COURT OF APPEAL.

Wairarapa Age, Volume XXIX, Issue 8263, 17 October 1906, Page 7

COURT OF APPEAL.

A PAHIATUA LAWSUIT.

At Wellington, yesterday, tbe Court of Appeal, consisting of Mr Justice Denniston, Mr Justine Edward?, Mr Justice Cooper and Mr Justice Chapman, beard an appeal by Harry Gordon Balfoar-Kiunwar, aheepfarmer, Kumeroß, Woodville, against a decision of tbe Chief Justice on March 7th, giving judgment in favour of the New Znaland Loan and Mercantile Agenoy Go , Ltd., id an action brought by the appellant against tbe company to recover £513 Os 6d, the price of 954 mixed sheep with interest thereon. Dr. J. G.- Pindlay appeared m support of the appeal ano Mr A. R. JBunny (Masterton), with Mr M. Myers, for tbe respondent Company. The case brought forward by the plaintiff in the original action was that on December 26tb, 1903, a stock dealer named George Rich ards and the defendant company induced plaintiff to sell to Riahards the sheep in question for a sum of £450. The company bad an interest in tbe sale, inasmuch as it was part of tbe arrangement that tho sheep should be sold through the company, and tbe proceeds pass through its hands. At tbe time it was agreed between plaintiff and the company, through the com pany's agent in Pahiatua, Frederick Draper, that the sbeep should subsequently be sold by auction by the oompany, which would pay plantiff the price and indemnify nim from all loss and damage by reason of the sale to Richards. On June Ist, 1904, plaintiff delivered tbe sheen, and on the sth of the same month they were sold by auotion by the oompany at Pahiatua; but instead of paying over tbe proceeds to plaintiff, the company applied the money in payment of Richards' in iebtedness to itself. In an alternative cause of action it was alleged that the oompany had agreed that delivery of the sheep should be taken by the oompany and not &y Richards.

The defence pat forward by the Loan and Mercantile Company wes a general denial of the in the statement of claim, a denial of the existenoe of any snob agreement as tbat alleged, or of Draper's autburity to enter into any such agreement, which would require to be In writing, and to be signed by tbe company or its agent lawfully authorised to do so.. It was admitted that tbe sheep were sold for £468 Is 3d, and the proceeds placed to the credit of Richards' account with the oompany; Ihe company further olaimed to have discovered the existence of an instrument between the plaintiff and Eiohards and Mrs Richards whereby the latter granted an assignment of certain chattels to plaintiff in consideration of a sum ' of £487 due by Richards. When tbe case was beard before tbe

Chief Justice, tbe evidence of Fred-

erick Draper was not available as hie whereabouts were unknown. On tbe appeal being called yesterday Mr Myers applied for leave to have Draper, who was in attendance, examined. The application entailed a lengthy argument on the part of Mr Myers. At the conclusion of counsel's address, the court gave judgment without calling on Dr. Findlay, ruling that the proposed new evidence was inadmissible. Mr Justice Denniston observed that tbe respondent company was oontinually anxious to obtain tbe evidenoe of fcbe witness in question, and before tbe actual trial took place exhausted every means to obtain this evidenoe. The motion was refused, with ten guineas costs. \ Argument on the appeal ! proper was not concluded when the court adjourned.-Post.