BOOM AND SLUMP.

Hokitika Guardian, 13 July 1921, Page 3

BOOM AND SLUMP.

BUYING AT HIGH PRICES. LITIGATION OVER REFUSAL OF DRAFTS. WELLINGTON, July 13. A good deal of interest, among mercantile circles centred in the hearing on June 30th, of a case in which an Auckland firm of indent agents sued a Wellington warehouse firm, claiming damages for the refusal of drafts presented for the payment of cotton goods from New York that' were delivered in instalments.

Judgment was delivered hv His Honour Mr Justice Sim (Acting-Chief Justice) on Saturday morning in th 0 ease in which Messrs Connelly Bros., of Auckland, claimed £337 12s Id in respect of certain goods—cotton vests, ordered bv Kahn and Huggins, defendants, of Wellington, for which they.refused drafts on their arrival, on account of their late arrival. BULK DELIVERY.

The first defence set up by the defendant, said His Honour, was that th 0 contract between the parties was for the sale and purchase of all goods, comprising other articles of women s wear, in one lot, and that the defendant was not hound, therefore, to take delivery of them in instalments. In support of this defence, defendant relied on section 33 of the Sale of Goods Act, 1908. which enacted that, unless otherwise agreed, the buyer of goods was not bound to accept delivery thereof by instalments. In view of the fact that the order for the bloomers was to he sent by cable, and for the vests by post, the parties must have contemplated, lie thought, that there would lie a separate delivery of the bloomers. When they arrived, the <Jefendant accepted and paid for them without any question, although only an instalment of the vests had then arrived. His Honour thought, therefore, that, in the first instance, plaintiffs were entitled under the contract to deliver the bloomers in one lqt, and the vests in a separate lot, but were not entitled to deliver the vests in instalments. The defendant, however, did not insist on the delivery of the vests in one lot, but accepted and paid for the first instalment of 240 dozen, without, making any objection to this mode of delivery. When the next 180 dozen vests arrived the defendant refused to accept delivery, not on the ground of late arrival, but because the parcel was only an instalment of the balance. The same thing happened when the final instalment of 60 dozen vests arrived. The conclusion His Honour drew in these, circumstances was that the parties. by their conduct, agreed to treat the contract as one for the delivery of the vests by instalments. SHIPMENT BY INSTALMENTS.

His Honour referred to the contention in Benjamin on Sales that, where there was a. contract for delivery by Instalments, acceptance by the buyer of an instalment is a waiver by him of any objection tlial? the igootlfl were not delivered at one time. If, as His Hon. pur thought, the eontrnet- become pnfl

for delivery by instalments, it would! be the duty of plaintiffs to deliver the balance of vests within the contract period in reasonable instalments, but not necessarily in on e instalment THE RIGHT OF REJECTION. The next defence set up by defendant was that there was unreasonable delay in delivery of the last two instalments, and teat he was entitled therefore, to reject them. It was obviously impossible for Connelly to know tnat the goods wero ready, awaiting shipment, as H. Kahn said in bis evidence that he had told him. and it was highly improbably that he would make any statement of the kind. In the circumstances, His Honour said he was not prepared to accept the evidence of Mr Kahn, although it was supported by that of Mr Rouse. Plaintiffs when forwarding the order to New York, gave the usual trade direction inserted in such orders, when there was no stipulation as to time of delivery. Defendant made no objection to this direction, which was in th c copy of the order sent by plaintiff. The contract therefore was for delivery within reasonable time. REASONABLE TIME OF DELIVERY. “The evidence called on behalf of the plaintiffs,” His Honour continued “established that, last year, from six to nine months was a reasonable time to take for the execution of an order such as that given in the present case, and I find as a fact that the tender of the last instalments of the vests was made within a reasonable time after the order was given. The defendant has failed, therefore, to establish either of the defences set up, and the plaintiff is entitled to recover damages. It is clear that the plaintiffs are not entitled to recover the price of the goods, because it has not been established that the property in the goods passed to the defendants. The plaintiffs are entitled to recover damages for the non-acceptance of the goods to he assessed in accordance with the rule contained in section 51 of the Sale of Goods Act, 1908. ASSESSING DAMAGES. “The evidence as to market price is not satisfactory, hut the evidence of Mr Scott affords a basis on which to assess damages. Cotton vests could be sold, he said, at a drop of 20 per- cent on the wholesale price. T assess that damage at £75, and give judgment in favour of the plaintiffs for that amount, with costs, according to scale, and disbursements and witnesses’ expenses to 'be fixed by the Registrar.” Mr T. C. A. Hislop appeared for the plaintiffs; Mr J. Scott, appeared for the defendant.