District Court

Thursday, November 12. (Before His Honor Judge Kettle.)

Chew Chong v. Buchanan. Continued.

Mr Caplen for plaintiff; Mr Barton for defendant.

This was a case in which plaintiff, a dairy factory proprietor, sued the defendant, a farmer and supplier of milk, for damages for alleged breach of agreement.

It was set out that by agreement dated 18th October, 1893, defendant bound himself to supply plaintiff with the whole of the milk from the defendant's cows (20) for three years (from October 1893), at stated quality and price (3d per gallon). Defendant in breach of the agreement did not from tne Ist of September, 1895, to Ist September, 1896, supply or offer to snpply milk to the factory in terms of the said agreement or at all. The amount which ought to have been supplied in that time was 22,057. gallons. The plaintiff being unable to make up the amount that had been agreed to be supplied by defendant, the former alleges he lost the profits he otherwise would have made on 92641bs of butter, at the rate of 2 3/8 d per lb (£91 13s 6d), which sum he claimed, or as in alternative a similar sum as general damages. The statement of the defence admitted not delivering milk between June 1895 and September, 1896 and set out that the agreement was not signed by plaintiff, and that in September, 1895, and that before breach, defendant was exonerated by plaintiff by verbal agreement.

Admittedly, the whole question rested on the point whether defendant was as alleged exonerated from continuing to supply milk.

Mr Barton opened the case for defence. In the evidence he purposed calling he would not only show that the agreement had been rescinded, but absolute refusal of plaintiff to perform the contract was the cause of abandonment of the contract.

The defendant, John Buchanan, was them examined I began to supply milk to plaintiff in January, 1894, and entered into agreement as to supply. At a meeting of suppliers in April, 1895, plaintiff asked them whether they would take a reduction of 1/4 d a gallon, and as an outcome the meeting resolved to accept the reduction. Gebbie and I, however, moved an amendment that the terms of the original agreement should be adhered to. At the meeting Mr Chong appeared annoyed about a collect telegram I had sent him, and said he would not have had it happen for £50, and that he would not take any more of my milk, to which I was agreeable. Did not have any conversation with Turner as to release. While the meeting was on Mr Gebbie asked a question as to the cows that were guaranteed, and plaintiff said he would have to take those at the price agreed upon. I then asked what about the cows Mr Curtis had guaranteed, to which plaintiff replied, "I have no agreement with you, this was a matter between Mr Curtis and I. I continued to supply milk to end of May and then ceased, and had no inquiry from plaintiff from that date, until made aware of legal proceedings against me. Next season I supplied the Loan and Mercantile, entering into an agreement to supply milk there. At the meeting plaintiff said he had lost £9OO by butter that Season. During my agreement with the Loan and Mercantile the market was still low. My reason for going to the latter was that plaintiff refused on several occasions to take my milk. In Hawera, Mr Gebbie had asked for a written release for his cows which plaintiff refused. I had also asked, to which plaintiff' replied, "I will not take your milk at all." In consequence I had to take my milk elsewhere.

By His Honor Why did you not keep Mr Chong to the 3d contract I do not know why. He refused to take the milk and I accepted this as final.

Continuing, witness said it was after that that he entered into another contract for his milk. There would have been no difficulty on plaintiff's part to obtain plenty of milk at 3d or a less figure.

Cross-examined Did not use insulting language to plaintiff. The reason I did not stop immediately after the meeting in May was that I wanted to complete the month I swear Chew Chong made a statement that he would not take Buchanan's milk at all." Did not say Iwould make plaintiff take it. Was not aware that before agreement with Loan and Mercantile Co. butter had gone up in price. It was not a fact that, thinking I could not make plaintiff take more than amount guaranteed, I sent the whole to the Loan and Mercantile in preference to getting another horse and cart. Beceived a letter from Mr Caplen, and in reply said I considered Mr Chong had no claim on me. Would swear I did not leave plaintiff in anticipation of higher price from the Loan and Mercantile.

H. Buchanan, brother of defendant, detailed conversation as to future supply of milk at the meeting of milk suppliers. Turner intimated to him that it would be useless to bring any more milk next season (1896) as Mr Chong would not take it. The reason was because of the telegram sent. Ceased delivering milk at end of May. Afterwards saw plaintiff in Hawera. Witness then derailed conversation mentioned in defendant's evidence as to release from contract From June, 1895, to September, 1896, plaintiff could have easily made the quantity up at less than 3d, Cross-examined There was no difficulty in getting milk on 10th September, 1895, at 3d. The reason he asked for release was that plaintiff having refused to take his milk he wanted to be free to supply elsewhere.

W. Goodland, one of the signatories of the amended agreement. Under the agreement he was not compelled to keep more than 30 cows. Remembered tho meeting of suppliers at which reduction to 2fd was declared carried, and after Buchanan and Gebbie objected to reduction Chew Chong said he did not want Buchanan's milk, and he would not take it if he brought it. Buchanan answered: "I think it rests with me whether he wants it- or not." Chew Chong said "It rests with me," and mentioned the telegram as impertinent, and that he would not have had it for £50. Witness had offered plaintiff milk above his quantity at 2|d and was refused, and a good many more amongst the suppliers would have been glad to make up the amount of Buchanan's deficit. Did not think what plaintiff said was sufficient discharge to Buchanan, and advised them to take the milk and allow Chew Chong to refuse it if he wanted. He took it that Chong refused to take any milk at all for the coming season. Defendant had often spoken to him of plaintiff's refusal to take his milk.

Percy Thomas, of Te Koti, at one time in business with plaintiff, corroborated evidence of former witnesses as to plaintiff's refusal to take defendant's milk, and defendant's statement as to conversation with regard to Curtis supplying milk. Thought plaintiff would have had no difficulty in making up defendant's milk at 3d. Would have been prepared himself to supply milk to plaintiff up to September, 1895.

William Broderick, Te Koti, a supplier to plaintiff in 1894-95 season. Would have continued supply but for plaintiff offering only 2M had he been offered 2f he would have continued.

J. Barrow, another supplier under the agreement, said he would have been prepared to stock up and supply milk of an extra 20 cows if he had been oirerod 3d. Had offered to keep on 20 cows of Mr Ste^Yart (who was going out), but plaintiff refused.

Theodore Foote (recalled), crossexamined by Mr Barton, gave the following

estimate of the comparative business for seasons 1894-5 and 1895-6, with profit or loss thereon For 1894-5 3,298,2461bs of milk was received at factory, for which £3810 19s lOd was paid. Of this 138,0091bs of butter were sold at 7£d gross, amounting to £4312 17s 2d, calculated at the rate of 241bs milk for each pound of butter. The working expenses brought the price down to less than 6d net a direct loss. In 1895-6 the quantity of milk received at the factory was 2,598,2571bs for which £2908 19s lOd (2£d per gallon) had been paid to suppliers of this quantity 106,6191bs of butter (at rate 251bs milk per lb butter) was made and had been sold for £3985 4s lOd. The average price realised was 9d, cost of productionwas as follows For mill? 6*54 d, and working expenses 2-18 d per lb. This was arrived- at on a basis of working expenses £1013 (including £150 for depreciation at rate of 10 per cent on £1500). On this computation the total cost of production was 8.72d which taken from the average (9d( left a profit of 28 per lb. Had never heard of any other factory except Mangitoki charging 8 per cent for interest vn outlay, and 10 per cent for maintenance.

D. C. C. Gebbie, Te Roti, one of the suppliers, gave corroborative evidence, and also W. Cleaver, recalled. This finished the evidence and the Court adjourned.

Friday, November 13.

Counsel having addressed the Court at considerable length His Honor gave judgment, in the course of which, after reviewing the facts, he said the whole evidence pointed to the conclusion that plaintiff distinctly intimated to defendent that he would not take his milk, and if he had taken it he would not receive it, therefore he thought plaintiff was not entitled to succeed. Apart from that he was satisfied from the evidence that Mr Chew Chong could have obtained milk to supply the gap if he had gone into the market and asked farmers to sell it to him at 3d, but it was quite clear that Mr Chong was not willing at tbat time to give 3d. Then again, he was satisfied, that even supposing defendant had supplied the milk plaintiff would have suffered a loss thereby, and therefore plaintiff had not been affected by the breach. On all throe points plaintiff had failed. The action seemed to be due to something underlying— some feeling plaintiff had been probably annoyed. Plaintiff would be non-suited with costs.

Chew Chong v Gebbie.

This was a similar case to the preceding, and Mr Caplen accepted a non-suit.

Hawera & Normanby Star, Volume XXXIII, Issue 3396, 13 November 1896, Page 2