RESIDENT MAGISTRATE’S COURT.

Temuka Leader, Issue 2579, 9 November 1893, Page 3

RESIDENT MAGISTRATE’S COURT.

Temuka—Tuesday, November 7tii. [Before C. A. Wray, Esq., R.M.] CIVIL CASES. J. Brown v. W. L. Duncan—Claim £ll 17 s 2d. Mr Salmond for plaintiff and Mr White for defendant.

This was a case in which plaintiff claimed for loss incurred upon the sale of certain potatoes, together with a balance of a trade account. Defendant paid into Court £l. 18s 2d, being balance admitted, 13s 9d, and costs. Mr Salmond briefly sketched the outline of hL client’s case, and called Job Brown, merchant, Temuka, who said the defendant owed him on a general store account of £lO 2s 9d. Remembered agreeing to buy five tons of potatoes from defendant at about 25s per ton or thereabouts, and subsequently agreed to take seven tons, so as to close the account. They were delivered on Ist November at the railway station. Did not know of their delivery. They should have been delivered on the Friday previously, so as to allow of their being shipped. On the Friday following, Nov. 4th, sent a man to truck the potatoes for shipment to Wellington per Union Company’s steamer. They were rejected by the National Mortgage and Agency Company, the shipping agents. Saw Duncan on the 7th, who pooh-poohed the whole thing. Told Duncan he would be held responsible for any loss sustained, and that he should sell at the first opportunity. Instructed Messrs Maslin & Potts to cart potatoes and sell to best advantage. They stated that the potatoes were rotten, and could only be sold with difficulty. '1 he total proceeds showed a net profit of £1 14s 4d. Gave Duncan credit for the amount received, less railage. Supplied sacks himself, and paid railage to Timaru. By Mr White: Produced the books showing the statement of general account. The accounts had been altered so as to make the debtor and credits balance to a particular date. There had been no alteration of items or charges. The contract was made in June, audit was agreed that defendant should hold the potatoes a fortnight or so, as there was no sale for them. Plaintiff was to supply sacks. They were second-hand sacks. Was not aware that Mr Duncan left word at the store they were delivered. Might have sent liim a note telling him to deliver. Remember Mr Duncan saying he and his family had picked them over carefully. Did not say he would look after the potatoes himself. Did not remember saying to Mr Duncan “ This is a fine mess you’ve got me into.” Did not go to the railway station to see the potatoes. It was agreed he should deliver them there. Account produced, dated Ist December, might have been the first claim made in respect of loss. Potatoes would not lose much in weight between June and December.

By the Bench : The purchase was made in June, and the potatoes kept at witness’ request until at least October. .Mr Duncan might have delivered them at any time. Did not supply him with bags until October.

By Mr Salmond : Only saw defendant once or twice. At the end of September defendant offered to deliver potatoes. Asked him then to keep them a fortnight longer. Thomas Sheen, storeman in the employ of last witness, remembered trucking potatoes at the station in November. They were in bad condition, and wherever they had been on the ground they wore rotten and smelt strongly. The potatoes were in the shed. They were consigned to Timaru. Did not inform Mr Brown about the potatoes, as he had another man with him.

W. S. Masliu, auctioneer, Timaru, gave evidence as to the sale of the potatoes. They were very wet, and in such bad condition that they had to be stacked up outside. They were the worst potatoes ever offered for sale. The bulk of them were sold for cattle. Good potatoes* were worth about 2s 6d a sack. Concluded from appearances that the potatoes had been frosted before being bagged. It wa? usual to sell potatoes earlier than October, but if well pitted they ought not to be bad in November. If the potatoes had been delivered in good order on November Ist they ought not to have gone bad. By Mr White : Potatoes lost in weight by the growth of shoots. Potatoes in November would not look so well as in June, but they ought to be eatable. If the potatoes had been properly cleaned when bagged they would keep for twelve days. . W. Millar, storeman for Messrs Maslm & Potts, remembered taking delivery of the potatoes at auction rooms, and gave evidence as to their bad condition.

Samuel Cain, farmer, Seadown, said that potatoes dug out of wet ground would probably go bad, but of a frosted lot it would be possible to pick out some good ones. If pitted in good condition from June to November only a few would go bad.

Mr White outlined the defence, and called

W. L. Duncan, the defendant, who said that in May, 1892, he received a message from Mr Brown that he was buying potatoes. In June agreed to sell seven tons. Agreed to keep them a fortnight or so. Brown was to send up sacks. Oli’ered to deliver in August, as he was going to open the pit for another man. He would not take them as they were too low iu price. Told him he could not keep them longer, as they were on Mr Guild’s land. In (September cautioned Mr Brown that he could take no farther responsibility about the potatoes. The sacks were sent up on the 29th October, with a note asking him to fill the potatoes by Saturday. Loft word at Mr Brown’s it was impossible, but would do so by Tuesday, Opened the pit, and with the assistance of the children filled th 3 bags. It took three days, as the potatoes had grown a good deal. Mr Guild saw him while at work. Mr Guild bought five tons of the same potatoes, and they were pitted close by. When he delivered them at the station wont to Mi' Brown’s and told him a consignment note was wanted. Advised Mr Brown to see the potatoes. He said it did not matter. Later on Mr Brown complained that the potatoes were rotten and the bags rotten The hags wore not lit for export. Told Mr Brown the bags were rotten enough, but was sure the potatoes were not. Mr Brown replied that they were rotten, as they had seen them at the railway station, T'old Mr Epovy'ii ha did not think him pitch a fool as to solid rotten potatoes for shipment. Went himself to Timaru ami saw the shipping clerk, who said delivery would not be taken as the bags were rotten. Went afterwards to see plaintiff about the account, and offered 13s Od in pelt-lament. Brown would billy accept it pu aepount, and would not give a receipt except on apcoiiut. Ho then demanded ■ujd got his money back, potatoes were pitted in good order. Reckoned potatoes WQflld ■ decrease 2cwt to the ton at least, and should be worth quite 10s a ton more to recoup one for pitting and keeping. Sold potatoes to a number of other people who made no complaint. The p itatoea were delivered on the Ist Tuesday in November. It was a fortnight

afterwards that Mr Brown came to him to the best of his belief. By Mr Salmond : Did not believe that the potatoes were so rotten as described. They were delivered in good order, in as good condition as it were possible for them to be at that time of the year. Delivered potatoes to Logan and others out of the same pit, and there was no complaints. His opinion was that if the potatoes seen by Messrs Maslin & Potts were his that they could not have been so bad as represented. Geo. Davey, carrier, Temuka, remembered carting potatoes for Mr Duncan, and was present when some wore picked. Those that he saw were properly picked, although they were much grown. They did not get wet after carting James Guild, farmer, Trevenna, had some few tons of potatoes from defendant. They were pitted separately. Used his as required. Haw the potatoes in the pit when they were being picked for Mr Brown. They were grown, but sound. All frosted potatoes or potatoes damaged by wet would have been a mass of jelly months before. Witness’ potatoes were pitted at the same gime as the others and were sound up to January. Thought thf-re might have been water exuding from the potatoes after the sprouts had been rubbed off. Did not think Mr Duncan’s potatoes could be rotten, although they might smell. By Mr Salmond : Thought the potatoes might have got bad after leaving the pit, as the tuber would be exerting the forces of nature to re-produce itself. Noticed that previous witness had described the potatoes as soft. By His Worship : The potatoes he saw at the pit, and which were carted away by Mr Davey, were in a condition that no man could have condemned. It was probable the heat and handling caused the potatoes to go bad. His Worship declined to allow for the seven tons of potatoes sold, but gave judgment for plaintiff for £1 10s lOd, allowing the potatoes on the railway weights. Costs were only allowed on the amount recovered.

Miles v. Nathan —Claim £5 Is. Judgment summons. Amount to be paid forthwith, or in default 14 days’ imprisonment. The Court then rose.