South Australian Advertiser (Adelaide, SA : 1858 - 1889), Friday 8 April 1864, page 3


LOCAL COURT—ADELAIDE.

THURSDAY, APRIL 7. [Before Messrs. J.W. Macdonald, S.M., E. Stirling. J.P., FULL JURISDICTION (CIVIL.) DEFENDED CAUSES.

HILL V. CORIN.-Mr. Ingleby appeared for the plaintiff and Mr. Bruce for the defendant This was a claim for £71 15s., balance of money alleged to be due for a building erected at Fullarton by the plaintiff for

the defendant. It appeared that the original price agreed upon for the building was £190; that £11 15s. was added to this for extras, making a total, of £201 15s. From this was deducted £130, for which credit had been given, thus reducing the amount to the earn claimed. A set off of £17 12s 6d. was pleaded and proved, the sum of £20 it was shown and admitted was not yet due. The sum of £11 7s. 6d. was paid into Court, .and £3 was allowed for defective workmanship. These amounts reduced the sum claimed to £8, for which the Court gave judgment TRUSTEE OF BEAN v. KEYLEY.—This was an action for £1 16s, rent due, and for an order to recover the tenement occupied by the defendant. The Court ordered the rent to be paid, and told Keyley he most turn out of the house before 12 o'clock on Monday next. (Before Messrs. J. W. Macdonald, S.M., Neales, and A. Scott, J.P.'s) PEACOCK & SON v. JENKINS.—Action for £50, for deceit alleged to be exercised in the sale of 21 bales of wool by the defendant to the plaintiffs, commission agents. The Attorney-General appeared for the plaintiffs, and Mr. Ingleby for the defendant. The Attorney-General in opening the case sald he sued on the question of deceit, and not on that of warranty. Having described the facts of the case, he called the following evidence: — Joseph Peacock said—l am one of the plaintiffs in this action. On the 5th February the defendant met me under the Exchange and asked if I was a purchaser of wool. I said yes, and be asked me to come with him. I got into a trap with him. and he took me with him to the back of the Freemason's Tavern, where I saw two drays containing 20 or 21 bales of wool. I took out a handful here and there, which is the ordinary usage of sampling adopted by the trade. We talked about the price, and I made an offer for the wool. Mr. Jenkins said he would submit the price to his principal and let me know. Did not see Mr. Jenkins again till I returned to my office in the afternoon, when the wool was standing in my yard. The next day Mr. Jenkins brought down due account, which being examined in the usual way I gave him a cheque for the amount—£306 1s. 6d. Mr. Jenkins checked the weights in the afternoon by our scales; the wool was unloaded in his presence. The bales were marked on the end "A. McD." Mr. Jenkins showed me an invoice. During the time the wool was being weighed Mr Jenkins was asked to whom it belonged, and he said in a joking way "Oh. say it belongs to Archibald McDonald." Inferred from that that I had no business to enquire. The day after the wool was settled for my attention was called to the remarkable patches which were on some of the bales. I had two or three of these patches ripped off, and I found these patches had been placed on to conceal various different brands to that on the outside. I did not ship the wool as I received it, which is our usual custom with washed wool, but I sent it to my yard in Hindmarsh and had it all unpacked. I saw it there. My attention was called to the disgraceful way in which the wool was packed I then thought it necessary to stop my men from doing anything more to the wool, and rode to town to see Mr. Jenkins. On February 11 I wrote to Mr. Jenkins asking him for the name of his principal or I should take proceedings against him. I saw Mr. Jenkins after that, and he said be would let me know during the course of the day. On the following day Mr Jenkins called and left a message with his brother Henry, and said his principal refused to give up his name, but that if I particularly objected to the bale of greasy wool he would take it back. I then thought it necessary to have some one to see the wool, and accordingly took Mr Glyde to Hindmarsh to make a survey of it. The result of the survey was so bad that I wrote a letter to Mr. Jenkins, saying that unless he gave up the name of the principal and made compensation I should submit the matter to our solicitors. I did not ask Mr. Jenkins to be present at the survey. If the wool bad been sent to London the purchasers there would have refused to have taken it; it would then be thrown back upon our hands. The difference in the price would be at least 2d per lb. Clean pieces ot wool were packed outside the bales of washed wool, the part of the bales where 1 got the sample, and the centre was filled with inferior washed and greasy wool. The bale of greasy wool consisted of fleeces tied up in the usual way. On unrolling them we found the centre of each fleece was filled up with four or five lbs. of rubbishy locks. The bale of locks we don't complain of, as we expect rubbish when we buy locks. By Mr. ingleby I had full opportunity of sampling the wool in the usual way; but I could not cut a bale in two in the street. I had an opportunity of sampling from any part of any bale I liked. Mr. Jenkins did not dissuade me from exercising my own judgment to the fullest extent. All that took place was, that he showed me some wool; I sampled it, offered a price, and he took it. No part of the wool of any of the bales was valueless. The dirt was valueess. In my judgment I gave the full market value of the wool. I gave 14d. for the washed wool, 9d. for the greasy, and 7d. for the locks. A portion of tbe so-called washed wool was not washed, and a portion was badly washed. About four fleeces in the bale were not washed. A bale contained from 40 to 50 fleeces. I consider about 10 fleeces to the bale were badly washed. The unwashed wool would be worth 9d. instead of 14d., which I gave for it. During the course of the delivery Mr. Jenkins was asked, but declined to say where the wool came from. Geo. Burnall, foreman to Messrs. Peecock & Son, at Hindmarsh, gave similar evidence as to the peculiarity of the wool, and the suspicious-looking patches upon the bales. Under the patches the brand " Clanalpine " in a semicircle, with a number in the centre, occurred very frequently, but there were other brands. About half of the bale of greasy wool was composed of locks. Believed the washed and greasy wool were grown on different runs. Had been a fellmonger for the past 14 or 15 years, and before that had served his time in Bradford as a wool stapler. Believed 2d. per Ib. too much bad been paid for the wool. The wool had been re-packed. There was a great deal of dustings mixed with the wool. By Mr. Ingleby.—Sixteen out of the 21 bales were opened. Did not open the rest because Mr. Peacock told us to stop when he discovered what the wool was like. For all he knew the other five might be quite right or worse. Tbe difference between greasy wool and locks is, t hat greasy wool is understood to be fleeces, while locks are the refuse swept up from the floor after the fleeces have been taken away. All the wool was equally bad. Tbe plan pursued in Bradford in buying wool, was to cut the bale nearest to you and pull out a sample. The custom was, not to open all the wool upon a floor. J Barrons, woolsorter, for 10 years in Bradford and 12 years in this colony, stated that he was in the employ of Messrs. Peacock & Son. He confirmed the evidence as to the way in which the wool was packed, its bad quality, and the admixtures of different class wools in the same bale. The wool bad evidently been repacked. Lavington Glyde stated that be had served his apprenticeship to a worsted spinner, and had had great experience in the wool trade. The way described by Mr. Peacock, of sampling wool was according to the usage of the wool trade here. Went on the 12th of February to Hindmarsh, to examine the wool there. Saw witness Burnell there, and Mr. Peacock was with him. Saw a greasy bale of wool marked "A. McD., No. 21" The concealed mark was ** DXN in a triangle, No. 13." Then saw three or four so-called washed wool, which were opened in his presence. They were also marked "A- McD ;" the concealed mark when exposed on two of them was "Coonalpyn ;" the third one showed that the mark had been cut out altogether, as there was a hole of about 10 inches square. Saw about half a dozen fleeces of the bale of greasy wool unrolled, and they contained each of them about 2lbs. of locks of a different class of wool. The greasy wool came he should judge from the Burra, and the locks, which were worth half the price of the wool, cam, he should think from Lacepede Bay way. Should consider the bale through was worth 2d. per Ib. less than the price paid for it. In the three or four bales of so called washed wool he saw three or four greasy fleeces that had never been through the water at all. There were also seven or eight fleeces of very inferior quality that had been very badly washed. If he had bought the wool should have expected to make £1 per bale profit of it if it had been according to sample, but if he had bought the wool that he saw at Hindmarsh he should expect to make a loss of £1 per bale. Considered Mr. Peacock was entitled to £1 per bale for sorting and repacking, and that it was fair to suppose there were 30lbs. of heavy badly washed wool in each bale at 2d. per lb., £4 15s. Then heconsidered it was reasonable to say there were 15lbs. of greasy wool in each bale at 9d. per lb., making a difference of 5d. per lb., which would make £5 18s. 9d. a bale. And then be put the loss on the bale of greasy wool at £2 2s.. the total amount being £31 15s. 9d, By Mr. Ingleby—Considered the greasy locks worth only 4½. per lb. The custom of buying wool at London was that a little hole was cut in each bale, from which the intending purchasers were allowed to put in their hands and draw out samples as long as they liked. If the wool purchased did not turn out according to the sample the purchaser was at liberty to reject it. He could call in two persons in the trade who would give a certificate that the wool was not according to sample, and the broker in London would at once take back the wool. Henry Peacock corroborated the evidence already detailed, and said in addition that Mr. Jenkins offered to take back the bale of greasy wool if they liked at the same price as they had paid for it. Mr. Ingleby applied for a nonsuit on two grounds—first, because it had not been proved that the wool seen at Hindmarsh was the same as that delivered by Mr. Jenkins to Messrs. Peacock &Son; and secondly, because it had not been shown that Mr. Jenkins had deceived Mr. Peacock. He referred to the cases of Cornfoot v. Foot and Longmead v. Halliday to show that unless the intention to deceive was proved an action of this kind could not lie. His learned friend ought to have gone upon the question of warranty; the account showing Jenkins had sold "19 bales of washed wool' ;proved the warranty; and if his friend had gone upon that and shown that the wool was not washed, or had been badly washed, he would then have bad some ground for damages. But instead of doing that his friend had introduced the action for deceit, thinking he would get different damages than he would under the warranty. He maintained that unless a false representation on tbe part of Jenkins was proved there must be a nonsuit. That there was no deceitful representation was shown by bid client's allowing Mr. Peacock to crack and try before he bought—to sample the wool—to offer a price, which after submitting to his principal was accepted. There was no attempt to persuade Mr. Peacock to purchase the wool against his judgment; he had full opportunity of testing it, and no deception whatever was exercised. He urged, therefore, that there should be a nonsuit. The Attorney-General replied, and referred to the case of Taylor v. Ashton to show that it was necessary to prove that "if a party makes an untrue representation to another for a fraudulent purpose, with the intent to induce the latter to do an act which he afterwards does to his prejudice, an action on the case for deceit lies, and it is not necessary to show also that the defendant knew the representation to be untrue." He further argued that Mr. Jenkins's actions showed that he was aware that something was wrong respecting the wool, because be offered to take back tbe bale of greasy wool, and because he refused to give of the name of his principal. Mr. Ingleby having made some remarks in reply. His Honor said the Court must decline to grant a nonsuit because by refusing to disclose the name of his principal Mr. Jenkins had adopted the acts of the principal. Mr Ingleby asked that the Court's decision should be written down, and said he should not call any evidence. The Attorney-General then addressed the Court as to damages, and argued that £50 was not excessive. Mr Ingleby contended the damages should not be fixed according to the fanciful estimate of Mr. Glyde, but according to the evidence given as to the quantities that were not equal to sample. The Court gave judgment for £37 15s. 9d. Mr Ingleby asked the Court to permit him to apply to the Supreme Court without entering security. His Honor said the Court would stay proceedings in the matter. WHITINGTON v. TAYLOR.—Action for £64, principal and interest due on a bill of exchange. The Attorney-General attended on behalf of the plaintiff, and Mr. Mann for the defendant It appeared that the bill was originally for £57 10s., and that the £6 10s. was added for interest. The claim was for work executed by Mr. Whitington as accountant, alleged by him to be done before and after Mr. Taylor's insolvency. Evidence for the defence showed that Mr. Taylor signed the bill under a threat while he was in gaol, and that the work in question was executed before the insolvency of the defendant. The Court felt satisfied that the work was done before the

insolvency, but granted a nonsuit, in order to enable the defendant to sue for any small sums for work which had been done since the insolvency of Taylor. The Court sat till 6 o'clock.