DISTRICT COURT.

Grey River Argus, Volume VIII, Issue 581, 7 October 1869, Page 2

DISTRICT COURT.

Tjesday, Oct. 5. (Before His Honor Judge Clarke.) ACTION FOR DAMAGES. James Johnston v. Marks and Fuerst. — This was an action to recover LIOO damages for alleged breach of warranty of a case of cigarsi Mr Guinness appeared for the plaintiff, and Mr Perkins for the defendants. The plaintiff stated that about the latter end of October, 1868, he met the defendant Marks in a steamer in the roadstead, and had a conversation with aim about cigars. Marks asked him why he did not keep a first-class cigar in his hotel, and offered to supply first-class Havana cigars at Ll2 10s a thousand in bond. He agreed to take a case of 10,000 on the conditions mentioned at the price, payable by a bill at four months' after delivery. A bill at three months arrived before the cigars, which he did not accept. Another was offered at four months, and Mr Fuerst guaranteed that the cigars would be first-class, otherwise the bill would be returned. When they arrived they were found tojbe not according,to_ -prarniserTTHey Were complained about in the hotel, and were unsaleable. He tried to sell them, and gave them to a commission agent to dispose of, but he could not sell them. The plaintiff paid L 36 as duty ; and there were three boxes short in the case ; he also paid L 4 10s for freight, carriage, &c. ; so that he estimated the cigars cost him about Ll7 a thousand. He dishonored the bill intentionally, but afterwards took it up to go on witli this action. About three weeks after the late fire he sold 7000 of these to Mr Basch, tobaccouist, at Ll4 a thousand. Of the balance he had sold some to Mr Middleton, who had returned them as unsaleable. The remainder were either sold or still on hand. In cross-examination the plaintiff stated that he could have seen the cigars before accepting the bill if he pleased. He refused the bill of lading when presented by the shipping agent, because the cigars had beeu a long time in arriving, and he had obtained another supply from Melbourne. He had objected all through this transaction to the cigars ; he did not object for the first time when the bill became due. Bernard Mendelshon, tobacconist, Hokitika, stated that he bad thirteen years experience. In January or February last he was in Greymouth, tested the cigars bought by plaintiff, and told him they were worth about L 8 in bond. He might h ive undervalued them, in order to aell plaintiff some of his own cigars. He went simply by his own taste. (He cut up one of the cigars from a sample box produced by the plaintiff, and said there were a good many Havana leaves it it ; he could not swear to the others. ) The cigars might be worth more when seasoned. In cross-examination he said the sample shown was quite up to the usual class of cigars smoked on the Coast. It was a fair Havana cigar. Charles Harling r , tobacconist, Greymouth, said the cigars now shown were not first-class cigars, and were worth about L 8 in bond, and a pound or two more if the terms were long. George Taylor, co mmission agent, proved having tried to sell the plaintiff's ligars, and failed. The minimum price he asked was 32s 6d per hundred, or Lls per thousand. The case for the defence was that the original contract was made for the supply of a case of good Havana cigars ; the finest quality was not guaranteed, because defendants knew that the price ranged as high as LIOO a thousand, and they could not possibly undertake to deliver them foi Ll2 103. To supply the order, defendant Marks bought a case of good cigars in Melbourne at LJI per thousand, and he only made L 9 by the transaction, foi which he had to lie out of his money foi five months. After the cigars were delivered, he received a letter from the plaintiff, complaining that the quantity was short, but saying nothing about the quality ; and the day before the bill became due the plaintiff stated to Marks that the cigars were not good, and he would dishonor the bill, and he would rather go through the Court than pay it. The defendant Fuerst spoke as to the quality of the goods supplied. The cigars were well worth what plaintiff paid, and cost LlO 10s a thousand in Melbourne. Jacob Basch, tobacconist, Greymouth, who had fifteen years experience, said the sample shown him was a good Havana cigar, which he could not replace in Greyrn.ou.th for Jess than Ll6 a, thousand. He

bought 7000 of the same quality from plaintiff at Ll2 loa. He had .not a better sample in his shop. Herman H. Lahman, merchant, Greymouth, who had twenty-five years experience in the tobacco line, said the sample shown him was a Havana cigar of fair quality, but its value depended much upon where it was manufactured. They were worth'itlO per thousand in bond in Melbourne, and Ll5 if sold in single thousands. After counsel had addressed the Court, his Honor summed up, and the jury returned a verdict for the plaintiff, with 40s damages. In Bankruptcy., Rb Norms Griffiths. — This "Was an adjourned application for a final order of discharge. Mr Kenrick, the trustee, asked that the order should be made conditional on the bankrupt paying over all monies he might receive out of a life interest he held under a will. Mr Guinness opposed, and the case was ordered to stand adjourned until next sitting ; protection to continue. Final orders of discharge were granted in the following cases: — E. J. Bylundf A. S. Dryer, Hayden and Rankin, P. McCarthy, William Wright, aud Henry Hammett. Re Edward Gittoes. — Mr Perkins applied to have Mr Kenrick removed from the trusteeship, as it was formerly vested in Mr F. Harris, Westport, or that the expenses incurred by that gentleman in administering the estate should be paid as a first charge. After an argument between Messrs Perkins, Guinness, and Kenrick, the costs were ordered to be paid, Mr Kenrick was appointed trustee, and the case stood adjourned.