COURT OF APPEAL.

Wairarapa Age, Volume XXIX, Issue 8188, 20 July 1906, Page 6

COURT OF APPEAL.

A MASTERTON CASE. R. JOHNSTON v. N. MoRAE. (By Telegraph—Press Association). WELLINGTON, July 19. The Court of Appeal, consisting of their Honors Justices Ei wards (presiding), Cooper and Chapman, aat at 10.30 o'clook this morning, to bear the case of Robert Johnston v. Nehemiab Moßae, an appeal from the decision of the Chief Justice. Mr Lierdruan appeared for the appellant, and Dr Findlay for the respondent. The parties were sheepfarmors in the Mastertoa district, and the case arose out of a sale of 380 lambs by the respondent, Moßae, to the appellant, Johnston. The respondent informed an agent in November, 1905, that he had about 380 lambs for sale, which he described aa "good, well-Rrnwn lambs, fit for rape. 1 ' On the strength of this recommendation the agent sold the lambs to the appellant, and it was agreed that delivery of the lambs should be taken by the appellant early in the following January. On January 12th the appellant went to take delivery of the lambs, and when he saw them be refused to accept them, saying that they did not correspond with the description on which he had bought them. The respondent then sued the appellant in the District Court at Masterton for the prioe of the sheep, and the Distriut Court Judge found that the contract had been brought about ty the false, although not fraudulent, representation of the respondent, and gave judgment for the appellant. The respondent then appealed to the Supreme Court, and the Chief Justice reversed the deoision of the District Court, finding for the respondent. The appellant then obtained 'eave to appeal to the Court of Appeal, and brought this appeal. Mr Herdman, for the appellant, contended that the finding of the District Cuurt Judge amounted in law to fraud, although be had not found fraud on the part of the respondent. The appellant was therefore entitled to resoind the oontraot. He further contended that the oontraot for the sale of the- lambs was not enforceable under the Sale'of Goods Aot as it did not contain the representation of the respondent that they were "good lamba and fit *or rape," whioh waa a warranty of condition and therefore an essential term of the oontraot; Further, the lambs were sold subject to a condition, which waa not fulfilled; therefore the appellant was entitled to resoind the contract. The sale was also a sale by description, the appellant not having eeen the Jamba when he agreed to purchase them. Aa the lambs did not oome op to description, he was entitled to rejent them. Mr Herdman concluded his address at i 1.45, and Dr Fkdlay then addressed the Court on behalf of the respondent. Dr Fiudlay contended that unless Bome legal rule intervened the property and stock passed to Johnston under the sale note. It was a sale'of speoifia goods, and therefore it was not open to Moßae to buy other lamba to put into the lot sold; he waß bound to Bupply the specific lambs named in the sale note. It should be borne in mind by the Bench that fraud was directly alleged by Johnston in this case, and an attempt was made to establish it. The Distriot Judge had declared in his second finding that nothing in the finding was to be regarded as a finding of fraud. There was a seeming oontradiotion in certain parts of the judgment, which counsel explained by aaying that the Distriot Conrt Judge had confounded a statement of opinion (regarding lambing time, eto.) with a statement of fact. He submitted that the Distriot Court had practically fallen between two contradictions. It was common ground between each aide that it was a sale of apeoifio goods; yet the Judge had said that Moßae could have bought lambs in the open market in Maroh, and so have brought the mob up to conditional requirements. But the Judge found, also, that it waß a specific sale. The fact, said oounsel, was that the lambs were sold in November, and the onea then sold were the ones to be delivered. The statement that She sheep were "well grown" was mere words of commendation. There were many legal authorities on the point. "Three hundred and eighty Southdown lambs" was the final form of the contraot. Mr Justice Edwards said that there ■might be a warrant though a'man did not intend it to be part of the contract. It would be for the court to say in certain cases. Dr Findlay said that assuming there was a warranty, it applied only to the shortage, and Moßae would ' have been prepared to make allowance—probably 10 per cent.—had the other side proceeded Sa it might have done. It would, though, be an impossible position if a man had to deliver every sheep of a specified number "well grown and fit for rape." Mr Herdman briefly replied. Judgment was reserved, and the Court adjourned. This case concludea the cases lor hearing at this court.