SALES OF OATS

Hokitika Guardian, 13 December 1929, Page 7

SALES OF OATS

ALLEGED BREACH OF CONTRACT , WELLINGTON, Dee. 11. “The case has been very difficult and I would quite welcome an appeal,” remarked the Chief Justice (the Hon. Mr Myers), when lie had delivered his judgment in the Supreme Court to-day, in the case in which the New Zealand Loan and Mercantile Agency Co., Ltd., proceeded against Wright, Stephenson and Co., Ltd., claiming £5470, .plus interest at 8 per cent., and storage charges in respect of 5049 'sacks of oats, for alleged breach of contract.

His Honour said that the transactions involved in the action might he divided into two classes. The first consisted of two transactions each for the purchase by plaintiff from defendant of 2000 sacks of oats. The second consisted of a number of transactions, whereby plaintiff purchased from third parties, who had previously bought them from defendant, various quantities of oats, for which store warrants were issued by defendant to its purchasers, such store warrants being subsequently endorsed over to plaintiff. It had been contended, on behalf of defendant, that the parties were not hound by the provisions of the sampling and grading system, because these provisions were not expressly included or incorporated in the terms of sale. With this his Honour was unable to agree. It was difficult for defendant, he thought, to contend that the provisions as to the description of goods were to be regarded as applicable, and the provisions of the sampling and grading system disregarded as being inapplicable. “It is claimed,” said his Honour, “that the 4000 sacks included in the tw<) contracts in question were never appropriated to those contracts. It is contended, on the other hand, on behalf of the defendant that there was an appropriation, that there was consequently a completed sale, and that from the time when the grader certificates and store warrants were sent to the plaintiff, the defendant had no longer any duty as vendor, hilt was in the position of warehouseman or bailee. The point is important, because if the plaintiff’s view is correct it would seem to he entitled, as on a failure of consideration, to repayment of the priee of the goods, while if the defendant’s view is correct, either the .plantiff is bound to accept the goods, of, if it has any claim against the defendant at all, such claim would he only on the basis of damages for conversion, and in that case the plaintiff would be entiled to recover only the market price or value of the oats as in February or March, 1929, which would be very’ much less than the price that the plaintiff originally paid for the oats.”

His Honour’s judgment concluded as follows; “In any event the plaintiff has elected to bring this action, not, as I say, against its vendors, but against the defendant. it makes alternative olaims against the defendant. First, it claims as if the defendant were the vendor of these parcels. Alternatively, it claims damages for conversion. The relationship of vendor and purchaser did not exist between the parties in respect of these parcels of oats, and, in my opinion, the alternative cause of action is the real ground on which the plaintiff is entitled to recover. As between the parties the defendant is hound by the statements in the store warrants. It is claimed, and. I think rightly claimed, that the defendant failed to deliver the sacks of oats in accordance with the terms of its store warrants, (Irrespective of t'he question of appropriation the defendant would appear to be liable in damages

as for conversion. That being sc the plaintiff is entitled to recovei not as the plaintiff claims, the pric which it paid to its vendors for thes oats at the time of tlm tender by tli defendant (after being called for b; the plaintiff), and rejection by tli plaintiff. The plaintiff would hav bad no difficulty, had it so desired in purchasing oats of the same grad in the market.

“Judgment will therefore be (in re spect of both sets of transactions) fo an amount to be ascertained on tli lines that I have indicated. Couiisc will doubtless be able to agree upoi the amount, but if they have aiv difficulty in doing so, the matte .must be referred to me again, and 1 will either decide the matter myself or, if necessary, refer it to the Registrar for enquiry. The iMendaifl must pay costs in accordance wit! the scale upon the amount recovered together with witnesses’ expenses and disbursements.”

At the hearing, Air A. Gray, K.C.. and Air C. A. L. Treadwell appeared for the plaintiff company, and M’ H. F. O’Leary and Air H. E. Evam for the defendant company.