A FORWARD DELIVERY CASE.

Wairarapa Age, Volume XXXI, Issue 3043, 13 November 1908, Page 5

A FORWARD DELIVERY CASE.

CLAIM FOR £125

A case was heard before Mr W. P. James, S.M., at Masterton, yesterday, in which the New Zealand Loan and Mercantile Co., Ltd., claimed from Oliver Bubb, of Gladstone, farmer, the sum of £125. Mr P. L. Hollings appeared for plaintiff, and Mr C. A. Pownall for defendant. The statement of claim set out: — (1) That in November 1907 the defendant instructed the plaintiffs, as his agepts, to purchase a line of 600 ewes lr<>m J. Cresswell at not more than 16s 6d per head, on the understanding that if defendant ultimately found he would only require 400 plaintiffs should find another outlet for the balance; (2) plaintiffs accordingly, as defendant's agents, purchased the said line of ewes at 15s, delivery to be taken on 15th February, 1908, and advised defendant thereof; (3) in January, 1908, defendant informed plaintiffs that in consequence of certain arrangements he was making with his sons in regard to his property he would not be able to take delivery of the ewes purchased, and instructed the plaintiffs to take delivery of the 400 and dispose of same on his behalf for the best price that could be obtained; (4) plaintiffs accordingly took delivery on behalf of the defendant, and instructed Messrs Abraham and Williams to sell the same, and the sheep were accordingly sold by public auction on 4th March, and realised 10s per head, viz., £2(30, less Abraham and Williams' commission jf 2£ per cent. —£5, and defendant was advised of the result of such sale. Wherefore plaintiffs claimed to recover trom defendant the amount paid for the purchase of the 400 ewes, less the amount realised on sale by d fondants' instructions, leaving a balance of £125. In the alteri. .ive plaintiffs claimed the said amount as on account stated and agreed on May 21st, 1908. F. W. Carey, manager of the Loan and Mercantile Agency Co., Ltd., stated that defendant Bubb had told him he could not take the sheep, as he had no- feed nor water for them. The sheep were submitted for sale in Eketahuna in a condition as good as it wa3 possible to get them. Witness said that in conversation with defend-

ant the latter did not repudiate liability over the matter. Later a letter was received from Mr Pownall

repudiating any liability. Defendant refused to sign promissory notes for £6O, but later made an offer of £SO in full settlement of the account, which the head office of the Company refused to accept. Defendant did not say he would not accept the ewes unless witness disposed of defendant's stock. Sheep came down to less than 10s last year, 16s being for some lines, and more for special lots. The uncertainty of pastoral conditions through the drought made it difficult to estimate the value of sheep in January and February, as no one wished to buy. On forward delivery 12s or 13s jnight be paid. Oliver Smith, stock agent, said he bought some of the stock sold in March at 10s per head, which he thought was a fair market price then.

This closed plaintiff's case, in tha course of which considerable correspondence was read and the plaintiff Company's books referred to. Mr Pownall, in opening, contended three legal points—first, that the sale was not established by the correspondence within the Statute of Frauds, for lack of terms; secondly, that if there was a sale it was made by Carey on behalf of his Co npany; and, thirdly, that the evidence of the documents showed that either the Loan Company had acted as agents for the venders and as such could not contract with themselves as agents of Bubb, or that as agents for Bubb they could not pay over to the original vendor without Bubb's" authority. On the facts it would contended that plaintiffs had no right to hang on to the stock when the market was falling without defendant's authority. C. H. Cormack, manager of the Bank of New Zealand, at Carterton said the bank held securities over defendant's fat stock, and defendant banked with them. Defendant consulted witness about the present case, and Carey also, the latter coming to see if witness could not induce defendant to come to soma arrangement. Witness told Carey then that defendant denied having purchased the stock, but Carey said this was not a fact, and the owner uf the stock had held them for two months to allow defendant to take delivery of them. Witness told Carey that defendant had said he might possibly be able to take over 400 sheep, but when he heard that the Cotnpanv had purchased 600 sheep he said he had not authorised the purchase, and would have nothing to do with it. Witness told Carey that Bubb said the Company offered to compromise for £4O, but he had re- , fused. Witness then asked Carey if the Company were still open to settle, Carey replying: es > not for that amount, but |(fcbjibly for £60." Carey promised to advise the Wellington branch next day.

By Mr Hollings: Witness was 1 «** not £BO Carey suggested Jkf* » compromise. j.? B. Moodie, manager for Dalgety and Co., said his firm sold the &ves in question to J. Cresswell. Witness said if he had had a discretion as to holding the line of sheep in dispute as p : aintiffs did he would have been inclined to hang on a while i to see if rain came. If there were any doubt as to the transaction ' witness would have disposed of them at once. Witness being informed of the position of the matter from the correspondence, said he thought he would have tried to realise at once without waiting for the time for delivery to arrive. It was difficult to find purchasers for sheep in January. Good store ewes brought about lis 6d to 12s. Oliver Budd, settler, defendant, said that in November, 1907, he met Carey in Perry street, when Carey asked if witness desired any more of

Strang's ewes, witness replying that he did not want any more sheep then. At a later date Carey asked if witness wanted any sheep, but witness again said "No." Carey then came down to witness' house and said he had a good line of sheep belonging to Nitz, of Te Wharau, at 16s 6d. Witness said the price was too high. Carey pressed witness, and eventually the latter said he might take 400 if he could get rid of his own. Carey said there would be no difficulty over that, as he would sell witness' stock fast enough. Witness asked what would be the position if the other sheep came and his own stock was not sold. Carey said in reply that witness would not be asked to take the sheep if he did not want them. Witness said under those conditions he would take the sheep. That was all that was said. Witness was then fully stocked. The bank was opposed witness realising on his own stock on account of the low prices. On January sth witness found he could not take the sheep and so he made a special trip to Masterton to tell Carey he could not possibly take delivery of' them. lorns, one of the Loan Company's agents then came and saw witness in January, and remarked that witness was better than most men, as he gave plaintiffs several weeks to get rid of the sheep in, and they would soon do thai. Later witness got a letter from the Compaiy, in which the verbal arrangement with Carey was mentioned. Witness again saw Carey and said he would

reruse to incur any loss over tne sheep, Carey replying that ha thought there would be no loss. Witness then got a bill for 600 sheep, which he returned with a memo, inscribed at the toot "Never bought 600 sheep." Another account was returned marked "Not acknowledged." Witness was then asked to sign an agreement to settle the matter for £4O, but declined. On the advice of his banker witness made an offer later to settle the matter for £6O equal to half the loss, sooner than have litigation.

By Mr Holiings: Witness withdrew an offer to settle for £6O, because it was not to be a full sattlement. It was true witness offered to make a £SO cash settlement of the matter.

J. Gordon Eliott, J. Bubb and A. Bubb were also witnesses for defendant, their evidence being corroborative of previous witnesses. Decision was reserved.