A FRUIT DEAL

Wairarapa Age, 25 March 1920, Page 3

A FRUIT DEAL

ACTION IN SUPREME COURT. A case was heard in the Supreme Court in Masterton yesterday, in wh ch the Hawke's Bay Fruitgrowers, Ltd., proceeded against \V. J. j O'Dwyer, fruiterer, of Masterton, for £217 10s Gd for fruit suppl.ed. Mr liiss appeared for plaintiif, and Mr Rogers (Hastings) for defendant. In a counter-claim, O'Dwyer contended that a large quantity of fru'.t and potatoes were supplied in an unmarketable condition, and had to be &old at a loss in Wellington. William Davy Southcot, manager of the Fru.tgrowers' Company, Said he actually saw the potatoes and apples railed. They were all of good qual.ty. Early in October, when w:tness was in Masterton, he called on O'Dwyer, who said he had posted a cheque the previous day. O'Dwyer then said that the appl-es did not keep too well. Ho said he had sent some to Wellington for sale, as they would not keep. Witness also saw the potatoes, which were in a good condition, with the exception, perhaps, of a sack. Upon returning to Hastings witness found that no cheque had arrived. He then wired to O'Dwyer, stating that he intended to draw on him through the bank. Two days later O'Dwyer sent another telegram saying he was sending a cheque by registered mail. They waited, and an envelope arrived with a Masterton cheque inside. The cheque was unsigned. The cheque was returned to O'Dwyer for signature, but no further word was received from him. Albert Vivian Pyzzey, commercial traveller, sa'd that during the month of August, when he took O'Dwyer'a orders, he had not received complaints from any of his clients regarding tho quality of fruit or potatoes. O'Dwyer had never complainted to witness of bad fruit. Witness's partner, Farraher, had told him that O'Dwyer had complained of the quality of some apples. , Gertrude Stewart, clerk in the Fruitgrowers' Company's employ at Hastings, remembered receiving a re- 1 gistered letter from Masterton for over £2OO. There was no signature. As O'Dwyer had wired to say that he was forwarding a cheque, they thought it must be from him. The cheque was returned to O'Dwyer for signature. Mr Rogers said that the case for defendant was that the fruit was-bad. Tho legal position was whether the plaintiff company sold the fruit to defendant in a bad condition, and, if so, what was defendant's loss. William O'Dwyer said that the order for the potatoes and the 150 cases nf apples was given when both Pyzzey and Farraher were in the shop. When the caseß of apples arrived, and ho opened them, the second case was round to be in a bad condition. One case was sold to Mr McEwen and another to Mr Oliver. Other customers also bought apples in small quantities and brought them back. Mr Kemp wanted 20lba of Sturmer apples, and they had to open several cases before they could get the necessary quanbty of good apples. Witness had to replace the apples for his customers. When Farraher came into the shop witness complained Farraher said he would ring up Pyzzey and try to got the company to make a rebate on the fruit. His Honour: Why didn't you at once complain to the company about the bad fruit. Have you any explanation to make?— No. You d dn't try to ring up the company and let them know P —No.

HJB. Fruit Co. V O'Dwyer.

Upon the resumption of the Court after tiie luncheon adjournment, W. Jf"\. J. O'Dwyer. continued his evidence. V Uoas-tixani-ned by Mr Rogers, o'a>vv>ci- smied that he had sent k-0 taaes ox apples to Wellington to try and sell thorn, because lie saw that tutjy wore not giving vo Keep. He hud tuiu Mr uanauor that lie had sent tuL-m. Jtto gut alter paying' all expenses from the proceeds of the saw in" \Veii.ngton. iv«garaing tiio four tons 01 potatoes, ne nad iece>ed ■,tnem at tiie railway* station and had citiUvcred one ton to a tisli shop, one ton to iVlr Crass, and a sacK eticli 10 Mrs eihac.telcon and Airs Boielle. The two lad.es and Mr Crass had complained immed-ately, and Mr Cras3 jiau told him to take them away, ivh.r'i lie did, and put them in his . store. He had sold one ton to the fisix shop for £9. Finally, he had to give all the poiatoos to a pork butcher lor pig iooo. tie remembered Mr Soucneot pay-ng h : m a visit, and he showed him sevoral cases of fruit in h. 13 storeroom, and told him about tho IUU cases ra.lcd to Wellington. From there they went to the storeroom outside where he had tho potatoes. Mr Southcot picked one up from the floor, ana after cutting ,it w.th his knifo admitted that tiiey were bad. They returned to the shop, where Mr Southcot' said ho would send 12 cases ol apples, to which he replied that twelve cases would not compensate him for ' hid loss. He sent his cheque in good faith to the Fruit Company, because ho did not wish to "fall out" with them, and thinking ihey would allow compensation. 'He sent a cheque for ±,vw <jm, ana notified the Fruit Company by wire in September. Later ne stopped payment of all cheques as he .j>y had had several stolen, including the <Pf one sent to the Fruit Company he thought. Afterwards the cheque came :'b: c\ irom + he Company, as it had not been signed* ' xii to Mr Biss, witness stated that the order waß .sent on August sfn.5 f n. -He received them on August 11th.. He delivered several quantities on the 12th August, and received complaints bn the same n.ght. Mr Biss: You claim that the 2£ cases of apples sold by you oni; brought £7 10s?—"Sea. Mr Bisa: You have the book? Witness; Yes. . Mr Biss: Well, then you had better get it. .- His Honour asked.witness could he explain how it was that he had noi written or taken tho trouble to notify tho Company of the cond.tion of the . Ilfrfruit the day after its arrival. , To Mr Bisa: This was the first lot of fruit he had sent to Wellington for d sposal and had told Mr Southcot he had sent them; The cheque returned by the Fruit Company Jhad been burnt. , Mr Biss: When you had ordered j 210 cases of apples you were not; going to let' them l ; e in a storeroom. You found them bad the first day, and i to Mi complaints the second. day. Yet it was two months before you . complained to the Company * iu.tß Vioiet O'Dwyer, wife of the defendant, stated that she remembered Mr O'Dwyer having dealt with the H.B. Fruit Company. She remembered the last deal, which took place somewhere 'in August, 1919. In her . * capacity as assistant she had to dreßS , the wijjftow and fill the trays. Witness had to go through two or three cases to get roughly 151bs. She had re-, ceived.several 'complaints about the ' apples sold. Witness had also receiv- ' ed complaints about the condition iof the potatoes. The witness stated that she was nearly always in the shop, and had seen Mr Farraher twice. She had not seen Mr O'Dwyer refund any money, nor had. she done so herself. Hermann Crass/ of the Club Hotel, Masterton, stated that he remembered making a purchase of potatoes about ' the 14th or 16th August, the quantity being one ton. Some were cooked and all went black. He did not pay O'Dwyer for them, and O'Dwyer took them back. Hla Honour; How many sacks did you receive? —Witness: Twelve. A. F. MeEwen, of Masterton, stated that he had relieved defendant at the .shop when he went away for a hol : - day. He had bought a case of apples from O'Dwyer about the middle of , 'August and paid for them, but could not remember how much he was charged. His Honour: Do you really mean to tell the Court that you do not know.how much you paid for this case? Witness stated that he was not sure. "Well, I do net think your evidence is going to be of much assistance," remarked hV Honour. Mrs' Margaret Shackelton, of Masterton, stated that she was a customer of O'Dwyer's, and had bought a sack of potatoes from him in August last. They were bad, and she had to get a large d'sh full for a meal. W'tness informed Mr O'Dwyer, and said the ones he had in the store 4 were just as,bad, Mrs M. Boille stated that she had received a sack of potatoes from Mr O'Dwyer in- August. Mr O'Dwyer had brought them from the station. They were blighted and black. Miss D. B. Boielle stated that she wag emtdoyed in Mr O'Dwyer's shop dur'ng 1919. Witness found the H.B. Fruit'Co.*s apples were in a bad conis- d'tion, being rotten at' the base of the stalk. To Mr Biss:' Witness had to go through about six cases before she conl'l get sufficient good ones to fill the trays. . In giving judgment the Chief Justice depreciated the conduct of the defendant. "What can be made of a man who comes into Court and makes s"ch statements?" asked his Honour. Fi« Honour gave judgment for tho full amount claimed, an,., costs against the defendant. )