DISTRICT COURT CLYDE.

Dunstan Times, Issue 474, 19 May 1871, Page 2

DISTRICT COURT CLYDE.

Monday, May IC, 1871. (Before his Honor Judge Gray). Goodger v. Joel.—This was an'action brought to recover the sum of L3O, for breach of warranty. Air. Wilson appeared for 'plaintiff and Mr. Brough, for defendant. Mr. Wilson having stated his case, called W. B. Davis, commercial traveller, formerly in the employ of defendant, who stated that about twelve or eighteen months ago he took an order from plaintiff for some beer. Plaintiff signed the order, AVitness gave in the order which was marked “ special ” as usual to the order book. The beer was sold at the usual price. G. W. Goodger, plaintiff, deposed that about January, 1870, he had some conversation with last witness about an order. The order book.-produced by defendant, showed the order to have been given on January 17, 1870. Upon the arrival of the ale in March, the whole of it was found unsound, AVitness could not not state the price, but he gave a special order for a special brew. The carriage witness paid was f 17 175.. A short time after the beer came up, Mr. Joel arrived in Cromwell, and witness told him that-the beerlwas not sound. Joel said al it wanted was to settle. AA T itncss told him that he did not think it would become good, and Joel said that it would come good, or he would make it good. Joel induced witness to give an acceptance, which he, (witness) subsequently had to pay. AVitness was going out of business at the time. There were two hogsheads oh tap which were unsound. AVitness lost the whole of the beer. His ordinary profit would have been about 25 per cent. Through having this beer he lost custom, but could not say how much. Cross-examined : AVitness paid £l7 17s. for carriage. There was a deficiency of two or three cwt., but did not deduct anything. The carter said that the hogsheads were not good, and that they leaked on the road. As soon as the heor arrived every hogshead was sampled. It was about ten days or a fortnight after the boor arrived that he saw Joel. He gave Joel an accept-

ance, the amount of which be could not state, but ho paid it at maturity. On sampling the beer, Joel did not make a reduce tioh in the price. He took £2 off the account, in consequence of there being a deficiency in the quantity of beer. Six of tho hogsheads were now at bis store in Grom-* wfelh and the remaining two have been emptied. When Witness transferred tho hotel to Harding, ho wished him to take the beer, but he declined. He did not think he had then arrangement for the supply of beer by Bastings. Witness did not take the bungs out of the casks. The hogsheads were to be returned to Joel. Witness never authorised Logan te dispose of the beer, nor offered it to Smith and O’Donnell. Cduld not sell the beer. The beer was on itap when Joel came up.

lle-exainined : Witness could hot sell tho beer to his customers. It it had been good when it left town, it would not have been

in the state it was when it arrived at Gromwell. It was not worth a shilling a hogshead. He thought the price was £6 10s> per hogshead. He objected to pay the bill, but was sued by the bank and compelled to pay it.

Edward Lindsay, blacksmith, residing at Cromwell, said that, about twelve months ago, he sampled some seven or eight hogsheads of ale in Goodger’s cellar. It was unsound,- and Le told Gaodger it was no good. Goodger became very angry, and said that Joel would not send him bad beer.

Cross-examined : Witness was called in to test the quality of the beer. NeVdi 1 gavo evidence as an expert before. He was doing a little amateur sampling. Hid not know the meaning of the word “ sick” when applied to beer. Knew the beer to be sampled was Joel’s, for he helped to take the hogsheads from the carrier (M‘Leod). Joseph Harding, hotelkeeper, residing at Cromwell, deposed that he succeeded Goodger in his business in April. IS7O. There were about eight hogsheads of Joel’s ale in stock when witness took possession. Sampled the beer, and found it inferior. Would not take it into stock. It was not a merchantable article. If the beer had been sound it should not have turned bad on its transit to Cromwell. The profit realised on the sale of beer should be one hundred per cent. Cross-examined : If eight hogsheads of beer arrived two or three hundredweight short he would think there was something w-rong, and would deduct the amount of the deficiency from the carrier. Goodger offered the beer at invoice price, with carriage ad- . (led, but witness would not take it. If the beer had been sound, and had been spiled and allowed to remain in ullage, it might spoil it. Ile-examined : Hid not see any marks of the casks being spiled. Fourteen quarts is not a great deficiency in a hogshead of beer. C. F. Johnson, publican, residing at Clyde, stated that, in the month of April, IS7O, he was employed by Mr. Goodger to take stock. This was when Harding was taking possession of the house. Witness came across some beer of Joel’s, which he sampled and found unsound. This was the ale Mr. Harding refused to take. If'the ale had been sound when it left the brewery it ought not to have been in the state it then was. Cross-examined : —lf he found a deficiency of two or three hundred weights in the weight, he would have considered the hogsheads had been tampered with. Would in such case examine the hogsheads. By reremoving a hoop a spile could be put in so that it would not be noticed, Harding said to Goodger “ You don’t expect me to take this beer, surely.” Being employed by Goodger, he endeavoured to induce Harding to take the beer. This was plaintiffs case. Mr. Brough moved for a nomsuit, on the ground that the particulars did not disclose sufficient ground of action, but this objection was overruled by His Honor, Mr Brough contended that the carrier was Mr. Goodger’s agent and that if he could prove the beer sound when delivered to the carrier, it would be a perfect defence to the action. A nother defence was that a fresh contract had been entered into and that Goodger then bought the beer by sample. He called

Maurice Joel, brewer of Dunedin, wbo stated that he recollected in January last, receiving an order from Goodg'r for eight hogsheads Excelsior beer, marked He sampled a number of brews, and finally selected eight hogsheads of excellent quality quite sound. Every cask of beer before leaving the brewery has the bung taken out, is tested, and the ullage ascertained and made up. The beer was forwarded on the 28th of February. Witness was in Cromwell on the 10th of March and had some conversation with Goodger on the matter ; Goodger said the beer was three hundredweight short in weight. Witness replied that he was sorry for it and that he could not answer for beer coming up-country, He also told Goodger that he ought to have deducted the amount ofthe deficiency from the carrier. Witness and Goodger then sampled one cask, out of which about ten gallons had been taken. Goodger said the beer was nothing great and witness replied he could not expect it otherwise out of an ullage cask. AVitness told Goodger he was going to Queenstown, and on his way back he would Settle the matter with him. On the 21st AVitness again saw Goodger who said the beer had hot much improved. They went down into the cellar and sampled two or casks. Goodger appeared more satisfied with the beer in the cellar than the cask previously tested. He complained of the deficiency in weight, which witness said would not improve tke beer. The beer was rather flat but perfectly good and witness told him it would improve. Goodger asked for an allowance, and fatter some demur witness agreed to allow £2. The amount of the hogsheads was then deducted and Goodger accepted a till for the balance— £4(b Goodger agreed to return the hogsheads. In the month of June received a notice of dis j honor. In the month of April, 1870, re«

ft'erved a letter from Gooilger containing the first complaint about the beer. On receiving the letter he showed it to hia brewer, and they both went into the cellar and sampled a hogshead of the same beer which was in excellent condition. Witness replied to G oodger’s letter to the effect that the matter was settled and that he could not reopen it. In the month of July, witness met ocodger and Barry in Cromwell and they wanted him to sample the beer. He declined to do so as it was lying out in the sun. Cross-examined : [When he first sampled the beer it was'in the cellar. William Smith, brewer for Mr. Joel, corroborated the evidence of defendant regarding the selection of the beef*, and on re* ceiving the letter of complaint testing beer of the same brew. If there was a deficiency of three gallons in a hogshead it would interfere with its soundness,but witness would not like to say it would render it unmarketable. This was defendants case. Mr. Brough said that after the evidence given it was scarcely necessary for him to say anything. Mr, Wilson having replied'on the case. His Honor gave judgment for plaintiff, for £25 with costs £8 ISs. The Court then adjourned.