DISTRICT COURT.

South Canterbury Times, Issue 2753, 19 January 1882, Page 2

DISTRICT COURT.

(Before His Honor Judge Ward.) MCDONALD V. JONAS.

The following is. the^judgment deliverd by' His Honor Judge Ward in tin's case yesterday, in which Mr White, for defendant, had applied for a nonsuit r

The facts of this case, oh jthe present evidence, appear to be as follows In January, 1881, ;Mr VVigley,called on MrJonas and gave Ljm verbal instructions for the sale of certain sheep. These instructions were taken down in part by Mr Turnbull, a clerk in Mr Jonas’ office, and the name “Mr Wigley’’ written below, but by whom written it does not clearly appear, Mr Jonas believes, but is not certain, that it was written by Mr Turnbull ; a comparison of handwriting makes it clear that it ; was not written by Mr Wigley, who is not shown to have known that his instructions were taken down at all. The written instructions only referred to sale by auction, but Mr Jonas states that he was also authorised to sell privately. His manager, Moore, sold to plaintiff, and in the presence of the latter wrote across the instructions, “Sold Mr J. McDonald, January 26, 1881,” and read it to him. By the terms of sale plaintiff.should have-applied; for delivery of the sheep, and have tendered the cash for them within fourteen days from January 24, but Jonas having received a letter from Wigley withdrawing the sheep from sale, informed plainriff of it, saying, “it wasn’t fair, and that plaintiff had a right to the sheep.” Jonas also wrote reminding plaintiff of the expiry of the time during which delivery , of the sheep should be deminded. Plaintiff went up to Wigley’s a day after the time expired, but tendered no money, and delivery of the sheep was refused, though a cheque,was offered. On this plaintiff brought an action against Wigley for honfulfilraent of contract, but lost it on the ground that there was no sufficient note of memorandum in writing,, signed by Wigley, to satisfy the statute of frauds. Plaintiff now brought an action against Jonas on two grounds ;—First, that he* mistakenly, pretended to be authorised as agent to sell these sheep, and secondly, that ho entered into and made the contract so negligently that plaintiff was unable to enforce it. With respect to the first cause of action the plaintiff must certainly fail, inasmuch as on the present evidence I hold it appears that Jonas had authority to sell ; and with respect to the second, it must also fail, inasmuch as it was no part of Jonas’ duty, as Wigley’s agent, to draw up the contract of sale on behalf of the vendor. Sundry cases were cited by the learned counsel for tlie plaintiff,viz,, Johnson v. Dodson, 2. M. and W. 663 Schneider v. Morris, 2. M. and S. 286 ; Saunderson v. Jackson, 2. B. and P., to show that the insertion of a vendor’s name jn print in a memorandum'of sale of bill banded to the vendee was sufficient to satisfy the statute of frauds, and he contended that, forasmuch as the words “ Moss Jonas” appeared in print in the instructions above cited, defendant must necessarily be liable, In all the cases referred to, the printed name was that of the vendor himself attached to a bill of document handed by him to the vendee, jit would, I think, be going beyond the authorities to hold that the printed name of an agent appearing in mere instructions for sale; unsigned by the vendor, was a sufficient signature'by the agent to take a sale out of the operation of the statute. -Moreover,if I did so hold it would show that Wigley, the principal, was liable, and not Jonas the agent, and would be an additional reason for the nonsuit which I now grant with costs. .