SUPREME COURT.

Globe, Volume II, Issue 122, 21 October 1874, Page 2

SUPREME COURT.

SITTINGS AT NISI PKIUS. Tuesday, October 20. (Before His Honor Mr Justice Gresson.) KOYSB AND ANR. V. MURRAY. [The following is the continuation of our report of this case.] George King deposed to carrying on business as a corn dealer, in .Christchurch. In May, 1873, he sent five cases of cheese to Sydne.y by the John Knox, and they arrived in good order. The witness was not cross-examined. This concluded the evidence for the plaintiffs. Mr Joy;it =aid he intended to prove that defendant had substantially carried out his contract. That the cheese was packed in accordance with the contract. He would produce evidence as to the condition of the cheese, and to show that the contract with the plaintiffs had been carried out in a satisfactory rmmiier. Considerable speculative evidence had been given on behalf of the plaintiffs, and he would call in two or three experts who were conversant with the quality of cheese, and the exportation of it. He would first call the defendant.

William Murray stated that he was defendant in the case, and had been for some time past a dealer in colonial produce in Lyttelton. In 1872 and 73 had frequent dealings with plaintiffs and sold them several lots of cheese. He remembered the sale of thirty-two parcels of cheese to plaintiffs in May, 1873. In accordance with their instructions, he packed thirty-two [cases and forwarded them to the railway station at their instance. He gave instructions to his storeman on that occasion to select all cheese of the best quality, and inspected the cheese himself before it was packed. All the cheese was prime cheese and of good color. It was packed in cases made of V. D. L. palings with partitions—two cheese being in each partition. The cheese were packed in hay. Part of the cheese was in his store on Norwich quay, and part in London street, when it was ordered. The cheese was sent to the railway station when packed. The greater portion of the cheese per Stormy Petrel was in the Norwich quay store, and the remainder in the London street store. This lot was all of good quality and cloth bound. He considered it all prime cheese and of good quality. All the cheese he had purchased that season was of prime quality. When Mr Royse called on him he saw the greater portion of the Stormy Petrel cheese, and they sampled portion of that shipped by the Stormy Petrel. They examined the whole of it, but did not sample it all. The whole of the cheese was obtained from the Peninsula. He had an interview with Mr Royse about the Stormy Petrel cheese, and he (Mr Royse) asked him if he had cheese for sale. They then went up together and examined portions, and sampled some of the cheese. Mr Royse left it (the selection of the remaining portion of the cheese) to him, and told him to be sure to send good cheese, and he (witness) said lie would do so. He saw all the cheese forwarded, and believed it to be fit for shipment. Mr Royse's arrangement with him was to have the cheese packed and ready for shipment so soon as he received orders. Prior to receiving a note from Messrs Royse, Stead and Co, the capiain of the Stormy Petrel said there would be a claim for £1 damage. He referred him to the plaintiffs, and did not pay the £l, as he had nothing to do with the shipment of the cheese. The packing of the cheese was the same with regard to both lots. When he received a note from Mr Royse, he went to him, and he (Mr Royse) produced a letter, with reference to the cheese shipped to Sydney, and said he expected they were going to sustain a loss, and asked him if he would bear a portion of the loss. He (witness) replied he could not, as he had sold the cheese in good order. He would swear positively that he did not agree with Mr Royse to bear any portion of the loss, nor had he mentioned about writing to Sydney. There was nothing said as to what was to be done with the account sales when they came over. He told Mr Roose that the cheese he sold was all ia prime condition when packed, and that a lot of other cheese had gone in the same ship. He did not say anything to Mr Royse about the difficulty of proving the cheese to be his. Mr Royse then got a little cross, and said he'd order him out of the office, and he told him he'd leave without being ordered. Mr Royse wrote to him two or three times afterwards about the cheese. He (witness) did nothing further in the matter. In cross-examination by Mr Garrick, the witness said that he had no recollection of anything being said with reference to the difficulty of proving the cheese to be his. He couldn't recollect why he had mentioned to Mr Royse that a lot of other cheese had been shipped by the same vessel. When he sold the cheese he understood his responsibility ceased when he delivered it at the railway. He understood that Cuff and Graham were agents for Royse, Stead, and Co, for the shipment of this cheese, as a clerk of that firm had sent a forwarding note. He did request Cuff and Graham's clerk to ship a portion of the cheese. He had instructed his clerk lately to trace up the shipping note of this cheese. He never promised Mr Royse to make any concession on this cheese, and what Mr Royse had sworn was not correct on that point. He did not notice whether Mr Royse was incorrect in any other particular. Would swear that Mr Royse had spoken to him about the Petrel's cheese, and not that by the John Knox. Mr Royse had called at both stores on various occasions during 1873. He could not say the lapse of time that intervened between the orders given for each vessel. He could recollect the date of the order of the che se from the top store, but could not say whether the cheese was to go by the John Knox or other vessel. He was certain Mr Royse examined the cheese sent per Petrel, but would not swear he 6aw that by the Knox. When he spoke to Mr Royse about going to the other store he said he was in a hurry. He had done a large business in cheese with Royse, Stead, and Co, in May, 1873. He had had transactions in cheese with plaintiffs before that date, His ledger would show whether the plaintiffs had before that date purchased cheese from him which had not beei shipped. He had had experience in sampling cheese] for shipment. Old cheese is the best kind for shipping to Australia, without doubt. The cheese sent away by the John Knox was not turned every day. He gave his storeman instruction to turn the cheese as required. The cheese is turned to prevent it swelling and bursting. He couldn't swear that he had given instructions to turn the Petrel cheese every day, but he told his storeman to turn the new cheese every day. He did not know what the effect of shipping this cheese to a warm climate would be, as he had never shipped any to a foreign climate. He had packed the cheese according to instructions. He would swear that the cheese shipped by these vessels had been turned occasionally. There were only two cheese in each compartment ; but there might be some cases with more in each. Cheese ought to be six to eight months old before being shipped t« Australia. By the Foreman—l had no instructions from Royse, Stead and Co. as to how the cheese was to he packed. James T. Hart, Customs' officer, produced the manifest for the outward voyage of the John Knox, dated 26th May, 1873 ; and also the manifest of the Stormy Petrel, dated 2tth June, 1873, in which the plaintiffs' con signments were entered, and also a quantity of potatoes among the general cargo. William Littlecot, storeman for defendant, stated that he had been in the habit of packing cheese for his employer. He remembered packing some cheese in May and June of last year to go by the John Knox and Stormy Petrel. He weighed and packed both parcels. He did not profess to bt a

judge, but could tell a good from a bad cheese. He took notice of the cheese sent by the Stormy Petrel. He did so because Mr Murray had told him if he came upon one cracked not to put it in. All the cheese lie packed were round and solid. He tested aboutonein twenty with the sample. Those he did not test he took as a fair sample. There was not a soft cheese in Mr Murray's store at the time, and he handled every cheese before packing. He considered all that cheese to be prime cheese. Those cheese he tested were not all the same color. The cheese was packed in cases made of Hobart Town palings. There were four cheese in some of the cases and five in others, with a partitiou in the centre of each case. There was a little hay put in the cases. The cases were not made close. He packed the lots by both vessels.

In cross-examination by Mr Garrick the witness said he had a man to help him to pack the cheese. He could not say the proportion of the cheese that was white or red. If the cheese went bad it was no fault in the packing. The cheese had been in the store about three months. It took them about a day and a half to pack each shipment. The cheese might not have been turned for two or three days before it was shipped. None of the cheese was new. He only turned the cheese because he considered it ought to be turned. William Mcßeth, grocer, in Lyttelton, stated that he was in Mr Murray's employment in May 1873. He examined all the cheese that came into the store. He had examined these two shipments before they came into the store, and before they were packed. He did not see thern packed nor selected for packing. The cheese be examined were prime cheese. He had had teu years' experience in dealing with cheese. He can tell the quality of the cheese by looking at it and feeling it He handled nearly all this cheese and it was firm. He did not test any of it. He saw 6ome of the cases stowed in the Stormy Petrel. They were placed on the cross-beams. In cross-examination by Mr Garrick, witness stated that why he recollected the shipment by the Stormy Petrel was that he called on board the ship to see the captain about the claim for £1 sent in, and he then saw the cases on board and recognised them by their marks.

Re-examined by Mr Joynt—The pound was not paid by ua. George William White, mate of the Spray, remembered the barque Stormy Petrel, aDd was chief mate of that vessel up to the 20th June, 1873. He left her in Brisbane. He was on board of her at Lyttelton when she took in the first portion of her outward cargo. He saw some trucks of potatoes come alongside the ship, and saw some cheese put on board the ship. Thought the cheese and potatoes were put on board about the same time. This was at the commencement of the cargo. He saw one case of cheese smashed by letting it down the shoot by the run. He saw the case lying in the lower hold of the vessel after it was smashed. He saw the cheese amongst the broken wood. He couldn't say whether the case was mended afterwards or not. This witness was not cross-examined

David Davis, merchant, stated that he had considerable experience in exporting cheese, and personal experience of its transit. There was great risk in exporting cheese to Australia. His experience told him that cheese could not be taken there with any certainty of its arriving in good condition. Had always found cheese sent loose in the ship's hold to land in better condition than when packed in cases. The cheese was apt to sweat when placed in cases. The sweating greatly depended on the nature of the other cargo. He had observed the effect of heat on cheese in the hold of a vessel. The cheese swelled and bulged out and became soft. He had sent some cheese himself by the John Knox, in May, 1873. Cross-examined by Mr Garrick The cheese I sent at that time left a small loss.

Frank Dunlop, outside manager for Messrs Cunningham and Co., merchants, stated that he had had sixteen years' colonial experience with cheese. He had seen a few returns of shipments during that time. The export of cheese was very risky ; it ran a great risk of being heated, when it would be softened. He did not think the heat of the hold alone would have a bad effect on cheese ; but it would more depend on the description of cargo on board. Potatoes, and vegetables of all sorts, would have a detrimental effect, as they were apt to steam and sweat. Cheese was generally packed in. wooden cases to Australia, made from V D.L. palings. When cheeses were over 301 bs weight they were packed in one compartment. Heat would affect the color of the outside portion of cheese. The better the cheese the more liable to injury. Noth ng but prime cheese will go " squashy." Cheese was continually losing weight at all times, to a large extent if new, and even old cheese would be affected in a hot atmosphere. In cross-examination by Mr Garrick, the witness said he did not think that a person who had examined the cheese after it became squashy, could have a better knowledge of the original condition of the cheese than a person who had seen it before shipment. He had bought cheese here as prime cheeso which he had afterwards to sell as rubbish. At this stage, the Court adjourned until ten o'clock this (Wednesday) moruing. Wednesday, October 21. The case of Koyse and another v. Murray was resumed to-day at 10 a.m. Mr Joynt closed the defendant's case, declining to call any further evidence. He then addressed the jury at great length for the defence. Mr Garrick followed for the plaintiff, after which his Honor summed up. His Honor was reading over the evidence at the time of our going to press.

Temple Bar, it would seem, is to come down at last The building has been sinking for some time, and on Friday it was perceived that the cope-stone of the arch had Bunk till a great hole was visible, through which daylight could be seen. The city architect has decided that the structure is unsafe, all wheeled traffic has been suspended, and foot passengers are only allowed to pass under the southern archway. It is pretty evident that the Bar must either be rebuilt or pulled down altogether, and as a rebuilt relic is not very valuable, and the obstruction to traffic is great, it is probable that the desire to clear the Strand will prevail in the City councils. It is believed that the cause of the sinking is the excavation of the foundations for the New Law Courts, which has drained and, therefore, lowered the soil under the weighty Bar, which, had it happened to fall before the injury was perceived, might have crushed scores to death.