SUPREME COURT.

New Zealand Times, Volume XXX, Issue 4543, 12 October 1875, Page 2

SUPREME COURT.

Monday, October 11,

(Before his Honor the Chief Justice, without a jury.) TODD V. CAMPBELL.

This was an action brought by Andrew Todd, of Wanganui, against William Campbell, master of the ship Dallam Tower, to recover £lO7 for non-delivery of goods in terms of bill of lading. Mr. Gordon Allan appeared for plaintiff, and Mr. Travers for the defendant.

The learned counsel opened the case by reading the declaration, pleas, &c., and stated that forty-six cases of glass had been shipped by the Dallam Tower, on 12th December last. As appeared on bill of lading, the mark was A.T.W., and they were numbered from 472 to 517 ; a further evidence that they had been so marked was to be found in the fact that in the body of the bill of lading it was written, “ Contents rattle, numbers 506, 480, 484, 490, 500,505.” When the ship arrived in Wellington it was found that there were no cases so marked, and plaintiff therefore claimed £lO7 damages for non-delivery and loss of profit owing to non-sale of the goods.Andrew Todd proved that he was a merchant, carrying on business as a merchant at Wanganui, and had an agent in London named Bernard Lewis. In the course of last year ordered some glass from Lewis, and subsequently received a bill of lading from him [bill of lading put in], as well as a general statement with foreign invoice [both put in]. Had to pay £BS for goods, less £l2 6s. 6d. for some other goods. £72 13s. fid. is the wholesale price in London ; freight would be £6 9s. 9d. The articles specified in the bill of lading had not been received. A portion had been sold to arrive. The market price in Wellington is an advance of £IOO to £l5O per cent, upon the foreign invoice. Cross-examined; I glanced at some cases on the wharf, pointed out to me by my agent, Mr. Young. He said there were several cases landed in very bad order and not having numbers corresponding with the bill of lading. I am not aware that there was a fall in the price of glass in April, the time the goods were lauded. It was foreign glass, and I had on several previous occasions imported similar glass from Mr, Lewis. The foreign invoice gives a description and the sizes of the glass. I did not take any step to ascertain whether the glass on the wharf corresponded with the invoice; my complaint is absence of the numbers 472 to 567. Ido not know that the mark A.T.W. was upon all the cases. I have not taken any steps to ascertain whether they were the cases shipped. I was told that the glass was in bad order. I did not ascertain whether the glass contained in the cases corresponded with that mentioned in the invoice, because I leave all my business to my agent. It is, the absence of numbers, and not the nature of the shipment, that I complain of. Thomas Young, partner in the firm of T. and W. Young, and acting agent for plaintiff, deposed : Early in the year, about February, I received a bill of lading and intimation of the landing of the goods. Enquired about the goods in the beginning of April, and found them on the wharf ; at least goods on the wharf were pointed out to me by the wharfinger as being the goods after which I was enquiring, viz., those marked A.T.W. I examined them, and found all wooden cases, but they did not correspond with the bill of lading. I could find no numbers. There were numbers upon them, but they did not correspond with the numbers given in the bill of lading. The condition was bad, fourteen or fifteen wore crushed and more or less broken, with lids wanting, &o.; the others were not in bad order. I sent my clerk to examine them more minutely, and upon receiving his report I wrote to Mr. Todd; and on receiving an answer from him made a claim for £lO7 for non-delivery. I refused to accept the goods. The claim has not been paid. To Mr. Travers : I presented the bill of lading to Johnston and Co., paid freight, and got an order. [Order put in.] It is the ordinary form of order ; the instruction to the person to whom the order is issued is to get the goods and ship them per Manawatu, a vessel trading to Wanganui. I sent the order to the wharfinger, and empowered him as my agent to receive and ship the goods. I believe he did receive the goods. I examined the goods after he had received them. I made a minute of the numbers on the boxes, and a description of the boxes ; in some instances the numbers and the sizes marked on the cases corresponded with the foreign invoice. I did not examine all. All we examined did correspond. It was in consequence of the general bad condition of the shipment, and not merely the absence of numbers, that I rejected the shipment. If they had been in good order I would not have hesitated to’ take them merely in consequence of the absence of numbers. The general appearance of the cases led me to believe that it was foreign gloss. To Mr. Allan : The goods are first landed, and then wo get the order, which is addressed to the wharfinger ; we take the order to the wharfinger, and tell him what to do with the goods. I found the goods on the wharf. I told the wharfinger I would not accept them, and then saw the captain and Johnston and Co.

To his Honor : The captain did not say the

wharfinger had received the goods, and I could not reject them. The captain did say the goods are on the wharf, and are your goods.

Mr. Allan • D,,* - *'• _ 1 been received, and we will not take them back again ? Witness : No. If the glass had been in good order, of course we would not have refused the cases, but there would have been some delay, because the Customs required them to be fully verified ; the Customs had refused to allow them to be shipped until the numbers were verified.

Charles Samuel Knox De Castro proved that he was shipping clerk to Messrs. T. and W. Young. Remembered receiving some instructions with regard to goods said to have come by the Dallam Tower for Mr. Todd ; compared some goods on the wharf with the particulars given in the bill of lading, but found they did not correspond. There were forty-six cases marked A.T.W. Made notes of the difference as he examined each case. This paper [put in] contains a list of the cases, giving particulars of the number and condition of each case.

Cross-examined : We have received a good many cases for Mr. Todd ; the list is marked “ A Todd’s glass, Dallam Tower, condition.” I put that merely as a memorandum. Mr. Young, recalled, stated : When I went to Johnston and Co. I asked particularly for the cases numbered 506, 480, 484, 490, 500, and 605, mentioned as shaky. Mr. Travers : You have dealt in glass. What profit do you generally get ? Witness : About 10 per cent, advance on cost in Wellington. Mr. Allan said that was the case.

Mr. Travers admitted that the numbers were gone, but said he would show there were forty-six cases which were in every other respect identifiable with those mentioned in the bill of lading. There was a peculiarity in the bill of lading, namely, the words “contents rattle” were written by Captain Campbell, but the numbers were written by an unknown person ; however, little hung upon that, as he should be able to show that the contents of these cases corresponded with the foreign invoice.

His Honor : Are there no numbers ? Mr. Travers : Not a trace, and the discrepancy cannot be accounted for. But seeing that the number of cases were forty-six, that the glass answered the description of glass mentioned in the bill of lading, and all were marked A.T.W., it would be a peculiar coincidence if it were not the same. He contended that the identity would be established by the evidence, and also that there had been actual delivery and acceptance, as the goods had been handed over to the wharfinger as agent of Mr. Young. The goods were undoubtedly the same, and advantage was taken of the absence ef numbers as a pretext to bring against the ship a claim for non-delivery. Charles Johnston, a member of the firm of Johnston and Co,, who had been agents for the Dallam Tower, deposed : Shortly after the vessel discharged Mr. Young made a claim against the ship for non-delivery of glass. We examined these cases, and found them corresponding absolutely with those mentioned in the bill of lading, except in numbers. The usual form is to pay freight, and then receive an order for delivery. Shortly after the arrival of the ship freight was paid and the usual order given. To Mr. Allan : We give an order upon the wharfinger. Mr. Allan : Then he is your agent ? Witness : No.

Then why do you give an order upon the wharfinger ?—Because the goods are put upon the wharf and are in his custody. Then does not the wharfinger become your agent ?—I don’t know exactly how that is. He takes the goods for the consignee, but cannot let them go till freight is paid. If the freight is paid the ship loses her lien for freight ?—Yes. Then when you gave this order on the wharfinger did you consider the ship still had a lien ?—The freight had been paid. Before it was paid did you consider you had a lien ?—Yes.

Cross-examination continued : The question of delivery did not arise; the captain merely said, “ These are your goods,” and we then examined the goods. Re-examined: There was no doubt as to the contents.

To his Honor : Mr. Young did not say anything which led me to suppose he believed the glass in the shed was not the glass mentioned in the invoice ; in fact, he almost said if the goods were in good order he would have taken them. In further examination witness stated that he had received the goods from the ship on behalf of Messrs. Young, and through his clerk notified to the ship that the numbers were missing; and it was attempted to be shown that the plaintiff had accepted delivery through witness.

His Honor was not disposed to accept that, because it had been proved that complaint had been made by Mr. Young at the earliest moment.

J. T. Backhouse proved that he was clerk to Mr. Jackson, and discharged the whole of the Dallam Tower’s cargo. Kept a record of the whole of the consignments. There were four different lots of glass. One lot was marked “ E. W. M.,” in diamond, which went to Mr. Mills ; another lot was marked “ W. W. T.” over I in triangle : this went to Mr. W. W. Taylor ; another lot was marked “ B. R. over 127 in triangle, which went to Wanganui ; and another lot was marked “ A. T. W.” in diamond—the glass in dispute. He gave evidence respecting the landing of the glass ; stated that he had called attention to damage, and also further stated that he had handled many hundred cases of glass, but had never known that cases of foreign glass bore the importer’s mark. Some of the cases had been mended by the carpenter of the ship after they were placed in the shed. Gillies Morton, clerk to Johnston and 00., proved that he had made an examination of the cases, and produced a minute containing descriptions of the cases, the result of the examination. [The particulars given in this minute were compared with the foreign invoice, and were found to correspond, excepting that four cases were put down as being in size 28ft. x 15ft. in place 21ft. x 18ft.] This was the ease for the defendant. Mr. Allan addressed his Honor on the case, contending that the bill of lading was conclusive evidence, and that the consignee could not bo forced to accept delivery. His Honor reserved judgment, and intimated his intention of viewing the cases.