RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Tuapeka Times, Volume VII, Issue 358, 23 May 1874, Page 2

RESIDENT MAGISTRATE'S COURT, LAWRENCE.

(Before E. H. Carew, Esq., EM.) ] Friday, 22nd Apfcn,. J Holmes v. Lyons.— Adjourned till next \ Court-day, awing to the absence of defendant. •! ■ Hutchins v. Donaldson. — Withdrawn. *i Hay v. Michael. — Judgment. His Worship said : In this case plaintiff is an ' auctioneer, and at a sale helcLby him at Mr. * (Jascoigne's farm, a stack pf oats in the straw was put up four competition, with a condition ' that the oate were to be threshed out and delivered to the purchaser at Lawrence. The defendant was the highest bidder, and tha 1 oats were knocked down to him at 4a. per ! bushel, and were subsequently, at his request, 'j delivered at a store at Lawrence. The claim t is resisted by defendant on a plea of breach of r .\ warrantry, and' he alleges that he purchased ;$ upon a, representation by plaintiff that the * J oats were first-class oats, and that those de- j livered were 1 not first-class, but of inferior .] j qua ity. The rplaintiff . proved that, at_ d thte commencement of the auction, he read ' aloud certain conditions of sale, and one of J those conditions reads thus : "If any error if -1 made in describing the quality of any of the. } lots, it shalLnot vitiate the sale, but the purchaser shall be bound to take the article sold, . \\ provided that a sample has been shown." - It .* is not alleged that any sample was shown, but U that the stack was close to, and that.all who wished had access to the stack to examine it. .-<< It was not shown that defendant did examine the stack, and' Mr. Hay denies that he guaran- ,= teed the oats to be of first-class quality. ' For "< the defence, three -mtnesses gave evidence J

wgwgwitttiQM fty plaintiff. -,The {■dart a«s»tfcU while the oat* were being patted Iw,,th* plaintiff said fio would 2Seb.tiw« to be a first-class sample. Jfttt w&*at (Mr. Hog.) says that during , progress of the sale he heard plaintiff say pt.they were first-class oats, or a Brat-claw ■pie, be it not sure which ; and Colqohoun's jptnce is to the same effect. I must therepfind that plaintiff did represent the oats je <»f frft'elass quality. A sample of oat* ( bean 'produced, which defendant has igrn was taken from one of the bags deftd, and several witnesses nave characterj these oats as inferior. Another sample gdaeed by plaintiff, and sworn to as being lof the Jralk from which those delivered dtfendant.was taken, is admitted by the at witiJeaWs to be .superior 1 to the first aple, but not first-class. It ii probable it the whole bulk is of a quality between i two fßAplttv Plaintiff has argued or gMted ihikt the condition of sale which has pa referred to, and the fact, that the stack 4 otto n> at and before the sale open for pection, is sufficient apawer to the defennt'i case ; and that an intending purchaser ft common prudence would hare satisfied ddf of the quality before purchasing. ■ r the defendant it was urged' that the fntiJFt principal was the grower of the oats, i must or ought to hare known the facts, 1 that there was wilful, misrepresentation, gh regard to the conditions of sale, I hare p doubt that the words "error indescripd" apply only to a mistaken description, ] not to wilful deception or untruthful laments knowingly made. On the other jots I must answer that a purchaser is not Hind to search out defects which are hidden mi his sight, or, which require skill to deot, but. mar. act on .the seller's representaIB ; and if the seller has superior means of lowledge, and represents untruthfully, it wonts to a breach, of warranty. For these Mons I conclude that the defendant is (titled to reduce the claim in proportion to B diminished vjfc^e between the quality (presented and that actually delivered ; and on ptideration of all the evidence on that point [mess the difference at per bushel, rtich reduces the claim on that item to £35. fith regard to the charge for bags, the evince shows that plaintiff is not concerned ijth that part of the transaction, and of gone cannot recover. Judgment for £35, and as plaintiff -was ,[|ffwed to reopen his case to prevent a nonpit, I will not allow any costs to him. -