Supreme Court.

Hawke's Bay Times, Issue 1534, 16 December 1873, Page 50

Supreme Court.

THURSDAY, lOxtt DECEMBER. Galbraitli v. Harding. A claim of £7OO damages for alleged breach of 'contract. Messrs. Wilson and Coruford appeared for the plaintiff; Mr Lascelles for the defendant. The following jury were empanelled : W- M. Newman, John Newell, H. Nesbitt, John Burrett, John Murray, T. Morrison, J. Lear, J. M'Leod, F. O'Donnell, J. Rogers, P. Moroney, T. Cleary, Philemon Palmer. Three issues were submitted to the jury. 1. Did the defendant contract with t&e plaintiff to deliver the sheep named in the agreement ? 2. Did the defendant refuse to fulfil the contract? 3. To what damages, if any, is the plaintiff entitled ? Mr Wilson briefly .opened the case. He read the contract, and said that though the defence would be that ,the defendant was always ready and willing to perforin his agreement; yet he had refused to fulfil his part; and it would be shown that of two thousand sheep tendered as full-mouthed, a large proportion were in reality broken-mouthed. Duncan Galbraitli sworn, deposed: I am a sheep and cattle dealer, residing at Wajpawa. I know the defendant, who is ■a sheep farmer at Mount Vernon. I saw 'him t}iere about jfche beginning of the y«ar; I went,tp;}iim and,fold,him I wanted a certain number of slieep. .$e told me he had got them to sell. I made him ;an. offer, and he would not accept it. About a fortnight afterwards I went back, and we then made an agreement in writing. The document produced, marked A, dated 7th January, is the one. •In the agreement the defendant contracted to sell to plaintiff, for the sum of £950,1,000 ewes/under full-mouth, 2,000 wethers—soo coarse-woolled, the remaining 1,500 picked mevinos~and 1,000 fullmouthed ewes,

Mr Lascelles objected that the agreement was improperly stamped—six twopenny stamps having been affixed.—MiFielder was called, arid produced copies of the stamps in use. In the Registry Office he would accept a document stamped with two Gd stamps for agreement, if properly cancelled. His Honor expressed his opinion that 2d stamps were undenominational, and merely represented so much money paid to the Stamp Office, and as at present advised, he could not admit the objection. Witnes3 continued: The agreement, A was signed by myself and Mi Rechab Harding, son of the defendant, who was present at the time. I was to get 4,000 sheep for £950. On the 23rd February I went for the sheep, and saw" Mr Reel) ab Harding. He told me that the river was up, and I could not cross the sheep ; that the weather was too bad to muster ; but that if I came on the 3rd March I could have them. I went on the 3rd March, and saw Mr Harding himself, who told me that the weather was too wet to draft, and that I had better come next day. I went next day, and found them drafting, but they would not attend to mo till the next day. I went on the next day, and he commenced to deliver the two-tooth ewes. I found a good many of them had not cast a tooth. I waived the objection, and we came to the wethers. I passed the halfbred wethers, and we came to the merinos. I asked for the pick, and was not allowed to pick them. I let them pass, but objected. I showed him the agreement, when we came to the ewes agaiu. He said the work " picked " was there, but it should not be. It was three or four days before we came to the finish of the business. I passed two thousand sheep altogether. After passing them, we commenced with the -full-mouthed ewes. About the sixth sheep we came to was a broken-mouthed ewe, showing that the sheep was old. I asked him to put the sheep out. He said he would not allow me to do so. I would not go on. He said I must take the sheep ; he would give me worse than that; I must take all the crawlers he could find. I tried to arrange the matter with him, telling him I had come to fulfil my agreement, if he was prepared to fulfil his part. Besides Mr Harding, there Avere present Turner, Robinson, Collins, and Smith, who was at that time Inspector of Sheep. I gave defendant notice that I was sustaining a loss, and would sue him for the damages. He lias never offered to deliver the sheep ; and I have never received them. I had sold the sheep on the same condition as I bought them on the 10th Februaiy. I had entered into a contract with Mr Maney to sell the sheep to be delivered under this contract. (Contract produced, marked B, and read.) Mr Maney had agreed to pay a fair market price. Between 7th January and 10th February the market was rising.

By Mr Lascelles : We began with the young ewes; Smith and Robinson were there; also tb.6 defendant and Rechab Harding. It was either Smith or myself that made the first objection. I did not say the first lot were good enough ; I said they were young, and might improve. I said that to Smith. Smith was there on behalf of Maney, and it was on Maney's agreement that he objected. I accepted those sheep ; I then took delivery of 000 half-bred wethers. When the agreement was made I was told that some of the sheep were at Mount Erin, near Havelock, about thirty miles from Mount Vernon ; that there were some wethers and ewes, and I agreed to receive them there. I knew I was to go to Mount Erin to get the remainder. It was on the last day that I showed defendant the agreement; not until we came to the ewes. When the ewe was objected to, it was both Smith and I who objected. Mr Hardingdid not tell me I might reject every ewe which had lost a tooth. I did not go any further into the matter. I don't remember him saying it was not broken-mouthed; but that I might object to every sheep that had lost a tooth. The document produced is the notice I gave to Mr Harding. It is dated 7th March, and states that jf the sheep were not delivered by 10 a.m. next day, I would take legal proceedings. It would not have been possible to have delivered the Mount Erin sheep by that time. 1 gave the notice myself to Mr John Harding; I am certain of that. It is not in my writing, Mr Rechab Harding did not tell me that if I waited till Tuesr day I could have the whole of the sheep. I did not tender any money, but told MiHarding I was prepared to pay for them in cash. Collins, Smith, and Turner heard me.

By Mr Wilson : That agreement with Maiiey was quite bonujide. He has made a claim on me for non-fulfilment. John Armstrong Turner deposed : I am a stock-dealer ; I know plaintiff and defendant ', I have an fotximb jn the transaction between them, f (iprgt gaw \J.y Harding on Wednesday, the &th of March, about the delivery. I went and saw some sheep being drafted as young cwec. Smith, as agent for Maney, objected to them. On Wednesday I wrote Mr Harding a note, telling him that the sheep were not up to the mark, and that if. he did not fulfil the contract, I would institute Jpgal proceedings. The document produced is the fine. Mr Lascelles ppinted out to the Court that the document, f$ the contents of which the witness had was of quite different purport from what ftp had statedWitness continued; I made a calculation of the difference between the sum we were to reeei/e and the £950, There would bo a profit considerably ove,r £?O0 ; reckoning the wethers at Bs, which was a fair market price. I saw the sheep delivered ; they were crawlers, not worth taking away, Mr Harding at first said that broken-mouthed sheep should be thrown out; but he afterwards took offence and said that he would not allow $ eingle sheep to be rejected—that he did not if. they could not crawl off the station. lie obkcisd to the wethers being picked; he asked to s&e £ .he agreement; after which he allowed lis jic pick the wethers.

By Mr Laseelles : We would have had to take crawlers if they were f ull-mouttied. The sheep were examined 5 we found that the greater number of the steep were broken-mouthed! There were about six hundred ; I saw some of them. A brokenmouthed sheep is one whose teeth have fallen out. About half of the six hundred were not worth taking away. Galbraith and Smith examined their mouths. Defendant objected to our rejecting them, He did not say we might reject every sheep that had lost a tooth ; lie said we must take all the sheep that were there ; and that at the other station he would make ,ns ,take even worse. I had an equal share vvitti' Gralbrfjittti- Galbraith had not told me certainly'that we'were £0 receive part of sheep at Mount *Erihj heiWid 'vtbmi&tf have to receive some there. I 1 wrote 1 this notice, took a copy of it, and ! gave it to'a man named Robinson, with instructions to deliver it to Mr Harding; I saw him deliver it, and Mr Harding read it. Neither Mr Harding nor his son said a word to us about it. Mr Beohab Harding did. not say that if we ■ waited till Tiles*

day the sheep would all be delivered—he said nothing of the kind. Thirteen or fourteen hundred wethers had been put out.

His Honor said he could not look upon this passing of the sheep as a distinct acceptance ; there could be no delivery until the whole thing was done. Cross-examination continued : The twotooth sheep had been passed ; we did not object to them, and would have taken fjicm if the rest had been satisfactory. The dispute wasentirely about the full-mouthed sheep. I went on the second day. Smith and G-albraith were examining the sheep ; Smith was the principal man. About the same time I bought some sheep from Mr Collins and from Mr Mackersey. I purchased Mackersey's at I believe 6s ; I will not swear that it was not 3s Gd.

William Francis Smith, sworn,deposed: I have been Assistant Inspector of Sheep, and have had considerable experience. I went to Mount Vernon station in March last, under instructions from Maney. I had seen the contract between Galbraith and Harding, and had to see that the sheep were according to contract. I protested against the young ewes, but ultimately agreed to take them, providing the rest of the sheep were according to agreement. All the wethers were passed, and then came the ewes. They were nearly all broken-mouthed. I objected to them as soon as they came into the yard. Mr Harding had a dispute with Galbraith. I caught the two sheep nearest my knees, and exposed their mouths to both of them. The sheep were distinctly broken-mouthed. Mr Harding did not at first object to throw out the broken-mouthed ; but after I had exposed the teeth of the two near me, he said Galbraith must take them as they were. I then said I would leave the yard ; we could never get them across the river, or even to the road. He said, " I don't care ; if you get the sheep out of the yard I am done with them." By Mr Lascelles : All the young sheep and the wethers were passed. There were more than a thousand wethers, the rest were to come from another station. I caught two of the sheep ; I saw no one else examine any. I was there the whole time. I may have caught three. Some had lost some of their teeth ; others had their teeth worn down ; I will not swear that those I examined had lost any of their teeth. A sheep is broken-mouthed when it has gone beyond its prime ; when it lias lost its masticating power. Mr Harding did not deny that they were broken-mouthed. He had previously said that we might reject all broken-mouthed sheep. After I had looked at these sheep, Mr Harding said I must take them as they were—not one siugle sheep must be rejected. By Mr Cornford: A broken-mouthed sheep can be generally detected by the appearance of the eyes and nose. There were a great many among the ewes. Gavin Peacock, sworn, deposed : I am Inspector of Sheep ; and have been so for the last nine years. When a sheep is six or seven years old the teeth get long, blunt, and open, they do not necessarily fall out. In some kinds of country sheep break their mouths much sooner than in others. They do not last long after it; they are past their prime. A sheep is described as full-mouthed from four to six years old. I can generally tell a broken-mouthed sheep without examining the teeth.

By Mr Lascelles : The term " crawler" generally implies a broken-mouthed sheep. A sheep may be broken-mouthed without losing any teeth ; it is not full-mouthed unless the teetli are perfectly regular and even.

Mr Lascelles said he would bring witnesses of greater experience, who would swear the contrary.

Edward Collins, sworn, deposed : I am a sheep-fanner at Waipawa, and have had experience with sheep for twenty-seven or twenty-eight years, A broken-mouthed sheep h properly one whose teeth arc broken out or broken off—but they are also palled broken-mouthed when the teeth are wide open, so that they cannot get their food properly. I know the plaintiff and the defendant. J was at Mount Vernon, defendant's station, in March last, when Galbraith and Smith were there, J saw a quantity of sheep in different yards, which were pointed out to Galbraith as the gheep he was to get. I saw two broken-mouthed sheep pointed out. By Mr Lascelles: Mr Harding would not allow the sheep to be taken out. Their teefh we broken. Smith and G-al-braith were examining others. J only took notice of two. I cannot say what Mr Harding said. By Mr Wilson : These were crawlers, perhaps worth a shilling a head. This closed the case for the plaintiff.

Mr Lascelles addressed the jury. He contended that the sheep had been duly tendered, according to contract. The agreement was broken through the notice handed in by the plaintiff, and not through any act of the defendant. The jury would nave policed fcbaf; all the sheep described in the'cpntvacV'as '/under full-mouthed " were accepted' without objection;' then from a thousand to' fourteen hundred wethers were provisionally accepted—the remainder being at Mount Erin, where the plaintiff had agreed to take delivery of them. He could show that the sheep objected tq were full-mouthed, as the term was always understood by invariable usage in this Province. It had already clearly appeared'.that the plaintiff wished to pick ifye pwes as he had already 'pibked-'tho wethers, in php one case it was specially provided for in the agreement.; in 'the pther, there was no such provision. In frig (cajculatipn of the plaintiff had sought to make the defendant responsible for the wnple sunder of .sheep lie had engaged to sell to Mr Mapey. tfhioh included m I)W.W more ewes'tljan he was to have bought tmw fte defendant. It was admitted that the defendant did not object to strike out any hpokPHmouthed sheep ; but the plaintilf stuck to the Inspector's view—that a sheep was not full-mouthed unless its teeth were in first-class condition. He would bring conclusive evidence that this was contrary to the m& Pf- tne country. He would tthow that "'the sheep d.eccribed by Mr Collins as so inferior;'we're- not tendered a,t all, but had actually'been already'draftM put as diseased. Finally, he would show that the breaoh fif agreement was not the act of' the'defendant', M fjf fhf> plaintiff, in imposing an impossible cflndihen. The Qdmi then Adjourned til} 10 a.m. on Friday. FKIDAY, 12th DECEMBER.

Win Honor Mr Justice Johnson took his seat at 10 a.m., and the adjourned case of Galbraith v. Harding was proceeded with. John Harding, sworn, deposed: I am a runholder, residing at Mount Vernon, near Waipukurau. I know the plaintiff, Mr Galbraith. Very eaily in the year ho called on me and asked me to sell him puO sheep, v/hiqh I did at 8s each';' He catyst a ; fe\V 'days Afterwards'and asked■•me if i would sejl''hitn all the sheep I 'wished to dispose of that season. I said I would if we could agree. I then told him the description of the sheep I wished to dispose of, and the number, Tjie number was about 4,000

including the 500 I had already sold. I told him there would bo about 1000 merino hoggets to be delivered at Mount Vernon ; and 2,000 merino ewes. Mr Wilson objected to this evidence, there being a written contract. Some discussion then ensued, Mr Lascelles arguing that the evidence was of a verbal understanding, which was not in any way opposed to the written contract, and was admissible. The point sought to be established was that it was agreed that a portion of the sheep were to be delivered at the Mount Erin station, and Mr Lascelles pointed out that this point had been admitted by the plaintiff, G-albraith. Witness continued: I know the contract marked A. Before the contract was signed some conversation took place at the time of signing the document about the place where sheep were to be delivered. It formed a part of the preliminary arrangements, just before the signing of the contract. I stated to Galbraith that a portion of the sheep were at Mount Vernon, and another portion at Mount Erin. The invariable rule is for the purchaser of sheep to take delivery at the drafting yards of the seller unless there is a special agreement to deliver elsewhere. Early in March Galbraith came to take delivery of the sheep. We commenced drafting on the day Galbraith came. The weather had been very bad. He came on a Wednesday, and the Mount Vernon portion of the sheep were ready for delivery on Friday. As the sheep passed through the alley, he ruddled those that he approved of, about fourteen (or fifteen hundred wethers. We then came to the two-tooth ewes, and Smith, as Sheep Inspector, examined them, to see that they were free from foot-rot. These young sheep were put aside. We then went to the old flock. Smith caught one or two of the worst sheep in the flock, He passed one or two. He caught another, which he said was a broken-mouthed sheep. I denied it, saying it had all its teetli. I have been a sheep-farmer twentythree years. A full-mouthed sheep is a sheep from six years old till death, whatever may be its condition, even though a crawler. The rule in the trade is, if you buy full-mouthod sheep and do not wish to take broken-mouthed, they must be specially excepted. A broken-mouthed sheep is one that has lost one or more teeth. Galbraith raised no objection; it was Smith Avho took the objection. I said I was not bound to exclude a single sheep ; but he might reject any that had lost a tooth. They examined no more after that—they only looked at two or three altogether. After this one of the men brought me the notice marked C from Galbraith. I went and reasoned with Galbraith, because I was anxious to dispose of the sheep, as the foot-rot was breaking out amongst them ; but he would not take them. I said that unless he took them I would never sell him another sheep. My son, Crerar my shepherd, and Henschky were there, also Mr Collins. By Mr Wilson : I may have heard that Smith was acting for some one to whom Galbraith had sold the sheep ; but had no knowledge on that point. A sheep with all its teeth, though they are worn and useless, is not broken-mouthed. _ A sheep has eight incisors in the lower jaw, with which it crops the herbage. These sheap were not crawlers, —we had picked the crawlers out. I would have given 3s each for them. I swear most positively that I did not say they must take the sheep even though they could not erawl out of the yard. I did not say they should take every sheep in the yard, and that they would get still worse at Mount Erin. Turner, Smith, and Galbraith were present. I did not say anything of the kind to any of them. I have no recollection of Smith saying that the sheep could not cross the river or even the road. I have no recollection of saying that if he got the sheep out of the yard, I had done with them. By Mr Lascelles : I do not believe I said anything o£ the kind ; I have not the slightest recollection. Eechab Harding, sworn, deposed : I am the son of the last witness. 1 know puncan Galbraith the plaintiff ; I remember bis coining tp Mount Vernon on, Monday, the 3rd fit Marc}}, in yery wet weather, for some sheep. I saw him, a-fld $<M h>m we had sheep in the paddocks, but it was too wet to deliver them, I told him to come the next day, and he came. He came on Tuesday ; and began to take delivery on Thursday. Wc gave them the wethers first, and drafted off about fifteen hundred. Mr Galbraith counted them and passed them. The next lot were some young ewes. They were in the yard, and Smith inspected them j he complained that they were mostly lambs, but Galbraith approved of them, and said they were very good sheep. We then came to old ewes. They were inspected by Mr Smith. Defendant inspected some of the sheep. He objected to a number as diseased. These we drafted out into another paddock. We wished Galbraith to take the rest, but he objected to some of them; my father said he might reject any that had lost a tooth. They objected to some, which were put in the paddock with those set aside by the inspector. At last they came to sheep 'about* which a dispute arose, my father saying it was not broken-mouthed. I saw the sheep, but could not see its mouth. I went away a few minutes, and when I came back, saw the notice marked C. I saw Turner there, and told him that it was quite impossible to deliver the sheep by that time mentioned; and that some' of the" sheep had tp come fr.om Mount' Eri'ri station. 1 alsotojd him that I could have them -all ready by' the following Tuesday. He said there was nothing in the agreement about where the sheep were to be delivered, and he cpuld demand jthe'm' thcjje, and at that time. I djd not pjess hjun tp 'take the sheep. ' I doia'f Q : a}br'ai\h saying a' wprd to rap abouj; it- f lf}° #PP ty°F e Pl d ewes - I have' spent most of my time among sheep fpr- eighteen years past, They were worth 3s Gd a head ; We had refused to take §s per head for 500 of these wethers, By Mr Wilson: I knew Smith and Turner had objected to the sheep which were tendered at Mount Vernon. A number of the Mount Erin sheep were of the same kind as those objected to at Mount |/ep f on. I understood from the notice giveh'by Turner, that ijedjd not intend to take'the sheep, i': A-broken-mouthed sheep ls'one that has lost ? it's teeth.'' 1 ' Qrte'Hyitq all its teeth is not broken-mouthed. By the Court: A fuli-moutl)e4 sheep is pne'that hap ftjgltf grass feefh,. The term refers f?ple]y tP t|ge, and it is £ullt mouthed- frpm a'bput fpuv yeans old till death, A shepp may b,P hpth/fnlknonthed and broketwnontbed-therp is uq contradiction in the terms. When fidl-mouthed sheep are sold, broken-mouthed are often (specially excepted. • Alexander Orerar, sworn, deposed: I am a shepherd of thirty years' experience. I was at Mount Vernon in March when Galbraith and others came from the sheep. I was in the yard wjiep they drafted ; l saw Smith picking out' some lame and .bad sheep |'. the/ wore' itafldi out on the njn again, 'I saw' the sheep; wtychjwere left in the yard; they were all quite fit to travel. A f ull-mouthed sb,ee|) i|s pn.a that is over four years o£ age,

Witness, being asked if a sheep which has lost its teeth is full-mouthed, replied : I don't see how it can be full-mouthed if it has lost its teeth ; but if the teeth are only worn or separated from age it is still full-mouthed. By Mr Wilson: A broken-mouthed sheep is one that has lost some of its teeth ; it is not broken-mouthed if the teeth are not actually gone ; that is the custom where I come from. Mr Wilson : Oh yes. No doubt—at Mount Vernon. Witness : In Scotland. I come from Perthshire. Henry Robert Russell, sworn, deposed : I am a member of the Legislative Council. Mr Wilson objected to the Legislative Council. His- Honor could not see on what ground. He had already entered the fact upon his notes. He had yet to learn that a man was any the worse judge of fiheep through being a member of the Legislati va Council. Witness continued : lam a runholder, and have had about twentj'-one years' experience in buying and selling sheep. I have been living in New Zealand since 1852.

By his Honor: I have both sold and bought full-mouthed sheep during the whole twenty-one years, and have been acquainted with the dealings of neighbors. I understand a full-mouthed sheep to mean one with a full complement of teeth—that is, one that has attained the age of four or five years, and that term is employed to designate the age of sheep, and not the condition of the mouth. If I sold any one full-mouthed sheep, I should consider they were bound to take all sheep that had attained the full amount of teeth, irrespective of the state of the mouth. If there was any intention existtng on the other side to exclude defective-mouthed sheep, the words "no broken-mouths" would be included, to show that such was the intention. A sheep which has attained the full number of teeth is full-mouthed till death —there is no antithesis between broken and full-mouthed. The term " fullmouthed" refers to age, and has no reference to condition ; " broken-mouthed " refers to the condition of the mouth.

By Mr Wilson : A sheep with broken and dilapidated teeth, though still possessing the full complement, I would call broken-mouthed, though stillf ull-mouthed. If I were to buy a thousand full-mouthed sheep, and the bulk of them were crawlers, I should consider that the other party had fulfilled their part of the contract, but should think I had made a bad bargain. I should consider myself rightly served for not inserting " no broken-mouths and crawlers." Ido not say I would not complain, but could not say that the contract was broken.

Henry Stokes Tiffen, deposed : I am a Justice of the Peace, a runholder, and a sheep-farmer. I have had twentyeight years' experience with sheep, buying and selling. There is a uniform meaning attached to the words " full-mouthed sheep," in contracts, according to the cus* torn of this country. All sheep having eis;ht grazing teeth fully developed, are full-mouthed. Between four and five years they have teeth fully developed. They are full-mouthed sheep from that time as long as they live. "Full-mouthed" is an expression relating to age ; brokenmouthed sheep are sheep who, from defective teeth, feed indifferently, and are hardly able to get their living. In all contracts I have ever entered into for fullmouthed sheep, the addition has been made, " with the privilege of rejecting broken-mouthed." A contract for fullmouthed sheep includes broken-mouthed, unless there is an express stipulation to the contrary. I never heard the term " broken-mouthed " used as a contradiction or antithesis to " full-mouthed."

By Mr Wilson : If I made a contract for thousand sheep, full-mouthed, I should think the other party had fulfilled his part if he delivered a thousand crawlers; but I cannot imagine myself making such a bargain. If another person was so foolish, I would think the vendor quite right in selling him crawlers, and should think foe. wmiict deserve tp get them.

John Buchanan deposed; lam a grassier, I have had twelve years' experience in. buying and selling sheep in this Province. I doubt if there is any uniform custom with regard to full-mouthed sheep. His Honor said that the evidence of this witness was inadmissible. It was only on the assumption that there was a uniform rule, that it could be admitted.

Frederick John Tiffen deposed : I am a sheep-farmer; and have been so since 18-15. I consider there is a uniform custom in this country as to the meaning of a full-mouthed sheep. I believe sheep at the age of four or live years become fullmouthed, and remain so to the end of their life, though they may be broken-mouthed and crawlers.

By Mr Wilson: I would consider myself justified in selling full-mouthed sheep, with no other stipulation, if the bulk of them were crawlers, and would consider the purchaser bound to take them if he had made such a loose agreement.

J. A. Turner was here Recalled, on, tlm application' 1 of' Mr Wilson, who merely wished to get him to repeat a portion cjf his previous evidence. Mr Lascelles objected.

His Honor thought it a dangerous prao tice. There was, no principle against it; but it wquld set a had example. \t was objectipnab|e, as giving the witness the last were!—an' to drive hail.—Evidence 'disallowed. Mr Lascelles rais.ee- the objection that there was nfl proof that the stamps on the agreement were prppeTly cancelled, ' m Wilson, said this objection was raised far'top late in the cage.-—Considerable discussion ensued on this point, Mr Wilson expressing his readiness to pay the penalty, if the law had not been complied with, His Honor doubted whether that would set it right; but he would allow Mr Wilson to call evidence to prove that the si amps had been properly cancelled at the time of signature. Mr Rechab Harding was called to prove this ppint, but was not found. Puncan Galbraith, recalled, deposed: I saw Reohab Harding write his nam?) across the s^amp. : ,: " '• '»' • ; iJrLcisce^es'maintained that the agreement was not proved, ' "' "• His llonpr< | hold, on examination, that the stamp is insufficiently obliterated, and the agreement therefore void. Are you prepared to pay the penalty, Mr Wilson ?

Mr Lascelles : I maintain,'your Honor, that the document cannot now be put in evidence. It is too late to admit it on payment of the penalty. That should have been done before it was read.

Mr Wilson : My learned friend should have raised the objection beforehand. We will pay the penalty—it need not be dpn_e hcfqre \.\}& objection is. raised/ •; His Honor: As at-present advised, I ho}(i thaftupDn payment of th's penalty' the] document may be received, stadjped' by; the oncers of the Court, mi go to M

Mr Lascelles asked that his objection should he noted, which was done Mr Lascelles then addressed the jury. He had already intimated the nature of the defence he would offer, and he now maintained that he had satisfactorily proved his case. It was shown by the other side, that of the sheep tendered for their acceptance they had agreed to take the whole of the two-tooth, and fourteen or fifteen hundred wethers; and also that they were aware that a number of the sheep were to be delivered at Mount Erin. That very serious mis-statements had been made on the plaintiff's side was plain from tho discrepancies in the evidence. The plaintiff had sworn that he was not allowed to pick the wethers according to agreement, and that he protested against it; Mr Turner swore that the plaintiff did pick the wethers. Galbraith said that about the sixth ewe examined was broken-mouthed, and he refused to go any further; if Turner was to be believed, the greater number of the six hundred ewes were examined and found to be broken-mouthed ; Mr Smith, who was there the whole time, examined two, perhaps three, and saw no one else examine any. Tho plaintiff stated, and reiterated very positively in cross-examina-tion that he gave his notice personally to Mr Harding; Mr Harding, Mr Eechab Harding, and Turner, all deposed that it was delivered to him by Robinson. The evidence they had heard that morning, from gentlemen of experience, as to what constituted a full-mouthed sheep, showed that Mr Harding had fulfilled his part of the contract; and if he had used the language attributed to him, he would still have been justified by the terms of the agreement. But he had shown that the bad sheep had actually been drafted off, and that until the plaintiff became utterly unreasonable, Mr Harding had agreed to throw out every broken-mouthed sheep—thus showing that he had no intention of driving a hard bargain, or holding the plaintiff to the strict letter of the agreement. The plaintiff's witnesses could not agree as to what constituted a brokenmouthed sheep ; Mr Peacock said it was broken-mouthed when its teeth grew too long—others, when they were worn or broken off short. But the grand idea was the one propounded by the übiquitious Mr Smith—that a broken-mouthed sheep was one " past its prime " —so that they were entitled to reject every sheep they might consider- past its prime. Such a definition would be utterly subersive of the whole custom and usage of the country. Had Mr Smith not been there, it was evident that no objection would have been raised; but it was evident that the breach of agreement was on the part of the plaintiff; who sought to fix on the defendant conditions which were never contemplated in the contract. Mr Wilson said that after the miserable objections the jury had heard about stamps and other things, they would be glad the case had come so near its close. He would not trouble them long. It was plain from the first that defendant never intended to fulfil his agreement. There was a conflict of evidence as to the term "fullmouthed" and the evidence of men of experience had failed to settle its meaning conclusively ; but it was absurd to suppose it could allude to a toothless crawler. Defendant's conduct had not been straightforward, and even if justified by law was exceedingly shabby and dishonest.

His Honor : Do I understand you, Mr Wilson, that a man is guilty of exceeding dishonesty in carrying out a bargain according to the law and custom of the country ? Mr Wilson : When you sell anything, you guarantee its quality. I don't know what the custom of the country may be—there seems to be a good deal of sharp practice in sheepfarming as well as in everything else—hut one good custom is that people should be reasonably honest. His Honor said the whole question was reduced to ono point—whether the defendant was justified in offering the sheep tendered as full-mouthed—if so, there was no cause of action ; for no question was raised about the two-tooth sheep,—or picked wethers. In a case of this kind, parties must be bound by the custom of the country, and were not at liberty to place their own private interpretation on the agreement. The plaintiff maintained that a full-mouthed sheep should have available teeth ; but a considerable body of experienced persons in good position, maintained the contrary. This was really the sole point in dispute. It might be urged that the bargain was inequitable if each sheep had been sold for 4s 9d ; but such was not the case. Estimating the young sheep and picked merinos at their value, the plaintiff would probably not pay more than Is per head for the full-mouthed ewes. There was nothing improper in selling old sheep ; and in a large flock there must be a proportion of fat and lean, of weak and strong, unless special exception was made. If they believed the sheep tendered were properly described as full-mouthed, they must find, a verdict for the defendant; if not, they would have to consider the question of damages, if any ; and on this point |;e wpuld remark that the wildest estimate pi the <J a "WS e wotjlcl scarcely exceed £3QO.

The jury, after retiring, returned a verdict for the plaintiff with £250 damages. Mr Lascclles asked for a day to be appointed to move for a new trial, the verdict being contrary to evidence. H,is, J-Jpnov had no doubt that he would Jssue a yule nhi, and he would give Mr Mr kascelles an opportunity to move for it.

The jury were then discharged, and the Court adjourned till Saturday, at 10 a.m.