A SALE OF COWS.

Putaruru Press, Volume VII, Issue 273, 31 January 1929, Page 5

A SALE OF COWS.

CLAIM FOR DAMAGES. Alleged Misrepresentation. A claim for £IOO damages on account of alleged fraudulent representations in regard to dairy cattle sold was made in the Matamata S.M. Court on Friday, before Mr. S. L. -Paterson, S.M., by R. Shaw and Son, of Waharoa (Mr. Gillies), against Thomas Bottomley, of Tirau (Mr. G. <G. Bell). Mr. Gillies held that two of the -cows were two-teaters, and these were not contracted for. The herd had sheen made “ higgledy-piggledy ” by the inclusion of such animals. R.Shaw, principal of the plaintiffs, explained that he bought eighteen cows.from Bottomley, the cattle having been inspected on Peter’s farm. Bottomley had painted out the two two-teater cows, and these were not bought. All he bought were declared to be sound and early calvers. The witness then read out a list of ■dates of calving, running from Julfy. There were several in October. One cow, witness said, had been taken back. There would be £4 or £5 difference in value between a .sound cow and an unsound cow. Cross-examined by Mr. Bell, witness admitted that he bought the •cows from Bottomley to increase his herd, but afterwards sold some of of them. Mr. Nicholson had recommended him to inspect Bottomley’s cows. Mr. Bell: Mr. Bottomley told you he could not guarantee specific dates •of calving?—No. Mr. Bell: Did he not tell you that The bull had been running with the cows, and that all he could guarantee was that they were all in calf?—No. He guarantted them sound and early ■calvers.

Mr. Bell: A lot .might happen to cows in three months. They might be on poor feed, or go among a diseased herd ?—There is no disease on my farm. w* Mr. Bell:'When Bottomley came to your farm you pointed to one of ‘the cows not right, but did not ask foT compensation ?—That is so. Mr. Bell: And then you went out to the paddock to an unsound cow and Bottomley promised to take her back at £8 10s. The only complaint that you make in your letter of September 9 last is that two of the icows "were unsound, and you make no complaint of their not coming in early. Does that seem as though you had a guarantee of early calvers? Did not Bottomley tell you that if you were not satisfied he would take the whole herd back at £lO apiece?—No. Witness qualified the denial by admitting that Bottomley offered the £lO each, except that he wanted to allow a lower price for four or five. Witness wanted £l2 for three or four, and £lO apiece for the others. Mr. Bell submitted that defendant had agreed to sell the cows back to Bottomley, and had sold six of them i,ext day. Was that honourable dealing? His Worship: Do you think it was honourable ? Witness replied that his wife had sold the cows, he having been away at Harris’ the next day. Mr. Bell' rejoined that the wife and son were with plaintiff when the sale was made to Bottomley, but -witness denied that. Five or six of the cows were three-teaters, and two were two-teaters. J. C. E. Shaw, son of the previous witness, and joined with him as plaintiff, supported at all important points the evidence of the first witx.ess, relative to the cows being sound (except tv o mentioned) and due to calve early. Bottomley offered to take the ccws back , giving £l2 for two and £lO apiece for the rest -that had calved, but not for the twobeaters.

Cross-examined by Mr. Bell, witness emphatically denied that the sale of the stock to outsiders had ' been delayed until his father came home, and then confirmed over the telephone. When the purchase was being made in the first place Bottomley guaranteed by word of mouth that the cows were all early calvers —July-August. Of the Bottomley cows left on the barm witness could not tell how many were sound or how many were unsound. Mr. Bell: Mr. Bottomley would have no guarantee whatever that the unsound cows sold by plaintiff were those got from him. James Nicholson, farmer, Walton, said Bottomley had told him that th - cows were July-August calvers, afid bt was a genuine herd and guaranteed sound. Bottomley pointed out two two-teaters.

The cows had belonged to a returned soldier at Turua.

Mr. Bell: When you were on that farm at Turua, did not Bottomley simply say that they were all in calf, without guaranteeing dates?—He guaranteed July-August. Witness, to Mr. Bell, said he had always found Bottomley straight in his dealings. He admitted that when several of the cows had not calved early in September it'-would have been prudent then for Shaw to have asked Bottomley for compensation. A. Melrose, farmer’s son, Walton, declared that he heard defendant say the cows would calve in July or August. To Mr. Bell’s questions he declared that he did net remember any other part of the hour’s conversation.

In addressing the court, Mr. Bell pointed out that all the damages that might be suffered were the difference between the sound and the unsound values, according to the cows proved sound and unsound respectively. There was .no warranty in writing, though he agreed that if a verbal warranty were established that should be honoured. Bottomley guaranteed that the cows were in calf, and promptly offered compensation for one that proved not so, hut he did not say that they were warranted to come into profit in July or

August. Bottomley also said that, as far as he knew, the cows were all sound. It was curious that Melrose remembered that one statement only. Thomas Bottomley, farmer, of Tirau. defendant, said the cows were all of one herd, bar two. It was a genuine herd. He did not guarantee the cows to come in at any specific time. Why ? asked Mr. Bell. Because I couldn’t. You knew they were all in calf? — Yes. They were all sound? — Yes, bar two. Quite a lot of things might happen to a cow before cnjving to make it of unsound quarters?—Yes, and even after calving. It might be right that night and wrong in the morning, with unsound quarters Mr. Gillies: We are not talking of mammitis. Mr. Bell: They might go wrong through inattention prior to calving? —Yes. Witness said that he went to Shaw’s farm, with Mr. J. Goodwin, Dalgety and Co.’s agent, and witness agreed to take back a cow complained of, and gave plaintiff a cheque for her. Plaintiff seemed to be growling a lot, and said he was not suited with the cows. Witness promptly said he would take them back, but

plaintiff did not accept that. Next a letter came from Earl, Kent and Massey, making a claim and stating that more cows had come in unsound. Witness made another visit to the farm, and arranged with Mrs. Shaw to buy some cattle and confirmed it by telephone that night. Mr. Gillies: You handle a fair number of cattle in the year?—About two thousand. Mr. Gillies: That disposes of your counsel’s contention that ycu are not a dealer. Is it not a fact that the cows you sold Shaw were a cull lot ? —No, they were not. James Goodwin, Dalgety’s stock agent at Matamata, said he was with defendant on the occasion of the visit to Shaw’s farm. They saw one unsound cow, but Shaw did not ask for compensation. Another that had not calved Bottomley offered to take '—~v, and also any others that failed. V— dairy purposes an unsound cow was worth only about half of what a sound one was, though for beef she might be full value. His Worship intimated (Iv'V he would take time ».to arrive at his decision.