At the concluding hearing, all the morning of Oct. 30 was entirely taken up with argument by counsel, Mr. Newman, commenced Mr. MeNelll, had referred to a section of the Sale of Goods Act of 1893, In which It-was laid down that: where more goods were sent by the vendor, the purchaser might return the surplus, or reject the whole contract, His Lordship:—That is, where the purchaser knows of the surplus.
Mr,, MeNelll agreed, and gave as an example a fictitious case where he ordered ten tons of hay, and the vendor sent twelve. He might say he wanted ten tons, not twelve, and that he could not separate the two extra fons; he could send the whole Jot back, or he could take the whol twelve fons, and pay for the extra two, There was never any question in that case of neither party know-4ng of the over-delivery in that case, however, as the goods were invoiced.
"Contract Under Seal"
Here, however, they were dealing with a contract under seal, and he submitted that it was his Lordship' uty to interpret that contract, which involved only one question:—Did the plaintiffs intend the whole of their goods to pass, or only those mentlon~ in a schedule? Quoting cases said that If the plaintiff contended there: was to be. a: limited reading of the contract, the burden of proof was on them, In the. contract: appeared, that phrase. all the equip. ment "whatsoever and wheresover, and by that: the. plaintifis exactly what they said.
Mr, MeNelll objected to s contention that there was a price for each article in the sale. The articles were Value, and the total" formed." the purchase price, which also included outstanding contracts and good-will. Furthermore, the agreement was that the machinery and equipment should bbe worth "at least" Tis, 68,000, falling which, the price was to be reduced {as in point of fact it was, from Tls. 125,000 to Tis, 122,00), is Lordship would recall: that' the close of plaintiff? case he had submitted that they had not submitted a prima facie case, for It wasp to the plpintifs to, prove, that their Interpretation of the contract was: the right" one; he again submitted they. had not dono so. He quoted from Ieller from the promotor of the' defendant company to the plaintiff concern, in which he said "the price 1s 0 include your undertakings and goodwill and all drilling' and other plant and machinery and vaccessorles, very description." "Inthe reply, there was no suggestion that the list (which was- eventually allached to the agreement) was notin fact, Uist of everything. Plaintits accepted the offer'and did not say they were not certain of the fist.
"Not. Our Business"
Mr, 11. D. Rodger, witness for the plaintiffs, had said that he was astonished when he learned they had over-delivered to the extent 26,000, In. 1090, however, he did think' the list was a list of every= thing: he admitted Il, and so. did everyone, "It is not our business If they' made a mistake.
His Lordship:—Both parties, T think, thought that list was a list of every: thing.
"Well then." replied Mr. MeNell, where is nothing more to say. Thal is the end of the action! That what you are trying to ast whether they intended to sell ever "Defendants were malntaint that all the properly did pass, plaintiffs, "in fact, Intended "to everything.
His Lordship:—My impression What both parties did intend everything to pass, "Everyone who gave evidence has said that, everything "was to, paso relumed Mr, McNeill, "The plaintifis Went out of- business and everyone thought everything had been sold." He.submitied that of the excess of over Tis, 26,000 which defendants had found to exist. between the actu slock they owned, and that on th books of the company, 'Tls. 3,000 ha to be deducted for goods returned stock and not entered. In. the.com~ any's books; Tis, 3,000 for worn-out, goods which' had been listed In the inventory to Inflate the value of the company's stock; and the remaining Tls. 26,000 for goods stored away. "There Is no claim!. That: is, the answer. This claim should noyer have been brought!". He asked for Judgment for the defendants, with costs,
Text read from the printed page and cleaned; old type leaves the occasional error.