sold without aataplss being sent.

Mr Cooper said that only amounted to a very small proportion, and as Mr Sbeltan had omitted to forward the samples which he had received from Mr Bright, he would agree to subtract those from the total. His Worship reserved judgment.