SPRAGG V. EDGECUMBE.

Waikato Argus, Volume VI, Issue 450, 20 June 1899, Page 3

SPRAGG V. EDGECUMBE.

As mentioned in our last edition this action was heard in the Supreme Court, Auckland, on Friday and Saturday last, before Mr Justice Conolly and a jury of four, of which Mr Alison was foreman. Mr T. Cooper, with Mr Hanna, appeared for the plaintiff and Mr H. Campbell, instructed by tir A. Swarbrick, appeared for the defendant. The plaintiff (Mr Wesley Spragg), carrying on business as " The New Zealand Dairy Association," sued the proprietor of this journal for £2C() as damages for a libel alleged to be contained in a letter signed " Looker-on," which appeared in our bsue of January 10th last. Mr Cooper, in opening the case for the plaintiff, read the statement of claim, which sets out the letter of " Looker-on," aud states that the defendant thereby imputed to the plaintiff in relation to his business and his dealings therein that the plaintiff had falsely stated the quantity of butter realised and had suppressed the truth and dealt with the question of the percentage realised in an improper and dishonest way. The statement further states that by the said letter the defendant meant that the plaintiff had cheated the milk suppliers and had been guilty of fraudulent conduct in connection therewith. Counsel then read the statement of defence, which denies that the, words used are capable of the alleged meaning, and says that in eo far as the said words are allegations of fact they are true, and in so far as they consist of expressions of opinion they are fair comments made in good faith and without malice upon matters of public interest Mr Cooper said the plaintiff did not Beek to punish Mr Edgecumbe by vindictive damages, but they asked for something more than a nominal amount. Wesley Spragg deposed : My name is Wesley Spragg. I carry on the New Zealand Dairy Association, and have a nnmber of creameries in the Waikato. My business consists in purchasing milk and turning it into butter, we purchase the milk on what is known as the Babcock test. On October 13th last I issued a circular (put in and marked). The statements in the marked portion ot the circular are perfectly true. Twenty-five pounds of 3 6 milk ought to make one pound of butter. Upon this basis we had a shortage of 1415 lb of butter. About the 20th of November last I addressed a meeting at Hamilton at which Mr Edgecumbe was preseet. It was a meeting of milk suppliers, and I invited Mr Edgecumbe and drove him down myselfI made a statement at the meeting in answer to a question, and said that the DB.BIB of calculation in the circular which hsis been referred to was that 25 pounds of milk were required of 3*6 quality to make one pound of commercial butter. I answered all other questions asked for the sake of obtaining explanation upon this subject, Mr Edgecumbe being present the whole of the time. On the 10th January 1899 a letter appeared in the Waikato Argus, signed "Looker-on," (two copies of the paper put in). In my opinion there is in it distinctly a reflection on my character. I am charged with drawing a red herring across the scent. Witness was going on to say what was suggested by the letter, when Mr Campbell objected. Mr Cooper proposed to ask " What in J 'our opinion was imputed to you by the etter ?" I Mr Campbell argued that the letter Bpoke for itself, and it was not for witness to say what it imputed. He did not object to Mr Cooper asking what pun him. Mr Cooper: Very well, I will put it that way. Mr Spragg resuming said : I consider the next reflection is "Throwing dust into the eyeß of the same suppliers," and next as to making a statement that was a " Suppression of the truth which never was and never can be an honest way of dealing with any question." That was all. In my opinion the letter is distinctly calculated to injure me in my business, because some people believed that I had been treating them dishonestly. Since the letter there has been an alteration in my business to my detriment. In two or more of the districts an opposition business has been set up. I ascribe the falling off in my business to the letter and similar statements. 1 am referring to verbal statements based on that letter. On January 13th I sent . through my solicitor, Mr Hanna, a letter to Mr Edgecumbe (copy put in). Mr Edgecumbe replied by a letter of January 19th (copy put in). I issued the writ in this case on February Ist, 1899. I called in Mr Holmes to examine my books. He had full access to all my books, which have been properly und accurately kept. To Mr Campbell: 1 probably sent a copy of my circular to the editor of the Waikato Aeous. 1 sent it for hiß information and intended he should use it as he thought fit. In my circular I refer to a communication from a Waikato supplier. ][ have the letter here. I do not know if a letter from me was published in the New Zealand Herald on November 2nd. (Herald produced and witness admitted that the marked article was a statement of his Bide of the case). The marked paiagraph in the Herald of November Ist contains the milk tests made by Messrs Pond and Maclaurin, referred to in my remarks. (Herald put in) I wrote a letter to the New Zealand Dairyman, which was published in December, 1898, in No. 3 ; it was in answer to au article that appeared in No. 2 of the Dairyman, November, 1898. (Dairyman put in). My letter in No. 3 was followed by remarks by the Editor, and these rtmatks, with a further letter, I sent to the Argus for publication. (Put in and read, dated December 29th, 1898). It was subsequent to the letter that the alleged libel upon, which 1 am suing, was published. In my letter of December 9th, I did mot raise the issue whether or not. 1 had mifquoted an author. The letter of " Looker-on " has, in the sentence, beginning " his offer," references to the letter of mine in the Argus of date, December 29th. The body of the letter has reference to an article not yet read. It is in the No. 3 of the Dairyman, in •' Current Comments," page 20. (Put in and read). The " main issue " referred to was that I had falsely stated the amount of butter received. There is an " over-run " in butter-making. The " over-run," as you call it, is salt curd and water. The " over-run" is probably 16 per cent. That is to say, in every 1001 b. of commercial butter, there is not more than 84 to 85 pei cent of butter fat; the rest beiDg salt, curd and water. I was to pay for the milk in proportion to its richness in butter fat according to the Babcock test. The article in the Herald of November Ist 1898 raises the question of jUjjtod's test against the Dairy Associathe subsequent correspondence appeared It is true that I have the over-run of 10 to 16 per cent above the butter fat paid for. My circular states the full amount of commercial butter derived from the butter fat obtained from all the milk supplied to me, roughly. I do not say that I paid for 1,415 lb more butter fat than I made of commercial butter. I gave as much direct information in the circular as was needed. I did not make any attempt to explain that I got 10 to 16 per cent more butter than butter fat; it is a well-known fact. It was not fair to say >,that was a Fiipprcssion. The circular was addressed to people who understood the matter. There was an invitation in the circulars to the suppliers to examine my books. I might have said that there was an over-run of from 10 to 16 per cent but it was not needed. I did not object to the " Dairyman " saying there was un over-run. I objected to the manner in which it was stated there. I

did not make tlie abatement ou the circulars as to the over-run Lecauso I was carrying on the business in my own way. To the Beuch : I have 29 factories and cicnineriea. There are about 700 nil k suppliers. The circular was sent to suppliers in all the districts in which we operate. Anyone was at liberty to inspect my books, but I specially invited them to send three delegates. The publication of the comparative tests made by Mr Pond and the Daiiy Association did, I understand, create a great deal of feeling throughout the Waikato. I don't know what influence the publication of the fact that I had an over-run of from 10 to 16 per cent, had on the suppliers, but I presume it must have created excitement from what followed. There had been a discussion about the reading of the Bahcock tester. The testers we use are the Lister Bahcock and the Russian Babcock. I have never seen the pamphlet produced, headed " Directions for operating the patent Lister Babcock oream, new atd separated milk tester." The document produced is a letter from me to the creamery managers, dated October 22nd, 1897. (Letter put in and read). I am not aware that the insti notions issued with the Lister Babcock tester are to measure the extreme limit of the fat column. It would make a difference in the length of the fat column if you measured from the extreme top of the column and if you allowed for the hollow at the top. The more butter-fat there is in the milk the higher will be the column iu the tester. If you do not measure the whole column you do not pay for as much fat as you get ; but we do nothing of the sort. It is not correct in using the Lister Babcock to allow for the whole of the hollow in the top of the column caused by capillary attraction. It is correct to make an allowance for the proportion of the hollow. Mr Campbell: When you wrote to your managers " are you careful to allow for the hollow in the top of the fat," did you eTpect them to allow for it. Mr Spragg : I expect them to take this circular and follow its instructions generally. I expected them to make some allowance. There is also in the circular a paragraph where they are tnld to act with " strict impartiality between the suppliers and oureelves." Wesley Spragg, re-examined : On page 16, No. 3 of the Dairyman, the quotations made by me from Ollivier's work aro quite correct. That book of Olliver's is called. ''Milk, cheese, aud butter,' and it is a bcok of authority. The quotation from Lister's table is absolutely correct, until the word " over-run" was used iu the Dairyman's articles I had not heard it used iu connection with the trade. The presence of water, salt, and curd in butter was a fact well known to everyone. Then it follows that in calculating lib of butter from 251 b of milk that Bait etc. i« accounted for. In calculating I took the minimum of 10 per cent, which was against me. I ascribe the feeling which I said was caused by the publication of the references to the " over-ruu," to the fact that it was a new word, I do not test the milk or see it tested myself. To the Court: The opposition business was formed after the letter appeared. James Shiner Bond deposed : I am the printer and publisher of the Waikato Times. I was present at a meeting called by Mr Spragg at Hamilton last November to consider the matters in dispute between Mr Spragg and the milk suppliers. Capt. Runciman asked some questions as to testing and " over-run," and Mr Spragg s?id that out of 251 bof 3 6 quality milk they expected to make lib of commercial butter ; the commercial butter consisted of butter-fat, salt, curd and water. The whole of the information bearing on the matter could be seen on inspection of hi 3 books by any supplier or committee calling at Mi Spragg's office. To Mr Campbell: The questions were being asked to elicit information I presume. The replies of Mr Spragg seemed to give satisfaction to the meeting. To the best of my recollection Capt. Kunciman asked what about the " over-run," and in answer to this Mr Spragg gave the, information about the salt, water, aud other things in the butter. There was something said about the reading of the Babcock tester. I think Capt. Runciman raised that question also. There was a discussion about Mr Spragg's reading of the Babcock tester. John Mandeno, farmer, residing at Te Awamutu, said : I was and am a subscriber to the Waikato Argus. I received an issue of January 10th, and I read the letter signed by " Looker-on." Mr Cooper proposed to ask " What did you understand by. that?" Mr Campbell objected and contended that witnesses could not give their impressions unless in certain circumstances. His Honor said he should admit the question, but would note the objection. Witness resuming : 1 knew there hail been a controversy between Mr Spragg and the suppliers, and knowing that I understood that the writer intended to convey that Mr Spragg was suppressing the truth. The effect on my mind was nil, because I did not think it worth notice. By the expression " throwing duet in the eyes," I understood " trying to mislead." W. R. Holmes, public accountant, said : I made a careful examination of the milk and butter returns of the Association for last season. That is including the testing records as well. So far as I could see those books were accurately kept. I found that the total quantity of 3'6 milk purchased was 38,049,490 lb, on the basis of lib of butter (commercial) to 2olb of 3 - 6 milk that should have given 1,521,979 lb of commercial butter. From the records and books the actual amount produced was 1,520,564 lb, showing a shortage of 1415 lb. The circulars issued on Oetober 13, I have seen. The statements in it agree with the books within a few pounds. Cross-examined by Mr Campbell : I don't say that there is anything on the fare of the circular to 3how how it is worked out. There was a very much larger quantity of commercial butter made than there was butter fat. I made a calculation showing how the figures, 3"595l (the averse per centage of the milk) shown in the circular are arrived at. William N. Sturgess, of Ohaupo, stated : lam a farmer, and milk upwards of 50 cows. I have been one of the milk suppliers to the Dairy Association. I read the letter of " Looker-on," at the time it was published. I understood it to apply to Mr Spragg in connection with the milk supply. From the paragraph quoted, I drew the conclusion that if these allegations were true, I could have no faith in further dealings with Mr Spragg. To Mr Campbell : The allegations I mean aro " it is quite amusing to see the politic way in which Mr Spragg draws the red-herring across the scent, thus avoiding the main issues of whether he had been doing the suppliers justice by his reading or misreading of the Babcock tester, and of the now-plaialy-to-be seen fact that he has also been throwing dust in the eyes of the milk suppliers. It did not strike me that the offer of the £SOO was the " red herring." George Rigg, said : I am a farmer, residing at Te T'uhi, near Te Awamutu. By the portion of the letter commencing. " It is quite amusing" and euding '■ dishonest way," I understood that Mr Spragg had been misleading the suppliers. Mot being a supplier myself, perhaps I did not take so much interest as they did. It seemed to me that Mr Spragg bad not been paying them full value or something of that description. To Mr Campbell : I know there was a a controversy before " Looker-on's " letter appeared.

W C. Castleton, j*urna ist, of Hamilton, depose* : The portion o f the lc ter referred to I regarded as a reflection on Mr Spragg and a si-rioua allegation nginst him—-an allegation of dishonesty. My opinion was that if i-'. were true he hid been wilfu ly misleading and deceiving the milk supp u-ra, and that the statement would be calculated to do Mr Spragy a lot of harm. This closed the plaintiff's case. His Honor, at this stage, asked if it were not possible f(,r the parties to arrive at a settlement. Counsel knew h's feeling in matteis of this sort. Mr Cooper said he was quite prepared to meet his friend in cousulta'ioti, and was prepared to take a verdict for merely nominal damages. Mr Campbell said lip preferred he should open his ea«e to the jury and place his side of the matter before the Court. In opening the case for the defcnd:n\ Mr Campbell said : It is the province of the jury to determine whether the wottls are a libel or not. The:e is a great distinction between words which attack a man in his personal character or business and such a letter as this which simply discusses the manner in which Mr Spragj; had conducted the discu sion. A maiu issue had been raised, viz , whether Mr Spragg had correctly read the Babcock tester. Mr Spragg had commenced the discussion on this question himself ; but, instead of dealing with the matter fairly, he had raised false issues, and so stated the facts as to mislead. The letter simply drew attention to the improper manner Mr Spragg had dealt with the discussion and was a truthful and fair criticism. William Noith deposed: I was a milk supplier of the Association. I have not received a copy of the circular dated October 13th. Reading the circular I should take the word " butter "to mean commercial butter, not butter-fat. To Mr Cooper : I take it to mean that on the season's working Mr Spragg had 14151 b less butter than he should have had. There are two ways of looking at "Looker-on's" letter, one from a milk supplier's and one from an outsider'* point of view. As a milk supplier I was expecting something of the ioit, as I was one of the suppliers whose milk was sent to Mr Pond to test. As an outsider I should have said it was rather a strong letter. I don't think it charges Mr Spragg with deception in h's business. I think the letter was written as an impetus to suppliers to keep up the agitation till the tests by Pond were decided. By the expression " Throwing dust iu the eyes " I understood we were not to be satisfied till we got the test. The £SOO was, I think, alluded to. It might be that the tests had not been regular. Since that letter appeared I have severed my relations with Mr Spragg. To Mr Campbell: It was not in consequence of the letter. One of the reasons, and in fact the chief, was the discrepancy between Spragg's and Pond's tests

Mr Holmes, rc-called: I produce a calculation showing how the uverage percentage of 3"5951 was arrived at. Mr Campbell then addressed on behalf of the defendant. 1 here had been a long discussion iu the papers as to the correctness of the plaintiffs reading of the Babcock tester. The discussion the plaintiff had himself commenced, and the matter was one of public interest to the people of the Waikato. Uuder such circumstances the defendant was entitled to a qualified privilege and to discuss the matter fully and freely, and so long as his opinions were stated bona fide and without sinister or malicious motives he was within his privilege and the words were no libel. He then examined and analysed the alleged libel to show that so much of the letter as alleged facts was true and the criticisms were fair and not exceeding the bounds of fair criticism. The letter read iu conjunction with the surrounding circumstances was a proper contribution to a public discussion and no libel. Mr Cooper replied on behalf of the plaintiff. He quoted authorities to show that the matter was not one of public interest and the defendant had not the qualified privilege claimed. The Bench however, ruled that the matter was one of great importance to a large number of people in the Waikato, and therefore of public iuterest. Continuing, counsel argued that the alleged libel was not fair comment but a direct attack on the plaintiff in his business. The letter accused the plaintiff of perversion of the truth aud trickery, and surely that was a gross libel. After analysing the letter with a view to show that it made serious arcueations against the plaintiff, he concluded by saying the letter far exceeded fair comment, and therefore as a matter of law the plaintiff was entitled to damages. In summing up, the Judge said the first question was for him to decide whether the letter was capable of being a libel. He was of opinion that it was. ] It was, however, for the jury to decide whether the words were a libel. He also ruled that the matter was one of public interest. The law on the matter had been fairly laid down by Mr Campbell, and the question for them to decide was whether the letter exceeded fair and bona fide comment. If so, it was a libel, aud they must fiud for the plaintiff. The jury were not bound by his opinion on this question ; but he would give them his own views on this matter. His Honor then proceeded to criticise the various passages in the letter p.nd then proceeded as follows :—I think it is a great pity this action was ever brought.—The plaintiffs eolici tor wrote to the defendant a letter demanding:—lst: The name of the writer of the letter ; 2nd. An apology to be drawn by himself and published by the defendant ; 3rd, £5 53 costs; 4th, £25 to be paid to the Hamilten Hospital ; sth, a reply within seven days. That letter was BU'ih as practically to make it impossible for the defendant to comply with it. The jury then retired at 4.30 p.m. On resumiug after the midday adjournment one juryman had failed to answer to his name, and by consent of the parties the case was thereafter heard and decided by the rcmainiug threo. The jury not having returned at f p.m. His Honor sent for them, and having ascertained that they were not agreed ordered refreshments for them, and stated he would not take their verdict till 7 p.m. At the latter hour the jury were still not able to agree and again retired. At five minutes past eight His Honor once more sent for the jury, and in answer to the usual challenge said they found for the defendant. Mr Campbell then applied tor judgment accordingly, and His Honor gave judgment for the defendant with costs on the lowest scalo, and also certified for costs for an extra day. Unequalled aud Invincible Woods' Great Peppermint Cure for Coughs and Colds. Is 6d.