A HAY SALE.

Pukekohe & Waiuku Times, Volume 3, Issue 173, 24 February 1914, Page 3

A HAY SALE.

Glasgow, v. Henry. In March last R. Glasgow, farmer (Mr A. E. Skelton) sued P. Henry ar.d Son (Mr J. G. Haddow) for the sum of £6 10s 6d, balance due on a bale of hay t"> defendant. The plaintifF claimed that he had sold 182 bales of hay to defendant, whilst the defendant averred that It had not been a straight-out sale, but that he had acted only as agent fur the plaintifF. The claim was for the difference between the amount paid to plaintiff and what he contended should rave been paiJ him as the proceed) of a straight-out sale. On that occasion the plaintiff elected to take a non-suit.

The case was Again heard cn August 7th when at the conclusion of the hearing of evidence the case was adjourned to Auckland for legzl argument.

On Thursday Mr Frazer, S.M., gave judgment as follows: This case was heard at Pukekohe on 13th August last, and after the evidence had been taken judgment was reserved, pending argument on certain law points arising out of the facts. Argument was heard at Auckland on 31st January last. So far as the facts are concerned, there an only two questions to be decided: First, whether the defendant was a purchaser or merely an agent tor sale, and, second, whether the draw was of a merchantable quality or not on arrival at Pukekohe. I am satisfied that the weight of evidence on the quesMon is in favour of the plaintiff, that is, that the waa a purchaser of the straw.

On the eeor.d question, it is equally clear that the evidence adduced by iha defendant is conclusive that the straw was not of merchantabla quality (except es damaged eoods) when it reached Pukekohe. Whether it was "wet, black and sandy" when shipped, cr became so in transit, matters not, as the plaintiff was bound to deliver it in merchantable condition at Pukekohe. The defendant delegated his right of inspection to his Auckland agent, and es a rcsilt of the cxanira'ion made by the ] ittcr the plaintiff was informed that th« straw had been condemned as wet, bla k and sandy, and had been sent to Auckland's on his account. As a matter of fact, it appears to have been fent there for tale on defendant's account, and the subsequent dialings are in my opinioi proof of a qualifircl acceptance rather than of a rejection. The or ly substantial questions of law involved are: (a) Was the plaintiff's Btat r iTnnt that the straw was sound, a d that the only iMcct was that it contained thistles, a warranty of merchantable quality under section 16b of "The Salo of Goods Act, 1908?"; and (b) cm the defendant act. up a breach of such warranty without filing a counterclaim? Mr Skelton argued in reference to the first point th'.t the case came wi'.hin the decision in Knight v. Mason (15 G.L.R. 300). "hat case, however, was decided undfr section 16a of "The Sale of Goods Act, J9oß,'' while the present case obviously comes under section 16b. The implied warranty given under the latttr sub-section pre-suppo9is a much lower degree of skill on the part of a vendor than the warranty of fitness given under sub-section a. In my opinion, the judgment in Knight v. Mason is not applicable to the present case. As regards the second point, the Magistrate's Court is i tended to afford a simple procedure for the settlement of actions and for avoiding a multiplicity of suits. All the racts are before me, and even if the strict rules of law reauired the filing of a counter-claim n such a case ai the present, 1 should treat it as a mere matter of procedure and should deal with it under the equity and good conscience clause. However, it is not necessary for me to invoke that clause, for, acc rdirg to Mayne on damagep, sth edition, page 110, it ib permissible for the court on the hearing of a claim for a specified Eum to admit evidence to show the real value of the goods, though no counter-claim is filed. Of course this rule does rot extend to claima to set off subsequent d'.msges atirin? from a brea?h of warranty, but that position docs not ari»e here. At the former hearing of this action, when the plaintiff elected to accept a non-suit, 1 indicated that the plaintiff appeared ta be entitled to certain allowances amounting to £1 Is, but could rot recover any larger sum. 1 see no reason to alter that view, and the defendant has paid £1 Is into Court, with 3s costs of issue of the summons.

JutfgmeDt is therefore fur the plaintiff for the amount paid in, and the defendant will have judgment in his favour for his subsequent costs.