OTAGO SUPREME COURT.-CIVIL SESSION.

Southland Times, Issue 919, 20 March 1868, Page 3

OTAGO SUPREME COURT.-CIVIL SESSION.

, ■ (From the " Daily Times," March 17.) MOJJDAY, ftTABOH 16th. (Before His Honor Mr Justice Chapman.) The Court sat at ten o'clock ; and the trial of Special Jury Causes was proceeded with. ■ QUESTIONS AS TO THE DEiIVEBY OP A STATION AND SHEEP. , Webseee v. Maclean.— ]VEr James Smith appeared for the plaintiff, George \\ "Webster ; , and Mr George Cook was for the defendant, Hugh; Maclean, •j The plaintiff claimed £2000, for the short delivery of land and of sheep, on the purchase of Bun No. 148, Southland, known as ; the.. Benmore Station. . : The plaintiff's case was, that on the 21st . February, 1867, Messrs Powers Pantlin and Co., sold, on behalf of Hugh Maclean, at their rooms in iDunedin, Bun 'No. 148, as delineated on the Southland Government map, and which the Conditions of Sale described as comprising 56,000 acres, or thereabouts, of pastoral land, and about 12,000 acres of bush land, heid under a license terminating in 1872, but as to which the vendor had agreed for an extension of the term by ten years,'* as to the pastoral land only, at an annual (rating) rental of about £400. ! Of the pastoral land, about 20,000 acres were stated to be, under lease to Mr Taylor, at £200~a year, and Id per head. There was a preemptive right over labout ' 250 acres> and about 80 acres of freehhld land, on which was a house ; a woolshed and other improvements being included with the thingß sold. The Conditions of Sale also' included as to be delivered — _ 6005 ewes, 4019 wethers, 3608 lambs, and 4ol rams; total, 14,033. Deliverywas to be given within 14 days^ of the sale ; and there were provisions as to the rates at which an excess or a deficiency of she^epwas to be aUowe^d for^', .^;, George Webster, the plaintiff sJi am a ■'"■■ sheep farmer in ; Southland. I purchased at auction the run in itjuestiori; under -the ; conditions of sale : shown ineV I saw the ' plaii now before" me,' at the^offices of Power, Pantlin ; and the auctioneers, at the time they'sblS^Herun." The advertisement which attracted myvatteritiori ' Bt^ted the acreage^. of titp pastoral land at .—.6o,ooo^prthereabpute-ibut I saw, at, the „•: auctioneers' rooms^ a description stating the acreage at 56,000. I gave Ll7,000:

the money being payable to the agents, Dalgety, Eattray and Co. The sale was on the 21st February, 1367. I gave a cheque for L 500 0; an acceptance at three months, for L5119 18s 7d ; one due 24th August, 1867, L 3676 10s ; and one due 24th February, 1868, L 3852 17s 6d. The- Lll 9 18 7d on the first acceptance, was for interest ; the original terms having been LIO,OOO cash, and the balance at six and 12 months ; the interest on the LSOOO being accepted by the agents as equal to cash, so as to enable me to get funds from Victoria. There was interest on all the acceptances, and I have paid them all. I went to take delivery, and met the defendant. 1 did not take' any men with me, because I had understood that the men there were willing to : engage with me ; and I did engage them. On the day after my arrival, Mr Blythe joined me. I arrived on the evening of, the 6th March. On the morning of the 7th, the defendant told me he had about 7000 sheep in the yards already j mustered. These he was desirous of counting out and delivering to me at once. I objected to beginning to receive, until, i ail had been mustered ; but even- i tually I consented to have the" sheep in the yards counted and bottlemarten, the sheep being counted out after they had been so marked in a small pen, where they were put in lots of about 100. We noticed that several got out without being bottle marked. . Those, sheep were let out on a piece of country fenced' by a creek, where the defendant said they would be safe — aad where I believe; they would be safe if properly attended— a man being appointed to look after them i: not exactly to tail them, but to keep a small boundary. After this, the defendant and his men went out mustering for about a week — and' one. night they camped out, bringing in next morning all -the sheep that. could be found. The count was agreed to be — "Wethers .and lambs, 7511 or 7514 , ewes, 5667 ; rams, 408. I give these figures from my rough notes, on which I made out my receipt. There were no conveniences on the station for mouthing the sheep, and the country where the sheep were mustered was a very dangerous one for dealing with sheep, so that it was agreed, instead of mouthing, to divide the sexes. Hence the classification I have given. The total shown was 13,586 ; Jor a deficiency of 447. In the rain paddock, on taking final delivery, the defendant said that he was between 300 and 400 short. I was interested in the tutu question, which is our great terror down there , and it was stated that 120 had been sold, and about 50 killed. Mr Blythe and myself laughed, saying that so small a loss between shearing and the muster as was thus shown, was the most favorable circumstance we had heard of as to the run. When sheep are newly turned out, after shearing, on a country with tutu on it, is the time of greatest danger to them ; as some must, while kept in, be short of food. The defendant told us, before we took delivery, that he did not mean to go out again mustering*. The run is of country which is rather rougher than' the majority of < 'tago country. There is a great deal of flax on it, much high tussocky grass, and plenty of tutu. There was a dispute. between us as to 65 sheep— whether they were included in the first 7000, and had escaped bottle-brand-ing, or whether they were other sheep which had not been brought . into the yards amongst the 7000.:. I offered, without prejudice, to "go halves ;" as the defendant would not consent to that; I said that I must refer the question to the arbitrators. The 447 short, included 116. ewes. I conclude that a fair value for the ewes would be an average of l 17s; wethers and lambs, about 14s. There were seven rams more than the scheduled number — or I gave a receipt for , seven — and the defendant would be entitled to an allowance of £2 10s each. Before going to take delivery, I went to the Q-overn-ment Survey : Oifiee, Southland; and, in consequence of what I there learned, I complained to the defendant 'thai; there was 4,400 acres short of the . acreage in the - conditions .of .sale. I said that I had been compelled to pay. money on the deficiency in Dunedin, before I could ascertain the real extent of the acreage. I web anxious to arbitrate ; but two . attempts fell through. I told the defendant that the deficiency was exactly what had been sold by the; Southland* G-overnment, and for which he had been compensated, . so that he could not but know of ;t. He said that'.tne,mis'deiscription was not nis fault, but t)b at of Dalgety, Eattray and. Co., who had neglected; or exceeded— l; am not sure which-— the instructions given. The/ 4400 /acres; is, a; level plain between the house and the country. It is, I should say, ; of a fair, average value of the rim. I think the value of the run as a whole was between 2s and 3s an acre; but' nearly half was under lease, of which two years wefe'to run^.and I think that a ; fair value of what 1 got immediate possession of would be 4s an acre; Apart from consideration of the lease, 3s 6d to 4s might be' taken as a fair price per acre for the 4400 lacres. The outside value of the house, and all other improvements, is, according to my calculation, between LSOO and L6OO. Immediately before this action was commenced, I saw the defendant inlnvercargill, and asked him to try to come to a fair and reasonable settlement, instead of forcing an action ; which would possibly cost~each~of us more than the amount in dispute. He said that he was willing, any day, to settle for the sheep; but that he would say nothing as to the landj for that was altogether the fault of Dalgety, Rattray and Co. [We were speaking lightly, and I said that I would give him, L2O if he would show me how I could go against Dalgety, Battrajr and Co ; that I should be most happy to substitute them for ; him ; but that I was told I could "nipt go against them, as only he appeared in connection with the matter. . :By Mr Cook : The bush land was not sold: it is included'in the description of what the run was. as on. the Q-overnment ; map ; put , it, has been, excluded by, agreement with the Government. l

defendant paid rates only on the pastora country ; and the rateable land only wat what was really sold, under the conditions of sale. The conditions compelled me to pay money, and give security for the remainder, immediately after the sale. ] put the money and securities into the handa of "Dalgety, Eattray, and Co., as trustees for the purchaser as well as ' the vendor. It's just what I should like to know, why an allowance was not made for the deficient sheep : the arrangement was rather one-sided, as it turns out. Distinctly, I say that, at the time of delivery, the defendant did not propose to go over the run again during the month mentioned in the 13th condition of sale, so as to see what sheep he could get in. He did, immediately after returning to town, write to me to be good enough to inform him when I mustered, so that he might be present, and claim any sheep not;, marked with the bottle-brand. I declined, for I did uot recognise hisright to any sheep after he had scoured the run clean, and~ given me delivery. • We did not muster until shearing time, which was eight months af ? ter ; delivery. Then, making full allowance for the sheep killed, and for a full average of deaths, we found, after shearing, a deficiency of nearly 10 per cent, (or near 1000 sheep) as compared with what there should have been, according to our delivery count; If we had found 400 or 500 sheep in excess of count, I should have been most happy to have allowed for them, and so r forgone my claim for sheep. I should say that, taking the brick house and the improvements as a whole, including half value of three miles of division /ience,: the value would be £500 or £600 at the outside, I include the improvements ice my estimate cf the acreage value of the run, ) Re-examined : If, : before I took delivery, the defendant had made to vac the request which he made after he returned to town, I should have declined to take delivery, r refused, and refuse, to recognise the bottle marking as a branding for any such purpose as to enable him to claim sheep. It was simply a marking of sheep that we had seen in the' count out. It .was no permanent brand ; . and, under his request, the defendant might, .when we mustered for shearing, have as his, Tialf the number ef sheep oi'v the station.' ■ •' . John R. Blythe, and R. Taylor, , were examined in support of the plaintiff as to what took place at the time of delivery. Blythe added that neither at the time, nor within a month of the sale, did • the defendant make any claim as to' going over the station again to look for sheep. John H. Baker, Chief Surveyor, and a member ot the Waste Land Board, Southland: I produce a tracing from a map belonging to the Government of Southland. I have compared the tracing with the map. The tracing correctly shows the boundaries, &c, of Run, 148. On the 21st February, 1867," the acreage of the pastoral portion of that run would appear on'ourbooks as it was on the Ist May, 1866, namely, 56,185 acres. In'the meantime, an- -application was made to purchase 4290 a. 0. 28p. ; but on survey, the applied-for land proved to be 4370 a. lr. 3 p. which quantity was sold., The owner was entitled to compensation for that land ; but, not being the Treasurer of Southland, I cannot say that compensation was paid. Since then, more land has been sold." By Mr Cook : There has been a trigo-nometrical-survey of the whole district, i : by3£r M'Arthui'j and ; ■? topographical survey of part of it. For the purpose -of selling the land, the area qf Run. 148.was t 'dot ascertained with 3 sjifficient^ ateeuracy ; for Tall station purposes, the area had been la6curately ascertained.' ~ ~ Of course there may really be a small excess; or a small deficiency — 500 acres, possibly. ; ' ' J. A. M' Arthur, who made the survey agreed with Mr Baker, as to the ascertainment of the area." , ;Mr Cook briefly stated the case of the defendant — that what was sold was npt a specified acreage* 'but 'Benmore Station, as.it was ; and that it was the duty of the purchaser to satisfy himself as to what he was buying. „ ...... . „ ' ""Hugh'Maclean^ the defendant : : I re-member-Dalgety, Rattray & Co. putting up for sale, on my behalf,, Benmore Station, Southland. I instructed them to -sell the station— -I did not give them.any ; particulars. I Mr Smith objected. The contract waa Emitted.; „: ; ; ..: , ;: „.■•,.. ;:■:. ■„;/ : Examination continued: I instructed them to sell 60,000 acres or thereabouts,. After the advertisement had appeared,! the plaintiff came down, I showed him over the station, and I pointed . out to him' where about' 3000 acres had been sold., ! I do. not remember anything, passing L aa to the total acreage of the run. We had the bulk, of the sheep about the yards two days before the plaintiff arrived to' take' delivery. He wanted to! wait until Mr Blythe came, but I said that" would not be fair, as we had the sheen waiting. I will : swear that,' during the delivery, not half a score of, tlhe sheep escaped being bottle-branded. The plaintiff blight to have brought enough men to have taken delivery of the sheep. I made it that we delivered .131,651 sheep, or 65 more than the' plaintiff. We had a dispute as to the "65. The plaintiff ought to haye^ kept the sheep properly. ; I wanted to bottle-brand the., 65; but he would not consent, and I raddle-marked them. They were counted in my 13,561, but! they were not bottle-branded, they were mixed sheep. We finished shearing on the 6th February, and then there: were 14,229 ;'• and I believe that hear 100 rough sheep that Were ndt.mustere'd at'sh'earing, were included in the count at ; delivery. I had, during the interval, sold about 100, ! and killed 70; and thetfe would-be' about 100 s ldst, •MdfedLV : .;^!'.tW;ißlAiß)B' of the delivery, we, compared, tallies, aiid there was ;an agreement, except as. to, the 65. I refused to take the receipt, and it la^ on the mantle-piece for : two days. • The dispute was npt only as 'to the 65,' ; but I .claimed that there were about 400 sheep on the station that had not been, mustered, and the plaintiff said that he claimed all

1 sheep on the place after the deliverjr.^ I j had not received a copy of the Conditions 3 of Sale from Dalgety, Eattrayfand Co. I j did not say that I would not take more j trouble in mustering. T went, within the. " month after the sale, and saw Mr Blythe s — the plaintiff was not there. I told i Blythe that I wanted to see after any of ; those sheep that I supposed to be -there, , and to be mine; and he said that he wpuld i not let me meddle with the sheep 'any more. There was afterwards correspond-, ence as to arbitration ; and I applied in ' September to be allowed to see the sheep, but the plaintiff refused. The bottlebrand was of pitch and tar, and would ! have been as visible as the station brand. I think that, at the time of the sale,: 13s was a fair price for an average lot of sheep. I should scythe run was worth Is 6d to 2s an acre ; none of it was worth more than 2s. . , ; .. ;: ,- I By Mr Smith: I say that the plaintiff ought to have had his own men to take charge of .his sheep, as they ; became so on being bottle-branded ; I consider thelconditions to have required that he should be there to take delivery from day to day. . II! say that not more than half a score of sheep escaped being bottle-branded ; there were too many men. about the yards j'aiid I believe that not half a score reallyj got away., : : : . ... - }f ... , ........ ... ... , ; ' John TurnWll Thomson, Chief Surveyor, Otago : I know the locality of LRun.. 148, as shown on the map handed to. me. I consider the map to be but a sketch-map ; and in sketching, a very competent jman might be very/ considerably out in area. If I first made' a trigonometrical surviey- of 56,000 acres, and then a chain or actual survey, , l. might be acres put in 'theformer, or 2000 acre's. It depends greatly on the eye of the surveyor. I would'riot take as evidence anything but a map from actual survey. ; ; -•' '■• ; By v Mr Smith.: I made ajreQonnaisance survey of4his iract ?of Jcounltry about ,ls yeara ago. ■ George Hately, surveyor, formerly in the : ; employment of : , : the , Qtago. | G-o---'vernmen t: I have been over the country shown in this map. The difference; between this map, and a map from a proper survey, might be great or but little^ It .would depend, on. the traverse , of the creeks, and- the* different positions in lines which are not straight, or the tops of hills through which boundaries run- I should not He much surprised in a difference of 5000 or 6000 acres, between theresults of the two modes, .in; dealing with a tract of 56,000 far* 60,000 acres. The irregularity of bush, and of bends of the New. Eiver, would greatly affect the result of a trigonometrical survey. "William H. Calder, merchant, Invercdrgill: I am pretty ; well acquainted with the Benmore station. As representing the second mortgagee, I had occasion, at the time of the sale, to take : a pretty close estimate of the improvements on the station.^ Excluding the wire-fencing on the boundaries, and the pre-emptive right, I think LI2OO to be a fair or low estimate of their value. ' x My e&titniate of the value of the sheep, as upon the run, was 14s a head, all round ; and I calculated the land at 2s an ! acre without improvements, or at 3s with improvements. I made a considerable allowance for the leased land," and an allowance for the land sold. i • Edward Scoular,,-, station*- mariager, Upper W aitaki, who was on Jiun 148 at the time of the deHvery, and for about six months' previously, believed that not more than half a dozen sheep actually escaped' j bottle^branding; 0 v MorV 1 broke .away, r bu£. they, were, brought j back and branded. He considered' that the 65 sheep ought to have countieday delivered ; but when .he^ said so to. the, plaintiff, the , plaintiff replied, "That is not your \business : I shall get it 'settled in 'town.? Mr Cook and ; Mr ; Smith . briefly addressed the jury. rt _ f . j The' Judge said^ that ; afs the ' Conditions of Sale specified 56,000 acres, >he was ofr opinion that that amounted to a warranty that the area of land' to be sold : was 56,000 acres, "or: thereabouts/ It appeared that what there was, according tor, the evidence from the Southland Survey" .department,^ not 56,000,; but 51j815 ;|acres ,or a deficiency of 4185 , acres. JWas that only such a deficiency as" came within the words, "or thereabouts^'? If the jury should thinly not, they would then have to go into the question of the value of the. landJ As to the she'epj the-plaintiff said that the deficiency was, 447;. the defendant put it at 382 ; the difference arising out ofthe.dispute .aato 65. The, defendant said that* he ought not ib'b&charge even with the 382, because there was reason to believe that a greater number remained on the run unmusteredi, but which he could: probably have found if he had been allowed to scour the run again. Was there any deficiency ? If so, a fair price would have to be paid to the plaintiff. . He (the Judge} though^ the, jury 1 would jbin : him 1 in regretting that two gentlemen who, in Court, could put- their views forward' so fairly,' could not manage to settle their differences without coming intoGonrtJ '■>■■ ■•'•- ■■'''. ;;« ; I > Verdict for the plaintiff — damages, £882 11s 4d: — ■ j.