RECORD BUTTER SALE.

Taranaki Daily News, Volume LII, Issue 99, 24 May 1909, Page 4

RECORD BUTTER SALE.

LITIGATION AND THE RESULT. AN IMPORTANT JUDGMENT. It will be remembered that when butter was scarce and dea r last winter a record -ale was made by the Mangorei Co-operative Dairy Company to Messrs. J. B. MacEwau and Co., the price paid being the- record rate of Is 4'/ 2 d a pound f.o.b. Now Plymouth. The contract was for August butter, but before the month was done the buyers repudiated the contract on the ground that the butter was not first-grade, the quality, they alleged, which was agreed upon. Recently the Mangorei Company brought an action against the MacKwan Company to recover £lO5 13s 4d, loss on the alleged breaeh of contract. The judgment in the case (that of Mr. Justice Chapman) has since been delivered, and it is in favor of the plaintiffs' for £ 107 10s, with costs. The judgment is of especial interest. In summarising the evidence the judgment says: ''Among the questions as to which the witnesses differed were those as to whether (a) the butter was or was not to be graded, (b) whether, if graded, it was to be graded at New Plymoul h as' suggested by the sellers, or there or at Wellington at the option of the buyers, as suggested by them, (c) whether it was to be first-grade, <d) whether there was to be any warranty as to quality, (e) whether plaintiffs were, permitted to deliver a certain quantity of July butter then on hand. Dealing with the claim as to butter being first-grade, the Judge remarks: "The only evidence to support the suggestion that such an understanding existed arose from a letter written by defendants to plaintiffs' on 10th August, in which they say 'in accordance with our conversation we now confirm purchase of your August bulk butter.' one of the terms stated in which is 'to be first-grade.' The witness who received this, Mr. Garner, the factory manager, says that lie said this, and noticed tint it did not represent the contract, but did not at the time realise that it wae of any importance. Witnesses, consisting of directors, who were at the meeting all say that no such stipulation was made, and Mr. Arthur MacEwan's evidence falls short of saying that it was. The plaintiffs' witnesses go further, and say it was understood that the butter was not to be graded, and that this was' mentioned in the conversation. To support this they referred to the circumstance that after trying 'hard to get some reduction in the price, Mr. A. MacEwan said: 'Weil, as you will «3« the grading charges you 'should allow me the sixpence, a box saved.' or something like that. Mr. MacEwan qualifies this by saying that this request was only conditional on direct shipments being made, as he did not know where his Wellington office were sending the butter, and related not to any stated sum put to any saving theplaintifls miglit make through the butter not passing through the freezing works. This deprives this evidence of its determinative value.''

The final paragraph of the judgment says: ''lf there was a breach of warranty with reject to the quality, that might form the subject of a cross" action or be used in this' action in reduction of the price, but for this purpose evidence of the pecuniary value of the difference should lm precise. Now it is quite evident that the great loss mi this butter was due, in the main, to the collapse of the market. I doubt whether its deficiency would have been heard of if the market had kept up fo r another month. All the evidence before me was given in support of the defence. It was not really- directed to the subject of inducing the price. The only evidence on this subject was a somewhat wide and inexact statement that the difference uetween the two grades was usually reckoned at y s d a pound. That cannot lie regarded as precise evidence addressed pointedly to the question of th<dainties in connection with an evpress war.f.nty. Such evidence would have to relate to the particular butter. What was on this point put forward as a matter of defence cannot be relied on in the absence of a condition or terms' as to he grade or quality. The remedy is that indicated by section 51 lb) „f the bale of Good* Act, 1895. now superseded by section 54 of the Act of Wo,- u,e butter was merchantable under the „e----senption by which it was sold, and this is all that plaintiff has to show."