COURT OF APPEAL.

New Zealand Times, Volume XXXIV, Issue 5811, 13 November 1879, Page 3

COURT OF APPEAL.

Wednesday, November 12. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Richmond, Mr. Justice Gillies, and Mr. Justice Williams.) CLEAVE (APPELLANT) AND KING- (RESPONDENT). Mr. Macassey and Mr. Fitz Gerald appeared as before for the appellant ; and Mr. F. J. Garrick for the respondent. Dir. Garrick submitted that the decision of Mr. Justice Johnston was right, ami ought to be affirmed. The plaintiff by his declaration alleged a contract for the sale by the defendant of a quantity of purple top yellow turnip seed ; and the breaches of contract relied upon were that white turnip seed had been supplied, and what was supplied was wholly valueless for any purpose—or, in other words, that there had been a total failure of consideration. It had been contended for the appellant that a nonsuit should not have been granted as the declaration had been proved ; and that the respondent’s true remedy was a motion in arrest of judgment. But assuming for the present that a contract had been established, prior to the sending of the invoice of 10th November and the memorandum of the 12th, that contract was one for the sale of seed according to sample, which was not the contract relied upon in the declaration. Mr. Justice Gillies ; If there is a sale by sample, and a description in terms of the thing sold, must not the article correspond with the description ? Mr. Garrick : That may be, but the point is whether there being a sale by sample the declaration was proved. The Chief Justice : That was not your nonsuit point. Do you contend that if a new nonsuit point arises at the argument you can invoke its aid, if the point taken at the trial turns out eventually to be untenable 1 Mr. Garrick : Certainly.

Mr. Justice Williams : Yes ; I think it has been so decided. You can support the ruling of the Judge at nisi prius by showing that there was no evidence which he ought to have left to the jury. It does not matter what the particular point of law taken at the trial was. Mr. Justice Johnston ; It may be convenient to state how the thing occurred to me. My impression was that the declaration had not been proved at the trial, and the finding of the jury confirmed me in so thinking. Then came the question, .canid the declaration be amended ; and I came to the conclusion that no amendment which was warranted by the finding of the jury could not help the plaintiff. Hence the nonsuit. Mr. Garrick contended that if the evidence for the plaintiff established a contract at all, it was a sale by sample, and therefore the nonsuit was right. Mr. Macassey pointed out that the first suggestion of a sale by sample was in the evidence of one of the defendants. Mr. Justice Williams : Can the defendant invoke his own evidence in support of a nonsuit when it differs from the plaintiff’s ?

Mr. Garrick submitted that the whole of the evidence taken at the trial was now before the Court ; and even in the evidence of the plaintiff there was proof that a sample of the seed had been sent to him.

The Chief Justice : Supposing it was as you say a sale by sample, why should the declaration have been different 1 But I don’t know that because a sample was sent, that therefore it is to be said the sale was made by sample. Dir. Justice Gillies : No.

Mr. Garrick urged that if there was no sale by sample then there was no contract at all before the invoice and memorandum were sent on the 12th November. The terms of the plaintiff’s telegram of the sth November left the defendant a locus penitential. It merely said send the seed with the other. That was not sufficient to make a binding contract. The defendant had a right to say I have changed my mind, if he pleased ; and when he shipped the goods, and sent the memorandum of the 12th November, a plain intimation was given to the defendant that the seed had not been forwarded in pursuance of the original contract.

Mr. Justice Richmond : If that was the defendant’s meaning it is very shyly put in the memorandum. If he intended to resile from the contract one would have expected him to say so in plain terms. He talks about an agricultural show, about a matter of 10s., and then this thing comes in at the very end. Mr. Garrick did not know that it would have been of any more importance if it had come in at the beginning. Air. Justice Richmond ; If it was a lady’s letter perhaps you would look for it at the end, but this is a letter between one dealer and another. Can you say that there was any evidence of a substituted contract ? It seems to mo to be the very point of the case. Mr. Garrick could only repeat the contention which he had urged in the Court below, and if he failed to establish that there bad been a new or substituted contract, then cadit fpitsih. The jury had found, no doubt under

the direction of the learned Judge, tnat by accepting delivery under the warning contained in the memorandum, tho plaintiff hud allowed the contract to he modified. The Chief Justice : You say, assuming that the original contract was c -mpWle, there was a parol abandonment of it Indore breach, and a new contract substituted, evidenced by delivery and ucc ,*ptanoe of toe . ee b Mr. Garrick; Yes. Or in other woi ■. qin place of a contract to supply a quantity of purple-top yellow turnip ••■ee.’, Dm ■!<;'.cudant only undertook to deliver what bad been sold to him as purple-top ; whether green or yellow he 'lid not know. Mr. Justice Richmond : If that is so, tbs nonsuit would be right from my brother Johnston s view. You could say to tne plaantiff, “You h ,vc got all that you were entitled to get-” Mr. Justice Johnston : That was tho view L took of it in tho Court below. Mr, Garrick commented upon the case of Hart V. Miles (15 M. and W.) as being an authority in his favor. There there had been a side of two dozen of port and sherry. Four dozen of each had been delivered, but only a bottle of port, aud a dozen of sherry retained ; and it was held that the purchaser was liable on a new contract arising out of the acceptance of the wine kept. So here, assuming tint the seed supplied was not in accordance with the original contract, a liability on the part of the plaintiff arose out of the acceptance of tine seed with the warning that it was not what it ought to have been. To that extent there was evidence warranting the finding of the jury that the original contract had been modified.

Mr. Justice Williams ; How can you say that tho original contract was discharged before breach when the seed was put on board the Albion in accordance with the telegram of the 7th November ? Mr. Garrick : If the seed was not what was ordered, tho property would not pass. If Cleave had ordered a cow, and King had shipped a pig, surely that would not have been a fulfilment of tho contract. Mr. Justice Williams : Then if you assume that the seed put on board the Albion was not in accordance with the contract, was that not that a breach ? And it a breach, how can you say that the contract was discharged before breach, and a new agreement substituted in its stead ?

Mr. Garrick could only repeat what he had urged in the Court below, and unless a new or substituted agreement was established as he contended the judgment could not be supported. Mr. Justice Johnston called the learned counsel’s attention to the case of Parkinson v. Lee (East’s Reports). Mr. Garrick continued his argument, citing Carter v. Crick, 28 L. G. (Excb.), N. S.. and commented upon Jones v. Just, Law Rep. (3 Q. B.), saying that there was really n difference between his learned friend and himself as to what the law was. He admitted that whore a tradesman sold an article by description the law implied that it must be commercially saleable according to tbat description. He then addressed the Court on the question of damages, submitting that there had not been an entire failure of consideration, inasmuch as the crop produced was worth something even for sheep feed. The Chief Justice observed that he did not see the value of the distinction. If the seed delivered was not what was contracted for, why should not the plaintiff recover as damages compensation tor tho injury sustained ? Mr. Garrick having concluded his argument,

Mr. Macassey was heard in reply, citing two additional cases, and addressing the Court mainly upon the question of damages. He submitted that the judgment of the Court below should be reversed, and the rule nisi for a nonsuit be discharged with costs. Next, that the rule nisi to increase the verdict for £l5O should be increased by the further sum of £1370 11s. 10d., with costs, and that the pla'ntiff should have his costs of the appeal. The Court intimated that it would take time to consider its judgment. GEESE V. TAYLOR AND OTHERS. This was a special case, stated by consent and by order of his Honer Mr. Justice .Richmond. The original action was brought in the Supreme Court, Wellington, on November' 20, 1877, and was removed to the Appeal Court for argument of certain law points involved. The action was f..-r redemption of a mortgage made on November 22, 1860, by Andrew Green to Messrs. Thos. Ballardice Taylor, William Hogg, Watt, and Edward Lewis, and was laid at the suit of the plaintiff, John Ivo Gerse, against Ann Hutchinson Taylor, George Taylor, William Hogg Watt, and Edward Lewis, William Hair being subsequently made a defendant party to the action. Mr. George Hutchison appeared for plaintiff, and Mr. W. T. L. Travers for defendants. The facts of the case are somewhat peculiar, involving some difficult and important law points. It appears that on November 22, 1860, a man named Andrew Green, who owned some • 525 acres of land in the Rangitikel district, mortgaged the property to Thes. Ballardice Taylor, (since deceased), and William Hogg Watt and Edward Lewis, as security for the payment of £IOOO in five years, with interest at the rate of 12 J per cent, per annum. On January 24, 1863, Green died, as it was then supposed intestate, leaving a widow and several children, of whom James Green, who was born in March, 1344, was the eldest, and was the heir at law. On July 28, 1863, James Green, as heir at law, and the mortgagees, Messrs. T. B. Taylor, W. H. Watt, and Edward Lewis, executed a conveyance of the land included in the mortgage to the defendant William Hair. The consideration money was paid by William Hair to the mortgagees, out of which £1136 9s. 7d. was retained by them in satisfaction of the principal and interest owing up to that date under their mortgage, £IOO was paid to James Green in 1865, under authority from his mother, and the residue was applied under her directions in payment of the debts of the deceased. The conveyance was duly registered on December 12, 1863, in the office of the Registrar of Deeds, Wellington. The defendant, William Hair, has ever since the date of the conveyance occupied and used the land, and had no notice up to the registration of the conveyance of the existence of the will of Andrew Green, its existence only being made known to him some time afterwards. On September 11, 1863, Mary Ann Green, widow of Andrew Green, obtained from the Supreme Court letters of administration of the estate and effects of her lata husband. It was subsequently discovered that on July 10,1861, Andrew Green had made a will, by which he devised, inter alia, all his real estate to the plaintiff and one George Roberts, as trustees, upon trust to realise, and after payment of debts to pay one-sixth of the residue to his widow, and to invest the remainder in trust, to pay the proceeds to his widow for the maintenance of the children during their minorities, and upon farther trust to distribute the capital in equal shares among the children as they respectively came of age. The trustees were appointed executors of the will, and along with the widow were nominated guardians of the infant children. This will was proved by the plaintiff and his co-trustee and executor in the Supreme Court ou December 20, 1864, and the letters of administration which had previously been granted to the widow were at the same time cancelled. The will was not registered against the land comprised in the conveyance of July 28,1863, until January 11, 1877. In the year 1839 James Green left New Zealand for California without having taken any steps to dispute or avoid, aud without giving any notice of his intention to dispute or avoid the conveyance to Wm. Hair, and he continued to remain abroad until after the commencement of this action. During this time the plaintiff was aware that Wiliam Hair was in possession under the conveyance. In July, 1871, George Roberts, one of the trustee?, died, and the plaintiff has since continued to be sole trustee and executor. In the same month, Thomas B. Taylor also died, and the defendants, Ann Hutchinson Taylor and George Taylor are his executrix and executor respectively. On the 23rd July, 1877, a person acting for James Green under a power of attorney dated 16th June, 1377 (registered against the land in July, 1877), made an entry on the land in the name of James Green, and served upon Wm. Hair, who was still in possession, a written notice that, acting under the said power of attorney, he made the entry for the purpose of avoiding the deed of conveyance of July 28, 1863, and he also served upon Wm. Hair a written notice under the hand of James Green, as follows ;—“ To Dir. Wm. Hair, farmer, Marton, New Zealand.—Sir, —The conveyance dated July 28, 1363, of Block xxxviii., Rangitikei, having been signed by me while under age, I desire you to understand that the same is null and void in so far as I am concerned, and that itisavoided. — I am, sir, yours truly, James Green.” It was admitted that at the date of the conveyance of July 28,1863, James Green was an infant, being then only a little over nineteen years of age, but this fact was not brought to the notice of the defendants for several years afterwards. It was also admitted that the powers of sale under the mortgage had not been exercised. Upon the above state of facts the plaintiff, as devisee under the

will of Andrew Coven, claims to be entitled to redeem the prop.■;• i . mv-* and also claims an fcnoebv *■* .vn amount i* due under the s *.•/-. T(u. ■■pm-.tbni submitted for the opinion oi che Court wap—ls the plaintiff entitled upon the facts n'.ovs stated, and ff so upon what terms, t. ?•••!■.cm the land comprised in the mu: :/ ;/ ,■ oi .November 22 ISfiO ? If the Court be of opinion in the affirmative, then it was asked that a decree be made accordingly, in such form and upon such terms as the Court shall think fit ; but if the Court be of opinion in the negative, the action bs dismissed; in either case the costs of the special case, and all cost? hitherto incurred, to be iu the discretion of the Court. Mr. Hutchison argued the case at some length, and the Court adjourned at 4 p.m., the remaining arguments being reserve! till this morning. _____________