SUPREME COURT.

Dominion, Volume 2, Issue 554, 8 July 1909, Page 2

SUPREME COURT.

AMSTERDAM; SUES: WEUINGTQN,

' INTERESTING DUTCH MILK CASE. • His Honour Mr. Justice Sim delivered judgment yesterday in the civil action between David Klatzer and Company, of Amsterdam,and Lionel Caselberg and Company, of. 15 Harris Street, ■ Wellington, touching a case, relating to imported Dutch milk. \ , .-, , Mr. D. M. Findlay (instructed, bv Mr. Harold IV Johnston, : Vice-Coneul '. forthe Netherlands) appeared for the plamtiffsi and Mr. C. Pi Skerrett, K.Q., and Mr. Q. "Toogood for the defendants... -./■_, ;;.■••■.:'.■". _:. ■/ At the hearing on.June 25 it.was. stated th'at'in October, 1906,' acropted three bills of exchange drawn-by. plauitiQs upon defendants. These acceptances, were duly presented and jwero dishonoured. Plaintiffs, iii- .'eonsMjucnce, claimed from the de-: fendants £179(05. 3d.,..the total amount of the bills of. exchange: This represented the price of 200 cases.of Meadow Brand, condensed milk sold a,nd delivered \to tho : defendants. Defendants contended that the bills of exchange wore foreign bills; andhad not been : protested .for.non-payment: Ihey also said,that the milk was not saleable, and its disposal • was illegal under tho Adulteration Prevention Act of 1880.V Consequently, the bills' of exchange were void. A counterclaim was made that defendants.,in their endeavoursto place tko milk on tho market had been prosecuted and fined. They therefore claimed £286 95., 3d.,, as special damages, and ,£250 as general damages; ,_. ■';,' His Honour, in giving judgment, said that it had been contended on behalf of the plainbiffs that the -provisions."of tho. Adulteration Act Amendment Act of 1883 did not apply .to' , condensed milk. '. His; Honour could not Bee Mny reason for restricting in this way the moaning of tho term "milk.".': Tho Adulteration Acts mado it unlawful to sell, as, unany milk from which any valuablo constituent had been whoilv or in parti abstracted. Any milk from which any nut-ter-fat had been taken~could not bo sold, therefore, as unadulterated, although the buiter-fat left may amount to 2.5 per cent. Tho Meadow Brand milk, when analysed by Dr. MacLaurin, was found tooontain only 1.54 of butter-fat,, which would be equal to about .5 in the milk before it was condensed. '.; It was therefore unlawful for .the defendants to gall it in New uaadnltenvfcd. : .la.

view of the description of tho milk on the wrappers, it could not be supposed that the defendants could have boon expected to seU , it as-'only' skhnmed milk. Assuming, this argumc-ut- to be sound, it did notholp the plaintiffs, They were Becking to enforce in Now Zealand' a claim arising out of a oontract which eonteinplatod a violation of Now Zea-, land law. Tnis,'it was clear,' they could : .'••- not'do, although tho contract might be valid. Plaintiffs intended that tho goods should be sold with tho description' contained on fcbo wrappers, and that description was' quite inconsistent with any idea that tho.time eon- - , taincd only skiramod milk. If; that was the , intention , of the parties when tho contract • was made, then-, the fact that it was oponfor. V .. the defendants to• change their mind as to <■ how they would sell the goods did not make : I any difforenco in tho rcsuitj.-and the contract ;•: ;. was none the less illegal. | His Honour considered, therefore, that'tho defence of illegal, ity had been established, and that tho defendants'were entitled to judgment on the : claim. The illegality of the contract was an answer also to the defendants' counter-claim. ; They could iiot recover ' damages for the ■,' breach of a contract which was made; to enable them to carry, out. an illegal purpose. . Where a contract was illegal in its inception tho whole transaction was void aid the law ■', \ would not aid any of the parties; nor could the defendants recover tho price paidby thenv in respect of the 58 cases of milk roturned', ; by thorn to: the There was no , ; ment of exactly 58 cases, arid these cases ."■ ; must, therefore, be part'of one shipment'or ; parts of two separate shipmcate, tho balance ,: '.'•>'.■ of wliich had'been sold in pursuanco v of tho, illegal purpose of the parties... The fact that . '.;, this illegal purpose had been s carried into ef- . ;■'.■'- feet in,part..as'to a particular'shipment was ' of itself an"answer' to'tho.dsfondants' claim' . in. connection with the- balance of that ship- '',■.". mont. : This claim also failed on the groupd-.,.-that the defendants could only establish-their . claim by, proypg tho illegal purpose for wMch ; ; the sale was made. .-,,■.";.;.-_ '. :■ ..!'; .'.. ~.: . l \.'-.'.'- " : Judgment would be given for defendante •'..■'' (Caselberg amLCo.) on the claim, ,with costs on'the lowest'scak, and disbursements' and • witnesses''expenses, to be fixed by the Re-: ■■ ■gistrar';. judgment for i the plaintiffs (Klatzer , -. ; and.' Co.) on' the /counter-claim, ,with cost*' ; ... ■£ld 10s. and disbursements. ■■;*;<,;■. ■■ , ? ■.'■■,','