RESIDENT MAGISTRATE’S COURT.

New Zealand Times, Volume XXXIII, Issue 5502, 14 November 1878, Page 3

RESIDENT MAGISTRATE’S COURT.

Mr. Mansford delivered judgment in the following cases on Tuesday last : ■ WALDEGBAVE V. ELLABT AND ANOTHER. This cose Is of such a peculiar character that it will ba necessary for mo to enter more fully into the facts than I think as a general rule is desirable In magisterial decisions. The claim is for .£OS ITs. Cel., for 27 tons of potatoes, and in all probability would never have arisen but for an unfortunate mistake in tho potatoes having been consigned in error to riimmer, Keevcs, and Co., instead of tho defendants. time in tho month of August tho plaintiff agreed to sell to the defendants 50 tons o' potatoes, tho prico agreed being £3lss. per ton if delivered at Foxton. or £4 ss, if delivered in Wellington, it being agreed that lbs defendants were to let the plaintiff ftnow by letter or otherwise when they required th-m. The quantity - of potatoes actually delivered was not much In excess of one half of the quantity agreed to be sold, but this was not set up as a defence to tho action, and therefore requires no further consideration. On the 10th September the defendants telegraphed to the plaintiff, who resided at Palmerston, to ship potatoes by first steamer, and to adriso what quantity when shipped. To this the plaintiff replied it would be "impossible to send the potatoes by .first steamer; that ho understood ho was to have plenty of time to get them ready, that is to say, to put them in sacks and get them carted to the railway station to be forwarded to Foxton, where they would have to be shipped; but that he would hasten them all he could, and that if they were not all reqxiircd at once he would be able to send them in ten-ton lots. Ho then adds—"l trust this delay in delivery will not inconvenience you. Should it do so you have a rieht t* cancel the bargain if you desire to do so Len me know at once what I am to. do in tho matter.” To this letter the defendants replied that they preferred taking delivery in Wellington, and requesting the plaintiff to send the 70 tons, for which he accepted their order at once. A few days later, on the 10th September, tho plaintiff informed the defendants that upon opening the pits he found the quantity would not bo nearly so great as he expected, a great many having gone bad ; that he hoped to send to Foxton the next day about 23 to 30 tons, but would not guarantee to deliver more; but that if he succeeded in getting more he would try and complete what he thought he had, viz.. 50 tons. On the 23rd September the plaintiff wrote the defendants that by the first steamer (the Tui). leaving Foxton for Wellington on the following day, fhey would receive 27 toss of potatoes as weighed by railway authorities at Foxton. and upon which he i*ad paid freight to Foxton. He then requests defendants to pay freight , from Foxton to Wellington at the rate of 10s. per ton of 12 bags, as per arrangement with the asrent there, and* concludes his letter by saying—" I have not been able to get any more at present, neither do I think X shall, the district being cleared out." Unfortunately the 27 tons were in error consigned to Messrs. Plimmer, Reeves, and Co., instead of the defendants. On the arrival of the Tui the defendants, finding no potatoes for them, telegraphed to plaintiff, "Tui arrived; no potatoes, except some consigned to Plimmer, Beeves," and in tho meantime . the potatoes, which were intended for the defendants, were carted to the warehouse of Plimmer, Beeves, and Co. Several telegrams passed between the parties, and in a very few hours it was discovered that the railway authorities had shipped defendants potatoes to Messrs. Plimmer, Beeves, and Co. amongst some other potatoes consigned to that firm by a different consignor. On the discovery of tho error the defendants wrote on the Ist October to th ■ plaintiff,, that expenses amounting to about 10s a ton had been incurred in doub’o cartage, wharfage, ' and other charges, and that they could not take up the shipment unless that allowance were made, and on the 3rd of the same month tho plaintiff replied that he had telegraphed, that no time might be lost on his part, agreeing to their terms, at the same time ■ complaining of the defendants, negligence in not having wired to him immediately on arrival of Tut, which would have prevented sucli a loss fading upon him. On the stb October the defendants, after acknowledging the receipt of plaintiff's letter of the 3rd and referring to their previous communication of the Ist October, intimated that tho extra charges through the error in the consignment amounted to 8s per ton, particularising the items, and, that as a recompense for their extra trouble and for the delay through their , pon-deiivery at first, they would expect an allowance ijßl'lOs per ton. and that upon that undent nding they would not mind taking the potatoes over although they had lost tho sale through a mistake not caused by themselves. In tho meantime a further shipment of 10 tons of potatoes was made, which is not included in tho-present enqnlry. It may be incidentally mentioned that one o! the defendants in Palmerston, after the arrangements bad been made for the allowance of 10s per ton saw tbepJaintiff ami said that the mistake was unfortunate, tlvt they would lose their profit, but would not sustain a loss after the reduction made. ■ The reductions made were: cartage off the wharf, Is ; receiving and delivering, 3s ; storage. Is; cartage on. Is, and wharfage 2s. I am of opinion tlu»t when thesn terms were agreed to the potatoes were entirely at the risk of , tho defendants, and that the only defence they could set up would be that tho potatoes were not in good marketable order and condition at the time they were bagged. I am farther of opinion that they have waived theirright to claim a specific performance of tho assigned contract for tho delivery of the quantity orig'nally agreed upon, and that the proper time for disputing the weight was the time when they should have taken delivery. The only point remaining to be decided Is the condition of the potatoes at tho time they were bagged, and I feel that I cannot do otherwise than be guided by the evidence of tho plaintiff and Mr, Sly, tho extensive potatogrower from whom the potatoes were purchased ; but r before expressing my opinion will refer to a remark In plaintiff's letter of the 19th September, which, if unexplained, would seem to justify the defendants in defending this action on the ground of tho quality of the potatoes. The plaintiff in that letter remarks' that he finds upon opening the pits tho quantity will not bo nearly so groat as ho expected; agreit many have gone bad. In giving his evidence the plaintiff said that this was altogether a misunderstanding, that he did notsco tho pits opened, and that from a letter ho had received from Mr. Sly, in which ho said tho quantity tvas not so great os he expected, ho thought ho meant that they were ba<l. Mr. Sly, who described himself as a potatogrower on a large scale, said that these potatoes wore exceptionally good; that they turned out first-rato; - that the crop was taken out in March and April in first-class order, and put in heaps and thatched, which he described as a preferable mode of pitting; that ho picked them all from tho heap which ho opened on marketable potatoes; and that ho personally superintended the bagging of tho whole of then*. Ho also stated in evidence that tho term made use of in plaintiffs letter, that on opening tho pits some had pono bad, could not apply to his pit, as after the picked potatoes wore sold to the plaintiff the refuse, including the small ones, wore sold at the same prico. Mr. Sly further expressed his opinion that fermentation .would go on with potatoes In bags it a current of air did not get to them; that a month in bags in a confined place would bo long enough to ruin them, and that they ought not to havo been allowed to retrain so long without being i *hot out and picked over. lam of opinion, afterduly considering the evidence adduced on behalf of tho defendants, and without wishing to discredit it, that the potatoes became bad through Improper storage after tho date on which tho defendants should have ■ taken delivery, and through the neglect of the defendants in not taking proper precautions for their pro- . serration. I therefore give judgment for the plaintiffs for the amount claimed; £OS 17s..fid., and costs. MACDONALD AND CO. V. MACDONALD. This Is a claim for remuneration for services rendered offering property for sale at Karori, sold by tho defendant to Mr. Mitchell for £7BO before withdrawIng the same from sale at tho rate of 2£ per cent. If through tho Instrumentality of tho plaintiffs tho do- ■ fondant concluded a sale with a purchaser, tho withdrawal of. tho property from sale would not deprive the plaintiffs of their right to suo for remuneration for services,, rendered, and tho measure of damages would bo tho entire amount of tho commission agreed' : upon: but it must bo proved that tho plaintiffs not 1 only bestowed labor to find, but wore actually instrn.mental in finding a purchaser, and that the purchase was not completed through their agency in consequence of gome act of the defendant. It may. bo laid down as a general rule that where tho relation of

buyer ami seller is brought about by tho act of tho agent, ho is entitled to full commission, although the actual sale has not been effected by him. There is nothing m the case before me to show that the sale was concluded through any instrumentality of tho plaintiffs. If tho plaintiffs had sued upon a quantum meruit they would have been entitled to something for their trouble. Though this action w nominally for remuneration for services rendered, the amount claimed is tho full commission to which the plaintiffs would have been entitled had they effected tho sale to the purchaser; and as determining.what might otherwise have been doubtful, the plaintiffs admit that they are suing for commission, and not for expenses incurred in advertising, &c. lam of opinion that the plaintiffs, having made their claim for i commission, have failed to prove that they are entitled to it, and must therefore bo nonsuited, with costs.