SUPREME COURT.

Gisborne Times, Volume XXVI, Issue 2135, 9 March 1908, Page 1

SUPREME COURT.

GISBORNE SITTINGS. (Before His Honor Mr Justice Chapman.) The civil sessions of the Supremo Court were continued on Saturday. IN DIVORCE. ; HOWARD Y. HOWARD. Annie Howard, petitioner, (Mr E. II i Mann) and George Boswell tlowa'rd. Petition for dissolution of mar- • Via go on the groundsof desertion. Jlr. Mann said that, the parties -were, married in ISS2 and lived together till 1899, since when-petitioner had seen .nothing.of lior husband. Petitioner stated .that-/she was mar-, ried at Trinity Church on 29th March 1882. Thov lived together until 31st January 1899. During that-time they. livdd in various: parts ot'the Dominion.. Her husband was a /hotelkeeper. Hor married life had. been un hippy owhig to liis drinking habits and his crrjeltv. . At the''eml >»t 1898, was - Imkg in Grey street, ■iaicldand, and. on the 31st January, 1899, witness had to go to her mother’s house, Franklin road, Ponscmby, owing to the! treatment she received. Her husband "visited the house to ask her to return. Slie agreed and he stopped tbit night at “her mother’s. After breakfast, ho said lie would take her fod a drive and then take her home, being thoroughly reconciled. Ho weht away and she only saw him at different times, but did not speak to liiih. Had had no communication from him. Had given him no cause for leaving her. After a month from the date in question witness never sa\V him. Lived with her mother and sisters until 1900, when she came to Poverty Bay. In 1906 received a letter from an aunt- stating that lie had had a hotel in Adelaide and had gone bankrupt. In consequence ot this, witness instituted proceedings. Counsel stated that he had had considerable difficulty in serving, as ‘Howard went to other parts of the Commonwealth. Service was cventuallA- effected at Boulder City, W.A. Thomas. King, baker and caterer, of/Auckland, brother-in-law of petitioner, stated that lie knew the parties since 18S0. The marriage was a I'.very unhappy one and originally heft tried to prevent it, as Howard wife too much of a man about town arift too fond of barmaids. Petitioner appealed to him on some occasions owing to her being ill-treated, but Howard promised to reform and she alivays went back. He was one of thbse men who promised all sorts of things, but never kept them. One day saw respondent in Queen street with a person lie took to be a barmaid. After January, 1899, lie only saW Howard for a fortnight afterwards and then he went away. Next heard • of him in Palmerston North and then in Adelaide. Heard from a< Mr Woodward that Howard was keeping a. hotel 4 miles from. Perth. ‘John Jowers, manufacturing confectioner, stated that he had been in* Gisborne since 1903. Came from Ahckland, where he knew Howard by sight. Remembered the parties living in Grey street, when respondent sojld his furniture in 1899, but had n<l>t seen him since. 'His Honor granted a decree nisi, to be made absoluto,-in three months. ROWLEY V. ROWLEY.

Frederick George Rowley, petitioner, Margaret Josephine Rowley, respondent, and Gus Dowley co-respon-dent; petition for dissolution of marriage on the grounds of. adultery. ; Mr Stock appeared in support of x the application. ( Petitioner /stated that lie was mar-1 f ifed at .-Holy Trinity Church in Oc-.f tober 1906, and he lived with, herd for about,five months. Was working/ up the coast, ,antl when he returned/ ho discovered that s a hlan and a woman, who were unmarried, were 'liv-j iiig in the house. His wife sued maintenance and witness went back and lived with her. Left her again us she started having men come to the house and witness remonstrated with her. On a Monday night saw* her with a man coming out of the gate. She introduced him as a bro-' ther, but a couple of days 'afterwards witness ascertained, that his name was Dowley. One Saturday night saw the pair going down the street arm in arm. Witness swore a't him and he wanted to fight. His-, vfife told the man to leave‘'witness alone : and ’to come along. Next day liis wife’ahcl Airs'Layton went to-Na-pier. The'photographs produced werethose of his wife. There was no collusion in the matter. - Sarah Owen, of Milton- Terrace, Napier, identified the photographs’as./ those Of the woman ’who came under, flio -hamo’fcf Mrs Dowley. 'A young woman of ’the 'name of Layton accom-lian-ieddier.- 1 Rowley cameulso a fortnight ’afterwards; The Original of-the photograph and Dowley lived together in, her-’house as man and wife. ■ ! His Honor said that the affidavit was’insufficient. - • Mr- Stock said that the case could lie adjourned until Wednesday when dervice'could ho proved. The case was accordingly adjourned. ALLEGED BREACH OF CONTRACT. , The case of WAR. Aitken v. Comlpon, Shelton, and Co. was concluded. ■ Mr Lusk •continued his examination of the plaintiff; Gave 12s per head for one lot of the ewes. The highest bid for the first lot was about- 9s;. there was ho better offer for any lot. Found fault with Mr Wachsmami at the sale, as it was usual when sheep Were hot . fetching the ' usual price to, step'forward to-,the vendor and give ■lidvice as to holding them or to letting them go. ' The best-bid for the next lot was 7s 3d and Mr Wactjstii ann could have said that Mr. Coop was buying them and had he known that, he could have got a better price as doubtless Mr Coop would have gopp higher. On Friday, lie had to find grassing and he got it at the rite of £l2 for a week,- The sheep were sold on the 7th, through Mr. iWachsmann for Dalgety and Co., as Common Shelton and Co. would not take them. He had no fault to find with Mr Wachsmann of the sale of the 31st, The sheep would not have been sold on tho 7th February, except for the dishonoring of his order. Un> der tho arrangements, witness could hold sheen indefinitely. Mr Pasley was surprised that witness had drawn on the firm because no memo could be found of the deal. Captain Tucker was also surprised. On the Monday morning he said that the wires were nicely arranged. The teleyrani acknowledged that lie could do the advertising. It simply meant that as sheen were down, lie nut it on tho company to do as they chose. Knew Coop Bros., Null aka farmers, and on 23rd January, bought 600 ewes at 11s 7d. Sold them to Mr Hnie at 13s. 'Could not see Mr Kells as ho was away, and did not see tlio company. Bought them himself on Ins own credit as lie had arranged a sale. Saw Mr Hine and quoted the sheep to him at 13s Gd. Mr Hine agreed ,to make tho deal if they were satisfactory, On 22nd, he saw Coop Bros, ar.d purchased the sheep at Us 7cl. Returned on the 24th, sale day, saw Mr Hine and asked him if he could complete tho deal. Mr Hine asked tho price and witness quoted 13s, coming down 6d. He said he would arrange for his man to sec them. AVit- • ness left on Friday morning and the sheep were purchased next day. Did pot know definitely that- -Mr Hine would buy them until Saturday. 26th. : Never handled the profit and did not get it. It still stood in Coon .Bros.’ hands to protect George Coon in this jast matter. It was really liis (wit- ■ ness’) money that they held. ' Bought j 100 heifers from Mr Sherratt. on Bth I January Was not certain if ho saw S tho firm about- the matter, Ho bad

lost his credit with other firms provided they would have taken hnn over on tho snmo tonus. 11l IJO6, lie 1 proa dual Mr Bright with this icq cst but ho said that as witness had little moiiov, it had better go on tor tla.ee months and. he could see. lum- again. Did not see.him, but did not take this as a- polite lant. Ihoro ■ was a possibility of las leasing a place at Tolaga from .Mr lv. Hall. aUtei giviim'Mr Bright particulars of this lease ho’thought- tho rent was rather high for -a. place so far from a. market. Never put. these, particulars before Mr ill ells. -Was not suro and did not reiriember if ho approached -Murray Roberts and they declined. After the dishonor of .the note, did not think ho mado any application to any others to finance him. Mr Sherratt s stoers were an excellent- line; ho bought thorn at 30s; cattle wont, down and no 'nrolit was realised. The market had fallon and was falling and Mr WVllio -must have known that it was a bad deal. His credit was damaged in loss of work which meant money and nil other deals he might havo soon profit in'. Tlo liad been robbed of the' chances of making a profit. It was t-ruo that lie had beon dealing lor three years -and had made nothing. Could not ‘give air estimate oL his financial loss through loss of credit, but only ono firm had given him any work as a drover. Had .a freehold farm of -200 acres at Mercer, Waikato, which lie bought after Christinas. Tliero were 150 sheep on it and one horse. Was in a hotter position now than before, but- this was through the help of a cousin in Hawkes Bay and through the Loan Company, Auckland. The -Loan Coy., had finanted' him. - Recognised that lie had no'right’to gfive Peuder an order lor £l9l “7s on the company, -but lio hoped'to be-able, to nay .in the money before the order was presented. Re-examined by : Mr Rees: Between March-20th 1905, and April 11, tliero was no stock order on tho firm. Witness liad authority to draw orders on! tlio firm on his amount without Mi Kells’ authority. The paragraph in;tho letter of October, in reference to 'drawing further orders meant any ordinary orders and did not prevent him from making any similar deals. After he squared up, lie.had drawn orders without Mr Kells’ consent. Graham Johnstone, land and stock a cent, stated that in January 190/, lid had a line of sheep belonging to Mr White of To Puru, on Ins books for sale. Saw plaintiff oil Tuesday, Ja'nuarv Sth in rel'orence to tlio matters. Was told on 14tli that- the deal had been completed oil 12th. AAatness recommended plaintiff to Coop as, a buyer. George Coon, manager for Mr H. White, of Te Puru, stated.he remembered Mr. Johnstone arranging lor plaintiff to see a line of sheep. Plaintiff came , to tlio station and bought the sheep, giving him an order for £§s4.' Always understood that Mr. Aitken bought for. Common, : . Shelton and Coy. Paid the order into the Bilik of New South Wales for collection. On 2nd February, Mr White told witness that the Bank had advised that the order had been dishonored and witness went and saw Mr Paslev, who said that lie knew nothing about the transaction or any arrangement. Witness asked Air Pasley if the amount had been £SO would it/ have been cashed and witness replied that probably it would. He gathered fro'm Air Pasley that- had Air Kells been in town, the' order wbiild probably have been met. At the folowing sale, witness bought 900 and after re-selling them made a profit of £9O odd. At the time, tho sheep were worth' what Air Aitken agreed to pay, there being a good demand at the Waikato. By Air Lusk: At the time- sonic of. the '.sheen might v’have been worth more than 12s. Showed Air Aitken oirtin out of the sheen. He took about •1600 sheep, but some belonged -to ;witness, plaintiff -Having the right to reject the poor quality ones. ■ Air Lusk: Air Aitken said he did not know how many wero to come out. Witness: How could he have given an order if he did not know the number? Air Lusk: That’s his trouble. : Witness continued : Plaintiff -did express some dissatisfaction when taking delivery. Did not persuade him into taking them. -At tile sale witness bought them back at 7s 3d and 9s 6d. Took them away to graze oil the flats and they.did not deteriorate in quality. -In conversation with Air Pasley asked-him why he -allowed plaintiff to travel round with the firm’s cheque book. Probabh- -he replied that Air Aitken had -a- small credit balance and he could only run that out. .. 1 Henry White, owner of. Te Puru station, stated that -he saw' Air Kells, on his return from south, when Mr! Kells said something in explanation of the transaction, hut he could not remember exactly what was said. Air Aitken was still in his debt, j Cecil M. Sargisson, teller in the Bank of New South Wales, produced the credit slip of.the order -as paid in. Being, paid on a Thursday, it would usually have been presented the same morning. It was returned, marked “Present next day.” ’When re-presented, it was marked “Refer to drawer.” The endorsement “Present on a future day” was not unusual. That miglihmean that time was required for inquiries. ; G. R. Wylliey auctioneer and stock agent, employed, by Williams and Kettle,” stated -that about April jilaintiff asked witness to finance him m a deal, but did not do so, as lie heard that he had lost £350 in a sheep deal. The sale of February 7th was not successful, but the market rose soon after that. Sold 562 ewes to Air. Coop on February 21st at 9s 3d, 242 two-tootli at 12s id, and the wethers at -11 s. By Mr. Lusk: Thought that Air.' Aitken had paid too 'much for Air. Sherratt’s cattle. This influenced him to some extent, but if plaintiff bad more money it might have been different. G. J. Faulkner,'stock agent for the N.Z. Alercantile Loan and. Agency Co., and A. It. Hine, who was stock agent and auctioneer for Alurrav, Roberts, and Co., at the beginning of the year, gave similar evidence. ' This concluded the case for the plaintiff. Air. Lusk detailed the case for the defence. Joseph Burton Kells, managing director of the firm of Common, Shelton, and Co., stated that in the early part of 1904 he was auctioneer and stock agent. About April, 1904, Air. Aitken approached-him, and said thatlie had the-opportunity of leasing Mr. .Joyce’s’property, and- wanted to know if witness would finance him. The -arrangement was that if; lie saw any stock where there was likely to be’a good dea* he was to report to witness, and if he approved plaintiff was to purchase, drawing orders on the firm for the money. Guaranteed the rent of the place for 12 months. There was no arrangement to hold stock indefinitely. - The arrangement continued until early in August, 1900, when as the deals had been unsatisfactory and nothing had been mado from them. On tho contrary, if he had beon sold up at that time, the account would have shown a loss. Told him that .the rent would not be paid after August, Later he came up with a great account of Air. Pender’s stock at 14s, hut only 10swas bid. Told him he had better keep on the lease .till November for tho sheep. Witness-said that'as the deal had been‘so’batl’ho'coiild not carry.him on any further.' After that, was' not approalicod further in regard to the purchase.of any more stock. Air.-.Fender’s'sttbek'-frero sold before the'end of November. On 22nd October . Air/: Aitkep r damo to see.,,witness, who .-asked, . him . . for a promissory note. The letter, of the 23rd r October .was duly received," and he took' it-.thafe'Alr."Aitken ’recognised that the'firm had finished With him,

Did pay tho order of Willuids roforred to. Al’tor tho sale in November plaintiff was -in credit some £4O or £SO. On 16th. January heard of tho deal with Air., Coop. Had- no conversation in-rog-ajd to this on the 7th or Bth, Plaintiff told him that unless they wero sold' moantimo, ho would bring tho shoop to the salo of 31kt J anuary. Ho said he thought ho had a purcliasor for the ml Witness said that if tho sheep answored plaintiff’s description, they should bo worth the 12s and more. Ho never indioated that ho had any intention of asking witness to financo the sale. Had he done so, witness would havo doclin,od.: Wroto a memo, in his book and gave it to the stock clerk. AVitness wont South, and Air. Pasley, accountant and secretary of tho company and co-director, was left in charge. While in Christchurch ho received a 'telegram from Air. Pasloy, but did not know thon that tlio sheep woro .sold. A day or two after Saturday, 9tlj, Mr. Aitkon canid, to seo him. AVitness said, “AA’oll, you’ve made a nice mess of things. Why did you draw this.order on us without asking mo 1 ?" Ho replied that lio thought that having told witness of tlio purbliiise of tho shoop it was sufficient, and ho took it, for granted that it was all right. AVitnoss told him that ho Iliad no right to take anything for granted., Apparently, tho sheep were not up to -description. Plaintiff agreed to this, saying that ho bought thorn on samplo, and they wore not up to this standard. AA’itnoss said, “Why did you net refuse to take them?” He said, “I know I should have refused, but like a fool I allowed myself to bo talked into it. Air- Coop offered to incrcaso the number 1 was allowed to throw out, anil I thought this would make them right.” Learnt of the salo of some heifers of Air. Sherratt’s. At the time they wore bought witness knew absolutely nothing abovit it. Had Alt. Aitken been working under tlio old arrangement, ho should have been seen in the first instanco. Air. Aitken said that lie was stuck about the cat tlo, and lie wanted to know if witness could sejl them at 32s 6d. Witness replied that they wero not worth it. On several occasions, Air. Aitken bought stock at- the yards, the money for which ho debited to Ins account. * By Air. Rees: There had been no trhusactions between April 20th, 1905, and Alarch 22nd, 1906. There were no written directions as to payments or receipts for Air. Pasley during his absence, as he did not anticipate that anything special was coming on. After Pender’s deal, witness told Mr. Aitken that tlio arraaigement must ceaso, -and witness considered himself exclusively bound ndt to deal with him. Did not know if j the firm had any security oyer tho stock while at Alangapapa awaiting a sale. Did not consider it necessary to! take any security. ‘Mr. Rees: And the sheep in his custody and liablo to his creditors? AVitness: AVe did not take-any. Mr. Rees: You say you did not authorise the purchase of the sheep, and you also say that beforo you went away you gave Air. Pasley instructions about . important business which liad to be transacted during your absence? 'Witness: Yes. Air. Rees: Is one statement as true as tlio other ? iAVitness: Both aro true. -Air Rees: AVas not £I2OO to bocollected from Dalgety’s in connection with an account with Air AA’iliiam Hall? AVitness: 1 do not remember now. Air Rees: Do you remember that on this Air Hall had given an order amounting to £IOOO on your firm ? AVitness: 1- cannot recollect that. Air Rees: 1 Whoso duty was it to collect the money ? AVitness: One "of tlio clerks appointed. I cannot recollect the transaction exactly. I cannot- remember if I gave' Air Pasley any notice. < Air Rees: Did not Mr Hall see you and give you a rough time AA 7 it ness: I don’t remember any rough time. . Air R eea: Did you know that tho I directors woro savage about these orders when there wero- no funds ? Witness : I beliovo there was something about that,. : -i-.,.-i Air Rees: Did you leave any note with Air Pasley of business to be transacted during your absence ? AVitness: I cannot do that, i Continuing, witness that the firm paid the rent of the place at Alangapapa quarter by quarter. Gave Air Lusk a complete statement of the arrangements. Could not say if he saw Air James Coop in Canterbury before receiving tho telegram. Believed lie saw one of the Alessrs Coop lit the Addington Saley-ards. Had no recollection if the trouble was mentioned. Did not tell him that there would .he no difficulty, because Common, Shelton and Co. purchased the sheep. Had no reason to doubt Air Aitkin’s integrity and did not ask him where lie found the money to buy the sheep. AVlien there were bad sales, they were passed in and kept at the Alangapapa while tliero was feed there. Did not remmber if on one . occasion Air Common had wanted to force Air Aitkin to sell and witness instructed him to do tho roverso, though it might have happened. : Gilbert Kennedy Pasley, secretary and director of Common, Shelton and Co., stated that before Mr Kells left for South, business matters were discussed. There was no transaction with Air Aitken. The first intimation he had of this was tlio presenting of the order. Alarked it “present tomorrow” as he had no funds and his arrangements had been terminated. He thought that Air Aitken was trying to get on the books again, during Mr Kells absence. Dishonored tho order, and not seeing him in tho meantime, -rang him up on the Saturday night when he asked him what his game was? He replied that he had been carrying out an-order with Air Ivells, and witness asked him to call in on the Alonday and give particulars of what he had been doing. Ho came in accordingly and stated that ho liad arranged with Air Kells to put the order through and that thoro must be some misunderstanding. Ho said he knew he had been a fool in making the deal, but Air Coop talked him info it. Saw Air Coop later, \vho wanted an explanation and witness told him that Air Aitken had a small credit and ho was entitled to draw on it. In regard to Air Hall’s matter Dalgetys should -have sent the money along as they liad been instructed to do so. By Air Rees: -No ono knew any'tiling- about it hut Air Kells. Air Hall was called in and ho mot wit’ness and two of the directors. Told Air Hall that cheques were coming j through and as Air Koils was away ’he asked him to explain. Ins position Air Hall stated that there was a cheque at -Dalgety’s. Rang up Dalgety’s and they apologised for not sending : it along. Air Kells had given witness ! instructions as to matters-before ho left. Could -not say if Air Kell’s diaries were properly kept. Put the mark “present, to-rippm-ow,” meaning it to be dishonored, or at least to defer tho matter until could give tho matter full consideration. Air Rees: Now you are a business man, Air Pasley. Have you ever known such a thing to bo done before ? Witness: Yes. Air Rees: Name a case. .-.Witness: In this one. Air Rees: Have you ever, in any other case, intended such a mark to mean dishonored? . -Witness: I don’t think I over had that in my mind. Air Rees: Have you known anyone else? , , AVitness: A’es banks have dono it. Air Rees: Name a bank. AVitness said he could not think of: a particular case. ./:- Ashton Slater Wachsinan, manager and auctioneer for Dalgety and Go..

stated that ho remembered speaking to Air Aitkon ajjout tlio shoop and asked him what- reserve ho placed on thorn, and hotonid “I gave 12s for thorn” and witness said “AA’hatl you will never -sco it.” AA'itnossod was quite astonished and- asked him liow ho had managed! to -give that pneo. Ho roplied that lie bought them on sample. AVitness said “Why did you take them if you woro not satisfied ? and lio replied “1 was a fool and allowed myself to bo tallcod over. Do tho best you can for mo,” and tlio sheep woro submitted to auction, but as the price offered (lid not reach tho reserve on Air Aiikon’s instructions, they wero passed in. Air. Aitkon told witness later that Common, Shelton and Co. had dishonored lus order and that ho wanted the sheep submitted■■ through Dalgety’s. . Offered them the .next salo with instructions to sell them to tlio highest bidder. Made a spocial effort to sell them,.: and when 1,0 got to the ond of the tothor he ’knocked them down) "to the highest bidder. Hoard Air?) Aitken complain in Court, and dill-..not know if 1m wanted tlio price “run up,” and false bids to be given or not, Tlio market wns fluctuating inj January, -and jt reached -bedrock this being the worst salo that year. 1 After this, it rose again, and in a fortnight there was a great improvement. , , r Air. Lusk asked what- ILs Honor proposed as to the issues. His Honor -replied that tlio question was thoro was a subsisting agreement which justified tlio plaintiff in drawing on the faith of that agreement. If tliero was no such subsisting agreement, and tho word subsisting included continuance, then plaintiff was not entitled to succeed. Il there was a subsisting agreement, ho would ask tho jury to consider if it had been broken,' and if so what damages plaintiff was entitled to recover. Addressing tho jury, Air. Luslc pointed out that there was only the statement made by Afr. Aitkin. Generally, -the stories wore similar, but no conversation took place at the Masonic corner on tho 7th or Bth as stated by Air. Aitkon. it was a pity that lie did not say which day. Air. Aitkon stated that ho know this because he could make no purchase without Air. Kell’s authority as ho had no money, blit he drew the jury’s attention to the fact that on two occasions lie had admitted buying without authority. He tried to get out of this by saying that- ono lot bad been purchased previously, but this was not borne out by Air. Hine. It could not be believed that there was any dishonesty on the part of Air. Kells and Air. Pasley in regard to the telegram, the reason given by Air. Pasley being the truo and obvious ono. Air. Aitken could not claim on the company, because he bought- them on sample and not up to description. Even if the jury should find that there was the arrangement in existence. and the question of damages arose, he could not seo why tho firm should bo liable for the £350, when ho paid too much for the sheep. He put down £650 for the loss of credit. He came hero a penniless man, and the firm gave him a good show if he were a good dealer, but for three years lie had done no good. Ho had no credit with anyone else than Common, Shelton'and Co., and they had tho right to stop this credit whenever they pleased. He asked others to financo him, and they refused, and lie complained that his credit- was injured, but as lie said himself, he was in a better position at present than he had ever been'before. , It was ridiculous to suppose that this trouble prevented liim from getting droving; his capacity for droving was not affected.

Air. Rees said that thero was no dispute of tlio agreement, and it was upon Air. Aitken’s opinion that action was taken, and no deal_ could have been completed without Aitken’s having tho right to use orders, A great deal was made of the implication from tho telegram that no authority was given Air. Aitken to draw, but the authority to buy must have included the authority to draw, as he. had no money. The real question in) this caso was—Was there v the agreenon.t mentioned ? Air. Kells’ memory was not very good, as he had ested in tho case of Air. W. Hall. Kells went away, leaving Air. tall under the impression that the .nouey was. lying at- Common, Shelton’s.' ..He had forgotten to tell Air. Pasloy -anything about the transactions.' These questions were put to test Air. Kells’ reliability. Ho had mixed lip the two interviews with Air. Aitken, when lie stated that the deal ought to be a good one, and lie denied the conversation, at tho Alasoliic corner. A point- had been made that there was a blank of three months in the order book, but he pointed out that there was. a- period of eleven months during which no business was done, and it was not taken then that the contract had terminated. If plaintiff had authority to draw, ho could have been prosecuted for gotting possession of the sheep on false pretences, and it was incredible that he would have acted in this manner, It was the non-payment of the order which had caused all the trouble and tho loss of credit. If the general arrangement was made and never cancelled, it did not matter if all the sheep had died, that the order would have to be paid, and from the first the firm took the risk. The question was, authority or no authority, and lie submitted that tho main facts were exactly as stated. AVlien the firm declared to the world that it had dishonored Air. Aitken’s order, it was a severe blow to liis credit, and yet his adversary had stated that ho did not doubt plaintiff’s integrity. His Honor remarked that there was some conflict of evidence, and this must be decided by the jury. It was common ground that there was an arrangement up to a certain date. One thing that was quite clear was that at no time could plaintiff insist on tho company holding over the sheep until a certain time; that would havo beon an agreement with, a loose end. The parties wero at variance as to security, and if it was taken that there was one, it could he assumed that the company would bo entitled to soli the sheep at any time. It this was not- so thoy would be tho property of Aitkon; then the company could issue a writ for its money. Thero was a conflict- as to whether the arrangement had been terminated, and Air. Kells stated positively that- it had been cancelled, but plaintiff said that nothing had beon said, that ho got into trouble over a particular deal and a promissory note was given. The jury would decide what the noto was given for. It was nob absolutely necessary to state that authority was required for the drawing of tho order. It was urged that the deal was substantially different from liis representations to Air. Kells. Air. Coop stated that Air. Aitkon did not seem in love with his deal. AA as

it tho cuso, as stated, that plaintiff was persuaded into it? If he was over persuaded to buy wliat was not in Ills own judgment the right tiling, it was not right that lie should claim on tlio company and if lie acted outside of tlio contract, the company was not liable. If the jury got to tho question of damages, the £350 lost was clearly not tlio measure of tho damage as if blip company had mot the order and the slioep bad boon sold that loss would havo been debited to plaint iff, and the question would then have arisen, whether lie was solvent or not, and if not they would havo been entitled to make him bankrupt. As to plaintiff’s crodit, ovcfiMiiwl the order been honored , lie wbuld' still have boon a debtor just/itlie’ same, but to the company, but- it. was not regarded in this way. by; tho 8 a gents of other firms ,r The issues for tho -jury t \)Ypro. >»» follow: ’■ (1) AA’as tliero on tho’daytohAy-Mch the order was made subsisting agreement bptweqiij,;jrtlio plaintiff and the dofoiVclallt^cqint)any/ under which ho (plaintiff) wfl-StoKtitledv to make and give tlio orderfend'- have it honored by thdYdefendant 'Company s’ —Yes . ” v (j Ylis'" tlieFe? agreement by tlio defendant com-, pany?—Yos. (3) AVhat damages (if any) is the plaintiff entitled to recover from tho defendant company?—None. '