DAVIS & ELDER v. BENN & CO.

Globe, Volume XXII, Issue 2008, 31 July 1880, Page 3

DAVIS & ELDER v. BENN & CO.

This case was heard at the Resident Magistrate’s Court on Thursday. Claim, £4l Is 41. On the 23rd June plaintiffs yarded at Addington 939 sheep, placing them_ in Messrs Matson’s bands for sale by auction. Mr Long, buyer for Messrs Bonn and Co., bought them privately from plaintiffs at 7s 61 each before the turn of sale came to them. Plaintiffs thereupon gave notice of the sale to the auctioneer, and the sheep were booked to Long. Immediately afterwards Long ininstructed Messrs Matson to put them up on his account, which was done, but they failed to find a purchaser at the reserve price and they were passed in. Long then wanted delivery, but this the auctioneer refused without payment in cash or an order on Benn and Co. Long told the auctioneer if that was the case he would not take them at all. Long then went to Davis and told him the circumstances. Davis after some little time arranged matters with the auctioneer, and told Long he might take the sheep away, Long said he had been “humbugged” too much about the sheep, and would not take them unless Davis put them on the road for him. This Davis refused to do, and both parties went away. The sheep remained in the yards three days, when the auctioneer had them psddocked till the following sale day, when they were again yarded, and sold at 7s Id per head. The difference between this price and that at which they were sold to Long, together with cost of paddocking, driving, and commission on the second sale was the amount now sued for. J T. Matson, auctioneer, deposed to the conditions and usages of sales of stock whan placed in their hands, whether disposed of by them at auction or privately by vendors without their intervention, and proved the facts of the transaction as far as he was connected with it, as stated above. The evidence of Messrs Davis, Elder, Long and Moares gave the same result. Mr Harper admitted the facts brought out by the evidence, but argued there had been no delivery, real or constructive, or if there had been delivery, possession had been resumed by plaintiffs. Mr Garrick replied by reading the conditions of sale used and acknowledged by all using the yards, which distinctly stated that after a sale had been effected by auction or otherwise all stock arc at the risk of purchaser, and, in default of settlement, may be sold, and the proceeds applied first for payment of expenses, and the balanco as afterwards determined. His Worship said it was quite clear a sale had been made to Long, who had no justification whatever for his repudiation. Judgment would be for plaintiffs for full amount, and costs.