R.M. COURT, ALEXANDRA.

Waikato Times, Volume XXI, Issue 1742, 4 September 1883, Page 3

R.M. COURT, ALEXANDRA.

FRißAX^Oef^o Mr H. W. Northcroft, R.M.) HIGOINkON vfMtttAK.— Mr Gresiiani for plaiutiff/rMtfvDyer for defendant. The fouotorig ;» the judgment delivered by hi^mrShi^:— The plaintiff sues defen-daut-for the-siiin of £6 damages, caused, X)]{fnhiffh]hglil, by defendant having sold nvitt tli Aefbounds of rape instead of three poan"dS )t orglolfo turnip seed. It appears on or About 'the' 9th of ' January last, plaintiff went to defendant and asked for tWo pounds of white stone, and three pbtfnds of globe turnip aeed, trusting to defendant to give him the proper article. Plaintiff not knowing rape fiom turnip sfied took it home, and when he opened the bag to sow the seed he found with eafch*pa'rcel of seed a piece of paper with "iWhite Stone Turnip" and "Globe "•TuAip" written respectively thereon -handwriting. He sowed both 'parcels of seed, the white stone on one acre, which came up all right and was a eood crop, and tho globe on two acres; unt instead of globe turnip, rape came np, which was a loss of over £6 to liihi.' This statement is borne out by thveft witnesses, so far as the articles and trfiT relative value of the two crops are concerned, and materially by the only witness called by the defence, for if Ins figures- are taken, it will be seen his estimate as to the difference between the two crpps is, similar to Mr Goodfcllow's, i.e., ' # Kape'lss per acre, turnips other bhati aweedes thice or four times as much,", and he goes on to state, "My ettimate> is for grazing purposes." Mr Goodfellow says, "1 estimate rape at Ids per acre, turnips other than sweedes four times as much, but if pulled and fed to the cattle, as plaintiff says he does, considerably more. I think plaintiff's claim very moderate." It appears from the evidence there is no defubt the seed defendant sold to plaintiff for globe turnip was rape. It is argued by the learned counsel for the dofence, that supposing the seed was rape tb&y "" are not liable, as tho rule Caveat Emptor applies. I do not think so. Bel', Judge, in Eichholz v. Banister said : " Lord Campbell was right when he said the exceptions to the application of- Caveat JSmpfor had well nigh eaten up the. .rule." No special form of words is necessary to create a warranty, and it was ''laid down by Lord Holt, in Cross v. Gardiner, and followed by Buller, Judge, in the famous leading case of Pasley v. Freeman, where he said, " It was rightly held by Holt, Chief Justice, and has been uniformly adopted ever since, that an animation at the time of a sale is a warranty, provided it appeals to have been bo intended." In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer was ignorant. In general, ou a sale of goods by a particular description, it is an implied term ofJ^e contract that they shall answer ture description. In Wieler v. Shillizzi, V sale was of "Calcutta linseed," and the article contained an admixture of 13 per cent, of mustaid, but it came from Calcutta, anil there was a conflict of testimony, it was left to the jury to say whether the article had lost "its descriptive character," so as not to be saleable as Calcutta linseed. Tho juiy so found, and the purchaser succeeded in his action. In Allan r- Lake, it was held that a sale of turnip seed as " Skirving's swedes was not a sale with warranty of quality, but with a description of the article, and that the contract was not satisfied by the tonder of any other seed than " Skirving's swedes." It is urged in defence that if anything isrecovciable it can only bo the difference of price between the article actually delivered, and that which ought to have been. That I think is not so. In Randal v. Rapcr, the plaintiffs had bought bailey from defendants as "Chevalier" seed bailey, and in their trade as corn factors, re -sold it with a warranty it was such seed barley. The sub-vendors sowed the seed, and the produce was barley of a difiV'ient and inferior kind, whereupon they made claim upon the plaintiffs for compensation, which the plaintiffs agreed to satisfy, but no particular sum was fixed, and nothing had yet been paid by the plaintiffs. The diffciencß in the \alue of the bailey sold by the defendants, and the barley as described, was £15, but the plaintiff's recovered £271 7s 6d, the excess being for such damages the plaintiffs were deemed by the jury liable to pay to their sub-vendors. All the judges of tho Queen's Bench held the damages to the sub-vendors to be a necessary and immediate consequence of the defendant's breach of contract, and properly recoverable. I am therefore of opiuion the plaintiff can recover the full amount claimed, with costs £3 4s. Several cases for recovery of rites were disposed of. In the case Aubin v. "Walker (Mr Gresham for plaintill) judgment was given for costs 13s Gil.