RESIDENT MAGISTRATE'S COURT.

Evening Star, Issue 3158, 3 April 1873, Page 2

RESIDENT MAGISTRATE'S COURT.

Yesterday. (Before James Fulton, Esq., R.M.) CIVIL CASES. Myers v. Keast, McCarthy ami Co.—LS2 13s, for hops supplied. Mr Holmes for plaintiff, and Mr 13. C. Haggitt, with Mr M'Kcay, for defendants. Mr H olmos having staled the case, called A. Lubeeki, who, by order of the Court, produced three telegrams. He could not tell the hour the telegram, on the 11th December, No. 1470, was delivered in Nelson. It was received at the Dunedin station at 11.47 a.m , transmitted to White’s Bay at 11.58 a.m., and might have been transmitted thence in two minutes, but could not have been delivered at twelve o’clock in Nelson. —Wm. M‘oarthy, one of the defendants, was ca’ded, and said that Mr Collins called upon him, and entered into negotiations with him for the sale of some hops. He took down the words he (witness) stated, but did not read it over to him when written. Collins said he could not accept the offer made, on his own responsibility, but would communicate by telegraph. A telegram was received concerning the hops on the 4th December. The telegram was “ Will ship your order for hops by Tararua—reply.” He understood it to mean he would ship by the Tararua on receiving reply, but not considering that they would be shipped, he took a few flays to consider, and did not reply till the 11th, when he ordered the hops to be shipped by the first boat. He expected the bill of lading by every mail, hut received the invoice without it. The invoice was accompanied with a bill for acceptance. He did not know that goods were often sent coastwise without bill of lading. He gave Collins a card of the firm. He made no inquiry as to the arrival of the hops, and lost L3O through not receiving them. He waited until the 4th January, and ou the Bth January returned the bill without acceptance, in consequence of there being no bill of lading. He received the bill of lading ou the 23rd January. It was enclosed in the letter of the IBbh. By Mr Haggitt: He received the invoice, which was dated 6th December, after the 11th of that month. Ho did not accept the draft, because he doubted the shipment of the hops. Under date the 18th January, he received a letter enclosing a receipt from the Tararua, dated 10th December. He bought the hops at 2s a pound. The first iptiniation be had of shipment of the hops was on the 22nd or 23rd January. Although he had to pay higher prices, hops fell in value nearly one-third between giving the order and receipt of information of the arrival of the hops. He purchased several small parcels at advanced prices. He should not have bought them had he known he could have had the hops bought of plaintiff by application to the agents. He considered the hops at 2s equal in quality to those for which he gave 2s 9d. In reply to Mr Holmes : He would have taken the hops up to the 6th January. —William Collins, commercial traveller, representing Mrs Myers, of Nelson, proved offering the hops to the defendants, who offered 2s a pound for hops of 1872, and Is for 1871, free on board, at three months. He took their order, subject to approval of his employer, and had instructions from defendants, if the offer was accepted, to ship the goods by the next steamer. The invoice and bill for acceptance were sent by the Tararua. In answer to Mr Haggitt: The word “ reply ” in the telegram was inserted merely because it was usual. He made out the invoice. He was unable to answer the question as to whether it was usual to advise the name of the vessel by which the goods were shipped, on handing invoice, having only been a short time in the Colony. The telegram was despatched the day after his arrival in Nelson. He shipped the goods according to instruction. He received the telegram directing shipment at 1 or 1.30 on the llth. 1 he reply was to send the hops by the next steamer, but they could not specify the steamer, because it was not known which it would be. This closed the case for the plaintiff'.—Mr Haggitt said the plaintiff had really no case. Although he purposed defending it on legal grounds, he had purposely examined the witnesses, to show that the defendants had a good case ou moral grounds ; for they had suffered great loss through the neglect of common business practice by the plaintiff. It was a contract for the sale of goods above the value of LlO ; and the 17th section of the Statute of Frauds was quite clear in requiring that a memorandum in writing, signed by parties lawfully authorised to make the arrangement, was necessary to its validity. But on these points the agreement failed. It might be argued that the telegrams constituted a sufficient memorandum to satisfy the Statute. That was clearly not the case; as thepi ices at which the good were sold, and, consequently, the whole terms of the bargain, could not be gathered from them. (A case was cited; Elmore v. Kvu/ston, 5 Barnwell and Cresswell, 583.) The decision in that case disposed of any question that might be raised as to the telegrams constituting a complete memorandum. A later decision was given in Addison on Contracts, 263, in 1869, so that the later cases confirmed the decision in the older ones. The remaining point to be noticed was that there was no acceptance of the goods. (The non-acceptance was admitted by the plaintiff’s counsel.) Mr Holmes admitted that, under the Statute of frauds, the carrier was not an agent authorised to accept the goods on behalf of the vendees ; but, assuming a valid contract and sale, acceptance by the carrier was sufficient. The question was whether the memorandum in Collins’s book was sufficient to constitute a contract. Mr H aggitt contended that although a memorandum made at the time of negotiating the sale was allowable for reference to by a witness, to refresh his memory, in strictness it was not evidence in any shape or way; and if it were, it would not alter the case, as it was not signed by both to the transaction, as required by the Statute. There was no evidence to show that Collins was the authorised agent of both parties to sign on behalf of the defendants. Both de-

fendants were present, and therefore might have signed for themselves.—Mr Holmes contended that the memorandum in Collins’s hr ok, conjointly with the telegrams, constituted sufficient evidence of the contract, and therefore it ought to be received as evidence. The Magistrate did not consider it adraissable on the points raised by Mr Haggitt, a- d inasmuch as no agreement in writing was produced, stating the full conditions of the bargain, the plaintiff must be non-suited. The plaintiff was nonsuited accordingly. Tins Day. JUDGMENT. Adams v. Ross —His Worship gave judgment as follows :—'Hie first question to be decided upon the facts proved in this case has reference to the extent of the negligence on the part of the defendant. In the face of the evidence of Cook, one of the plaintiff’s witnesses, I cannot say that the negligence was proved to be gross. The plaint sets foith that Ross bc'ng a carrier of passengers for hire so negligently, &c. The decision in the case must in my mind, rest upon a reply to the question, “ Was the defendant at the time of the accident a carrier of passengers for hire, or rather was he carrying passsengers for hire?’’ as it will determine the amount of care required of him. The circumstances relied on for an answer iu the affirmative are that Adams paid coach hire the day before, and that Ross is a licensed carrier, and that there was another passenger in addition to those who had been at the wedding, iu the coach at the time of the accident. On the other hand it is proved that Ross was one of the wedding company, and that he went with the rest of th« guests to drive them to town. It is not proved, or pretended that any fare or coach hire was either promised or paid by any of the passengers (not even by the one who was not a guest at the wedding), and it must be admitted that the hour was quite an unusual oue for the coach to run. Under these circumstances, I have come to the conclusion, but 1 express the opinion with diffidence, that it is not proved that Ross was at the time of the accident a carrier of passengers for hire.—Mr Sanders, when the Magistrate was concluding his judgment, said he would take a non-suit.—Mr Stout said if the plaintiff would allow judgment to be for defendant, be would not ask for costs. —Mr Sanders would not consent to this. The question of costs was reserved, so that Mr Saunders could consult Mr Barton.

Dempster v. Millar.—Claim for L 53 Bs, balance of contract.—Mr Stewart for plaintiff, and Mr Harris (for Mr Stout) for defendant.—Ll 22s had been paid into Court, and a set off for Lls, for penalties putin.—Defendant pleaded not indebted as to the remainder. —In consequence of the non-ap-pearance of two witnesses, the case had to be adjourned for a week.