RESIDENT MAGISTRATE'S COURT

Nelson Evening Mail, Volume XIV, Issue 159, 5 July 1879, Page 2

RESIDENT MAGISTRATE'S COURT

! The following reserved judgments were delivered this morning by the Resident Magistrate : — Saxton v. Mabin. The plaintiff in this case sues the defendant for £44 Us 9d, balance alleged to be due upon a sale of 328 bushels of malt. It is contended for the plaintiff that the general business arrangements between Mabin and one Hogg were of such a character as to make the former responsible for what the latter did in disposing of this malt, in short that Hogg acted as Mabin's agent. It becomes necessary, therefore, to enquire what the general arrangements between Mabin and Hogg were, and then to go on arid see how far the present case can be said to influenced by them. It seems that Hogg was a maltster and a seller of malt, and that for the purposes of this business Mabin used to make him advances, sometimes in cash, more frequently in barley. Mabin was to be repaid these advances out of the sales of malt, and 5 per cent in addition for his commission. Hogg sold the malt, and when the sale was upon bills they were always drawn by Hogg, and then handed to Mabin. Hogg sold a good deal of malt for cash, but he does not appear to have given any of that to Mabin. Before selling on bills, Hogg, as a rule, consulted Mabin, and that seems natural enough, as Mabin was directly interested in Hogg selling only to solvent persons, as it was by such sales alone he could hope to get back his advances, and be paid his commissions. The entire profits made upon the sales of malt were Hogg's, he had simply to pay Mabin a commission of 5 per cent. Now upon these facts it seems to me that Mabin was acting as a sort of banker for Hogg. He gave him advances from time to time, either in cash or barley, for the purpose of assisting him in carrying on his trade as a maltster and malt seller, his own advantage in the matter being the commission. It follows, then, that Hogg was the owner of the malt, and that in making sales he was selling for himself, and not as Mabin's agent. That is the conclusion I have come to upon the character of the.'general transactions between them. Now, as to this particular case, it is proved that to February, 1878, Mr. Saxton left barley with Hogg to be malted. Hogg proceeded not only to malt it but to sell it too, for he said he supplied Stewart's order but of Sastoji'sinalt, and that-jale.w^sfliflfie 1 before this transaction, between Mabin and Sazton. In March,' Saxfon; who, no doubt, was \a complete ignorance; of the fact that soine of his barley bad, already been malted and soldly Hogg, applied to Mabin for an advance, and the latter having received from Hogg an assurance that the barley was actually in his malt house, agreed to make an advance of £45, and upon the 2nd April, he paid the money, and received a receipt in the following fo.ni : " Received from Mr J. R. Mabin the sum of forty-five pounds, being advance] on parley left with J. Hogg to be malted, and sold by Mr Mabin on my account. Mabin to sell at 5 per cent, and 2* per cent for guarantee.— (Signed) J. W. Saxton." The arrangement between Saxton and Hogg was that the latter was to be paid Is 6d bushel for bushel for malting. Some of this malt was supplied to Mabin, but it does not appear he knew whose malt it was, nor had he knowledge that the malt sent to Stewart was Saxton's malt Had he been shown to have had such knowledge, and to have taken Stewart's bills as a payment on account ofrSaxton.the caae would he different, as he then might be held to have adopted Hogg's 1 pets. But it seems to m« that Stewart's J

bflls, which irere, aa usual, drawn by BtogKV wtjre taken by Mabin as a payment fo be placed to Hogg's cjedit on the* general account btetween them. It is quite evident that when Stewart's ordet was supplied bj^lpggx. there was no knowledge on the partorMabiu that Hogg bad any malt of Saxton's, and the fact of bis taking Stewart's bills does foot therefore prove that he adopted Hogg's act in selling Saxton's malt, but in view of their general transactions, that be took them, as already staged, as payments on iaceotafe/ Whatcremained of Saxton'a proper^ app&rtl to have been mixed with other lots of malt and disposed of by Hogg. Mr Mabin certainly seema to bava been singularly -m~ different as to what had become of Saxton's malt, at any rate he made no enquiry about it for some time, but I cannot say that that is sufficient evidence of -his having. adopted what Hogg had done in connection withifc.' I have come to the conclusion (not without n Sgtae.d*fflcnlty) that I cannot agree with the jprotfdtCoaiißel for the plaintiff, that Hogg Sas lactlflgaa Mabin's agent indisposing of malt, nor can I concur in the view of tfieiearned Counsel for the defendant, that Hogg must have been acting as Saxton's agent. It seems to me rather thatthe barley havine bjen left -with HpggM Ssfiton for a JPSHf' *bat jra WrooSftlly took ana aonvertieafstto hia own ttse, applying the malt, or the proceeds of it, partly in reduction of,Mabin's claim against him, and putting the balance into big own pocket. Therefore I think the defendant is not liable to the plaintiff in this action. Judgment for defendant, \tith coats £2 as. ;'?} ■> > Miabitt'o^aaxtm.' ?r..i The plaintiff sues defendant for a return of the advance made to bim upon a Contract for the sale of malt. The malt does" not appear to have reached the plaintiff's hands too; fas. n^t sjpg By him, but, as it appears to' me, was wtongf uUy. converted by the maltster, to whom defendant had entrusted it Ine plaintiff is, therefore, entitled to judgment for the amount claimed, and costs A2 o3«