AN INTERESTING CASE.

New Zealand Times, Volume XXXIII, Issue 5498, 9 November 1878, Page 3

AN INTERESTING CASE.

A case interesting 1 to mercantile men was heard in the Resident Mngistr ite’s Court yesterday, before the R.M. Mr. John Waldegrave, of Palmerston North, sued Messrs. Ellaby and Callis, brokers, of Wellington, for £97 odd, alleged to he due on account of a consignment of potatoes. The plaintiff was represented by Dr. Duller, and defendants by Mr. ,-ffevwright. Dr. Buffer, in opening his case, read a mass of correspondence between the parties, from which it appeared that about the middle of August last plaintiff agreed to sell defendants a quantity of potatoes, some fifty tons, at £i ss. per ton if delivered on Wellington wharf, or £3 15s. if delivered on the Foxton wharf, the arrangement being that plaintiff was to bo advised when defendants required them. On 10th September plaintiff was requested by telegram to ship the potatoes. Ho replied that it w mid tako a fortnight to get them out of the pits and cart them to the railway station. He trusted that would suit defendants, but if they pleased the bargain could be cancelled. Ho repeated that the price was £1 ss, at Wellington, or £3 15s. at Poston j bags to bo charged for at the rate of 7d. each. Defendants replied that the potatoes were to bo sent at once, that they chose to take delivery at Wellington, and that the price of bags should be 6d. In reply plaintiff wrote promising them in a fortnight, and regretting that the quantity would not be so large as he had anticipated, because on opening the pits ho found a good many had gouo bad. About the 26th of September plaintiff sent 27 tons of potatoes to Foxton to be shipped to defendants, and wired them to the effect that the Tui would bring down 27 tons, or 325 bags, and advising them to look out for their arrival. But by some mistake they were consigned to Plimmer, Reeves, and Co., and were carted to the stores of that firm. Correspondence by telegram and by post passed between the parties in order to clear up the mistake. On Ist October defendants wrote pointing out that in consequence of the delay in delivery they had lost the sale of the potatoes, and that the extra charges in the shape rf wharfage and carriage would cost them 10s. a ton, and asking plaintiff to allow them this amount or they could not tako delivery. On the 3rd plaintiff replied agreeing to pay actual charges, and after further correspondence on the 14th sent hia account and askeddefendanta to accept the accompanying bill and return it,promisingon 21sttoallowfor short weight. Another ten tons of potatoes had been sent by plaintiff to defendants in the meantime, and about this lot there was no 'depute, except as to alleged short weight. All affairs having been settled on 25th Bllaby and Callis gave a delivery order to Plimmer and iloevea ; but while this correspondence had been proceeding the potatoes wont bad. The Inspector of Nuisances ordered thoir removal, and they were sold at the instance of/

Plimmer and Reeves. Defendants repudiated the whole thing then, and this action was brought to recover the value of the potatoes, it being alleged by plaintiff chat defendants had repudiated the bargain in consequence of a falling market. John Waldegrave, the plaintiff, after giving evidence in terms of counsel’s opening, said he understood when he agreed to pay 10s. per ton by way of allowance that the whole dispute was at an end, and then sent a second shipment of ten tons. He was greatly surprised at defendants repudiating the bargain. He could have sold the potatoes in Palmerston for £4, but he shipped at a loss in order to carry out his bargain. When ho wrote that a good many potatoes had gone bad he did so under misapprehension. Mr. Sly, the grower, had said he would not have so many as he expected, and he (plaintiff) assumed some had gone bad. By Mr. Sievwright : Had sold the refuse of tho pits out of which these potatoes came for £4. Was not present when the potatoes were bagged. It was part of the bargain that the potatoes were to be paid for by a bill at three months. C. J. Sly, the grower of the potatoes, proved that they were delivered to plaintiff in good condition about the middle of September. These were exceptionally good potatoes. He made a speciality of potato growing, aud he was hoted for growing good ones. These potatoes were dug in March ; they were carefully disposed of, aud according to agreement only large good potatoes were sent to plaintiff. The potatoes were picked over, and a very few had gone bad. Mr. G. M. Kebbell, clerk to Bishop and Co., agents for the Tui, proved that she began to discharge these potatoes on the 25th September, and all were landed about dinner- time. On 106 bags Plimmer, Reeves, and Co, paid freight, and ho told them there were 325 sacks consigned to them of which they knew nothing. Failing to find the consignee, he got Plimmer, Reeves, and Company to store them, who gave a cheque for the freight, but which was held over by Bishop and Co. Next day, or the day after, he went to defendants and told them what had been done. So far as he knew the potatoes were landed in good condition. Ellaby and Callis said they wanted the potatoes for transhipment to the Bluff. They paid the freight in the end, and got a delivery order. That was after the potatoes were advertised for sale. When the potatoes arrived the market was active. J. A. Plimmer proved that the potatoes were stored with his firm on 25th September, and remainad there for six or seven weeks. Part were upstairs, and part were in the cellar; in fact, in the hold of Noah’s Ark. After they had been there throe or four weeks they began to smell greatly, and notice was given to all parties concerned. That having no effect they were advertised for sale. Freight was demanded of Ellaby and Callis, because they had got a delivery order. 106 sacks were brought down in the same steamer for his firm. There wore no distinguishing marks, aud in selling he took the first 106 sacks. There were no complaints about them. To Mr. Sievwright; Should think good dry potatoes should not go bad in so short a time as they did, but had not had much experience of Palmerston potatoes, having principally dealt in Canterbury potatoes. Held the potatoes for the steam company. Communicated with Waldegrave first, and then on getting his reply, that the potatoes belonged to defendant, wrote to them. To Dr. Buffer : Believed he had written to Ellaby and Callis, because they had promised to take charge of them. Potatoes declined shortly after thi* shipment arrived. This was plaintiff’s case. Charles H. Ellaby, one of the defendants,said he had had great experience in potatoe dealing. • Good dry potatoes stored in September should not require sorting for two or three months. He confirmed the terms of the bargain with plaintiff as previously stated. When they agreed to take the potatoes they thought the smell arose from a few bags, and agreed to take them, in order to save Mr. Waldegrave great loss, but when they found they were so bad they declined to take them. They did not know plaintiff was going to allow 10s. per ton until his account was rendered.. Had never looked upon the potatoes as their property until they had taken them over. To Dr. Buffer : A second consignment had been received from plaintiff ; they were in a pretty good condition, but he heard that persons who had bought complained that the bags were damp. Remembered having on the sth Oct, written to plaintiff saying they would take over the potatoes if 10s. a ton were allowed, although the sale had been lost to them. Mr. Waldegrave did not reply eaying he would allow 10s., aud that was the reason defendants did not consider the concession asked granted, and left the consignment. That was why thirteen days were allowed to lapse before they touched the consignment. Besides, the second consignment was short weighed, aud that raised another question. Re-examined : It ‘ was a favor to take the potatoes, aud we did so because we felt sure Mr. Waldegrave would x*epay us any loss we incurred in trying to save the bulk, Mr. Caliis gave immaterial evidence. Mr. Johnson, Inspector of Nuisances, gave evidence to the effect that potatoes, if in good condition and properly stored, should not rot in so short a time as two months. These potatoes in Plimrner’s store were in a bad condition. To Dr. Buffer : Flimmer’s store is an improper place to store anything in; there are great stenches arising from the bottom of Noah’s Ark; but the potatoes should have kept if the doors and windows had been left open. To Mr. Sievwright: If the potatoes had been in good order when stored they could not have arrived at so bad a state in a mouth. Mr. Plimmer re-called: The potatoes in the upper store were worse than those in the lower store. Had never known potatoes go bad to quickly. James Walden, storeman, gave evidence as to the bad condition of the potatoes. They were unusually bad for the time they were stored. They could not have been good when put in. He had some potatoes which had been in store since the Ist September and were still in good condition. The rain had fallen on some of them in the mean time too. Had been storeman to Captain Thomas for seven years, James Sprounc, who had been a storeman for forty years, gave similar evidence. This completed the case. The Court reserved its decision.