OTAGO SUPREME COURT.-CIVIL SESSION.

Southland Times, Issue 921, 23 March 1868, Page 11

OTAGO SUPREME COURT.-CIVIL SESSION.

(Prorii^ thei" JOaUy Tunes," March 17.) MONDAY, j MAROBC 16th. ■- -'•'■ (Before His Honor Mr Justice Chapman.} The Court sat at ten o'clock ; and the trial of. Special Jury Causes. o was proceeded with.; . -_; .. ;h: :/ii. QUESTIONS; AS 'TO-THE BELIVEBT OP^Ai ''■"'■' ■'■' s^ATioiT i^ 'sraacp.' " " ; J : Websteb v. . MACLEAN.-r-rMr ; . Japies Smitn appeared for'the plaintiff- George Webster; and Mr George Cook was for the defendant, Hugh Maclean.

The plaintiff claimed £2000, for the j short delivery of land and of sheep, on the purchase of EunNo. 148, Southland, | known as the Benmore Station. The plaintiff's case was, that on; the 21st February, 1867, Messrs ! Power, Pantlin arid Co., sold, on behalf of Hugh Maclean, at : i their 'rooms in' Dunedin, Bun No. 148, as delineated onthe 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, held 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 about 250 acres, and about 80 acres" of freehhld land, on which was a house ; <a& woolshed and other improvements: being included with the things sold; VThe Conditions of Sale also included as to be delivered — 6005 ; ewes,l 4ol9 : wethers, 3608 lambs, and 401 rams r total, 14,033. ; Delivery was to be. given within i 14 : days of the sale; and there were provisions as to the rates at which an excess or a deficiency of ; sheep, was to ibe allowed for. ; ': George j Webster j the plaintiff;: I am a sheep farmer in Southland. ; I purchased at, auction the run in question, under the conditions of sale shown me. I saw the plan iio w ' before me,; at <'■ the offices' '• of Power,; Pantlin and; Co., the auctioneers, at, the time they sold, the run.' 'Theiadvertisement which ; attracted' my: attention 7 statedthe acreage of the pastoral: land at 60,000 prthereaborits : but I saw; at the auctioneers' rooms, a description stating the acreage^ 56,000;; I gave LI7,000 : the money ■ being ;payable rtothe agents, Dalgety, .iElattray^ and! Co., i The. -.sale was, on the 21st February, 1867. I gave; a. Cheque,, for Lsooo;'?afi. acceptance at three months, fori L5119 18s 7d ; one Hue 24th August, 1867, L 3676 10s ; and one.due.24th February, 1868, ..L3852 ALTbM.: The Lll9 18 7d on the first acceptance, waa for interest; the original terms having been LIOjOOO cash, and thei. balance at six and 12 months jtheinterest; SontheLsoCH3 being accepted by the agents as equal .to cash, so as to enable me to iget funds from Victoria. There, was interest on all the acceptances, and I have ipaid 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 jengage.jWith me ; and I did engage them. jOn the day after my arrival, Mr Blythe joined. me. I arrived onthe evening of i the 6th March. On the morning of the 7th, the defendant told me he had about j 7000 sheep in the yards already mus- 1 tered. These he was desirous of count- j irig out and delivering to me at .once. I i objected to beginning to receive, until all had been _ mustered ; but eventually I consented t0 ... have the sheep in the yards counted and bottlemarken, the sheep being counted out after they.had been ?o* 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 — and where I believe they would be safe if properly attended — a man being appointed to look after them : 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 tha,t could £ be found. The count was ragged to ibe-rrWethersr and lambs, 7511 ' oi* 7514 , ewes, 5667; -ram 5, .408.: I give these .figures from ; my /rough notes, on which^ l] j made.v Out; my -receipt. There were no, convemenees on. the.-, station : for. mdiithihg the sheep, and the country; .where the sheep were mustered was a very dangerous one'fpr dealing .with sheep, so that it; waa agreed, instead of mouthing, to divide the, sexes.^ Hepce, the classifica^ tion; l have given. .The fotal shown was 13,&86J;jor^a defidehcy of . 447. In the, ram ? r paddoct, on taking final delivery, the defendant said that jbie was between 300 and'iop" short.,, I.^as .interested in the tiittf question, which isi oiir great' terror dO^'t^ire , and it was -stated that 120 hadbeen sold,and about 50 _' killed. : Mr Blythe and' myself laughed, saying that so small a los* between shearing and the

muster as was thus »hown, '> was the ! most favorable ; circumstance we had heard of as to the run. When sheep arc -newly turned out, after shearing, *on a couniry .with tutii on it, is the time of 'greatest danger, to them ; as some must, while kept* iri, be short of food. ' : The defendant . told us, before we took delivery; tha,t ! he did not mean to go out again mustering; The run is of country 'which is rather rougher than the majority of Otago countryThere is a great- deal of flair on it, touch, high tussocky grass, and plenty ot- tutrix There was a dispute between us as to- 65* sheep — -whether they were included iri 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 700$ ; -I offered, witKout prejudice, to V'- go ; halves^' tis the defendant would riot consent - to that, ° I said that Jmusti refer the Question to the •arbitrators.' ! The 447 short, iticluded 116 •ewes. ! ! conclude that a; fair value forthe ewes would-be an' average of «l-78 j wethers and ' lambs, aboiit . 14s: ■ > The*e 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; rißefore, going to take delivery, I went to the Government Survey Office,- Southland*, andj in consequence of whatM there: learned, I complained ' 'to •; the ?. defendant that there was 4;400 acres' > shorts ofvtH& acreage .iii: the ! conditions ; of 'sale.' - I said -that I had Ibeen^compeUed' to money on thb deficiency-in Dunedin, before I could; ascertain theJ real extent f of* l;he acreage. I was anxious -to* arbitrate?; .but two attempts j fell cthfough.] Untold: the defendant that the-deficiency hvas I exactly what had been sold by tne Southland Government, and for which :iie had beeri compensated, so that he .could not but know of it..* He said that the inisdes'cription was :not his fault, But that ©fDalgetyy Battray 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 tbe country. It is, I should ; say, of a fair average' value of the ; run. ; I think- the value of the run as a whole: was between. :2s and 3s an acre:; - but mearly : half was ;under lease, of which two years were to run ; and Ir think that a fair value of what 1 got immediate possession .of. wouldbe 4s an acre.' Apart from icorisideratioit of the lease, 3s 6d to 4s might bei takeii as a fair price per acre forthe 4400 acresThe outside value bf the ! house,' and all other improyeraents, is, according to my calculation, between LSOO Md -L6oo*. Immediately :befbre this action was commenced, I saw Ithe defendant in Invercar^ gill, 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 ni.' dispute. He said that he was willing^ any day, to settle forthe sheep ; but that he would say nothing as to the land,; foV' that was altogether the [fault of Dalgety, Eattray and Co, We; were speaking lightly, and.- Lsaid that .1 would give him. , L2O it he would show me how I could go- • against Dalgetyj Battray and Co ; that; _U should be most happy to substitute then* for him / but that -I. was tpldj could not go against them, as , enly he appeared . ro. connection with the matter. -r * ■". * ■ *-• •- j By Mr Cock: The bush land i^s iiot sold : it is included in- the description of what the run was as on the Government map; but; it has;: been* excluded by agreement: with , the ; Governknent. The defendant paid rates only on tiie pastoral country ; and the rateable land ' only \?a* what was really sold, underthe conditions of sale. The.- conditions' compelled me to pay money,;and give! security for the remainder, immediately: after: the sale. '--AL- . put the money and -securities e-ihto the*, hands of Dalgety, Battray^. and -Co.> JW* *'•; -trustees forthe: purchaser as well as-the* vendor. It's just what I; shbuldtlike te* know, why an allowance was -nofcimade* for the deficient sheep : the ' arrangement was rather one-sidod, asilitittirns-oiii^ Distinctly, L^sayu .that, at dbheitime of delivery, tthe defendant did not proposeto go over the run again during the month mentioned ib thei 13th condition* of- sale,, so aa tp js.ee :what sheep ; he: could -getiin; - He 4id, immediatelyj;su < i^ : ietiwning- te* town, write to me to be goodft enough^ to* inform him when I„ mustered^b^that be? might be. present, 1 *nd Claim'*; ariy sheep not marked wit' the bottlefe brand. I declined, for I did uot recognise his right to any sheep after he had. scoured the rua

clean; and given me delivery. We did not muster until shearing tune, whicli was eight months after delivery. Then, making full allowance forthe sheep killed, and for a full average of deaths we found, after shearing, a deficiency ol 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 m excess of count, I should have been most happy to have allowed for them, and so 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 fence, the value would be £500 or £600 at the outside. I include the improvements in my estimate cf the acreage value of the run, • Ec-examined: If, before I took delivery the defendant had made to me the request which he made after he returned jo town, I should have 'declined to take delivery. I 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 claimed as his, half the number ef sheep onthe station. !: V ,: ' ■,-„ m i John E: Blythe, and E. 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 Bun, 148. On the 21st February; 1867, the acreage of the pastoral portion of that run would appear on; our books as it was on the lst 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. 3p. which quantity was: sold. The owner was entitled to compensation for that land ; but, not being the' Treasurer of Southland,-! cannot say that com pensa- * tion was paid. Since then, more land has been sold. ■ • ' By Mr Cook: There has been a^ trigonometrical survey of the whole -district, by Mr M'Arthur,': and a- topographical survey of .part of it: VFor the purpose of selling the land, theaxe&oi Bun 148 was not ascertainedwith sufficient accuracy ; for all station purposes, the area had been accurately assertained. -Of course there may really be.- a small excess or '< a small deficiency— soo acres, possibly. • J. A . M'Arthur,- who made *the- survey agreed with Mr Bakery as- to the ascertainment of the area. ; i ■ ' • Mr Cook ; briefly stated the case of* the defendant— that what, was ' sold', was not a specified acreage, 'but Benmore ; Station, 1 as it was ; and that -it was -the duty ofthe purchaser to satisfy himself* as to what he ; was buying. ! ■ : ' i " '-'■ ,! "'' './ i! *"*' Hugh Maclean, the defendant : • I remember Dalgety* Eattray*. &'Co. piittirig up for sale, on my behatf,vßerimbre Station, Southland, vl instructed them*td sell the station-rJ-didnot- give them/ ariy* particulars. , . A.-ax : aA- : . W : V,. Ax: Mr Smith objected.; ; The contract was admitted.-- v .;.■ ; ;<, >.v .-...■•; wva x:\' i-x. Examination continued: I instructed* them to sell • 60,000 i acres' or thereaboutsAfter the -advertisement * had; appeared; ' the plaintiff fcame 1 downy I showed'; him; over the station, and JA pointed out to' him where* about -3000 'acres: "-had been 1 sold. I . doi; not remember i! anything ' passing as td the total acreage <of therufi.' We had the bulkof the sheep about th& ; yards two days before the plaintiff arrived to taka delivery. He. wanted to wait until Mr Blythe- dame:,* .hut- -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 • the ■' sheep escaped being bottle-branded. The plaintiff ought to have brought enough men to have taken delivery of the sheep: I made it that we delivered' 13,651 -sheep, or 65 more than the plaintiff. We had a dispute as to the 65. The plaintiff ought to have kept the sheep properly. I -Wanted to bottle-brand the 65; but heiwould 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 near 100 rough sheep that were not mustered at shearing, were included in the count at delivery. I had, during the interval, sold about 100, and killed 70; and there would be about 100 lost, besides. At the close of the delivery, we compared tallies, and there was an agreement, except as to the 65. I refused to take the receipt, and it lay on the mantle-piece for two days. The dispute was not 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 sheep on the place after the delivery. I had not received a copy of the Conditions of Sale from Dalgety, Eattray and Co. I did not say that I would not take more trouble in mustering, t went, within the month after the sale, and saw Mr Blythe — the plaintiff was not there. I told 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 would not let me meddle with the sheep any more. There was afterwards correspondence as to arbitration ; and I applied iri 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 say the run was worth Is 6d to 2s an acre ; none of it : was worth more than 2s. 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 ori being bottle-branded ; I consider the conditions to have required that he should be there to take delivery from day to day. I say that not more than half a score of sheep escaped being bottle-branded ; there were too many men about the yards; and I believe that not half a score really got away. John Turnbull Thomson, Chief Surveyor,- Otago : I know the locality of Bun 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 man might be very considerably out in area. If I first made a trigonometrical survey of, 56,000 acres, and theii a chain' or actual survey, I might be 500 acres' 'out in the former, or 2000 acres. It depends greatly on the eye of the surveyor- •' T would not take as evidence anything 'but a map from actual survey. • ' ' ' By Mr Smith : I made a reconnaisance survey of this tract of country about 15 years ago. ■ George Hately, surveyor, foririerly, ;: in . the employment of A the Otago * Government : I have been over the country shown in this map; The differerice be-, tween this map , and a in'ap from a "proper . survey, might be/" great br but' little. ,* It would depelid on* th# traverse of the creeks, and the different positions in lines : which are not straight, thk tops : of ■' hills through which' boundaries rurL, , I shpukL not- be ; ; much ; surprised in a ' difference of 5000 dr 6000 acres? between the results of the two' mcwlesi in dealing with a tract of 56,000 -or 60,000 acres. - THe irregularity '■ of ; bush!, and of bends lof the ! New Eiver, 1 wOuld ; greatly affect' j the result of* a' trigonometrical] survey:' * William ; B. /.Caider,!'riiei'charitYlnvercargill: am- pretty* well acquainted with-the Bemhore station. '■'■ As represent- . ing thfe* second ; lrib*tgageiß,- 1 had occasion, sat the time 6f'the ; sale, ! t6 : take a pretty j.close'estimate'Of the*. iihprovemerits.'* on jthestastioh.-' 'Excluding the ' wire-fencing ". ■ on •■ the ■' tfoundaries ;• and ■ the pre-emptive vrightV'l'thirikLl^OOtdbe a ! fafr or low j estimate of their : M^ of :the : value of the 'sheep , ! ! as* upon the ruri, !wafe'l4s ; a heaaVall ; round'; arid I* calcu-' lated'the land at , 2s l ari^abi'e -without improvements, of at : 3s'.with : itnptdverpents. i made a considerable allowance for the leased ! 'larid, and an allowance for.' 'the land sold.* ; ;i ' '■ ' * '"' ' ' Ai'Ti'.'l'H - Edward Scoular, station manager,' "Upper Waitaki,' who. was On Bun I4§' at . the time' of the delivery, " and for about ' ■ six months previously, . believed that ; ' not more thaii .half a dbzen sheep actually, escaped bottle-branding." More 'broke' away, but they were brought ' back and branded. He considered that the 65 sheep ought to have counted as 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. The Judge said that as the Conditions of Sale specified 56,000 acres, he was of 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 to the evidence from the Southland Survey department, not 56,000, but 51,815 ; acres or a deficiency of 4185 acres. Was that only such a deficiency as r came within the words, " or thereabouts"? If the juryshould think not, they would then have to go into the question of the value of the land. As to the sheep, the plaintiff said that the deficiency-was 447 ; the defendant put it at 382 ; the difference arising out of the dispute as to 65. The defendant said that he ought not to be charge even with the 382, because there was reason to believe that a greater number remained on the run unmustefed, 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) thought the jury would join him in regretting that two gentlemen who, in Court, could put thenviews, forward so fairly, could not manage to settle their differences without coming into Court. Verdict for the plaintiff— damages, £882 lis 4d. - .