Merchant McCulloch


Argus (Melbourne, Vic. : 1848 – 1957), Friday 6 June 1856, page 5

Before his Honor Mr. Justice Williams and the Jury of Twelve Special Jurors.)


The Attorney-General , Mr. Dawson, and Mr Woods for the plaintiffs. Mr. Michie and Mr Fellows for the defendants.

This case appoared to excite considerable interest in the mercantile world of Melbourne the result involves a considerable amount of money as well as points of practice in mercantile usage here. The action was brought on a breach of agreement.
The declaration stated, that on the 25th February, 1856, it was agreed between the plaintiffs and defendants that the defendants should within a reasonable time the next time following deliver to plaintiffs in Melbourne , and plaintiffs should accept from defendants, divers boxes containing tins of finest powdered butter, containing in the whole 16,224 lbs, more or less, of such butter, in good order and condition, and corresponding with a sample shown to the plaintiffs before such agreement and should pay the defendants for the same at the rate of Is. 8d. per lb. nett within three months, or in cash on delivery less discount of 2 per cent., as might be agreed upon between plaintiffs and defendants; and the plaintiffs say it was afterwards agreed between them and the defendants that the said goods should be paid for in cash, and that they did accordingly pay to the defendants £3714 being the price for all the goods which the defendants delivered to the plaintiffs at the rate aforesaid, less the discount aforesaid; and although the plaintiffs were always ready and willing to accept the said goods, and have in all respects performed attending to the said agreement, the defendants did not deliver the finest powdered butter in good order and condition, and corresponding with sample; but other butter, &c, whereby the plaintiffs lost great gains and profits, and have been put to great expense in and about storing, keeping, surveying, and carting the said goods, and in causing them to be sold; and have otherwise been greatly injured.
The defendants pleaded that the said goods and merchandise were finest powdered butter in good orde’ and condition, and corresponding with such sample as aforesaid.
The Attorney-General stated the plaintiffs’ case to the jury.

The plaintifls reside in Melbourne, are merchants, and trade under the style of Ross, Robertson, and Co. The defendants are also merchants in Melbourne,

and trade under the style of Holmes, White, and Co. On the 25th February last, plaintiffs purchased of the defendants 608 cases, agreed to be of “the finest powdered butter,” ‘ ¡¡hen tho following bouglit-note was siguiid un behalf of tho defendants ;

” Fob. 26,1851

Sold to Moiir*. Rosa, Robertson, and Co., VT. is C. 18-171,34 be\es, containing 306 tins finest powdorod

¡Hitter, each tin vvolghlng nott 10 lbs.=1890 lbs., at I Ji.8d. !

», ¡i C. 1113-1680, 67-1 hoxos, containing 511)0 Uiis,f_e<t powdorod buttor, oach tin weighing nett 81bUt),823lbs., alls.8d.

Ddroicd in town, In good ordor and condition, »»wr ample.

Tcims-tíroo months, or 2L por cont. discount

HOLM-S, Wiirra, & Co.,

Por JAS. 0. AiiPoao,

(E_tad.)~Tonns to remain an opon question, to )« decided by Mr. Holmes and Mr. Robertion.

H., W., «t Co.,

Por JAS. C. Alfolio.

At this timo tho price of the best Cork, buttor «s only Is. 6d. per Ib. Tho buttor in <V» i«6 was delivered in di fieront parcels on tho SSUi February and the 3rd March, accom«nled by the following invoice, which was selirored on the 3rd March :

Molbouruo, 3rd March, 1850. Meurs. Ross, Robertson, and Co.

Bought of Holmes, White, and Co. I Bl tases butter, each Ö this lbs.

I el 8lbi. each.41,112 I It «sei butter, each 0 tins

otl6 lbs. each .. .. 4,003

45,760 lbs,, at la. 8d.

| Pucount 2J per cont. .’¿j S 9

8,714 15 O

|Bycashonaecouut .1,603 0 0

2,211 15 O

Iho plaintiffs and defendants agreed that the terms should be cash at 2£ per cent dis Munt and accordingly the plaintiffs piid £1600 cash on the Gth March and the balanc” £2214 yvns paid on the delivery of the last traantit) on the 11th March in di» drugs of the amount The plaintifls wore not made acquainted with the condition Of flic butter until March 18th yvhen tliev dJBcoyered that tho butter yvas not goo 1 and they intimated the same to the de fwdiats Hie elelenelant Holmes wont oa (liefollowing day to the plaintiffs stoie and examine 1 the butter The result of th examination proved to the plaintiffs that the tatter iros not (,ood and they resuelto I Iclines to take it away but he declined bung anything to say in the mat lei Finding no satisfaction could be obtained from the defendants the plaintiffs gue notice ot their intention to call a suivey tipou Hi butter and thoy yvroto a lettei to ih defendants informing thom it was thou (ihintlfla ) intention to hold a hurvoy on til

d» fallowing u/ the 20th March and re ii« stcd thom to be present The defendants h tan anbiyei refusing compliance Ih httu WHS himeyed by lour respectable m r liants and pionounced unmerchunt ible A K|y of this sun ey was sent to dofeii tbts accompanied hy a letter lnformiug

that uiilebs the plaintiffs heard from 1} noon on the morroyv, tho butt r »enid be sold at defendants lisle by Mr liCombc ut his looms on Pues lay the Sth ¿lill Noicplj was received to this and the Bitter was therefore sold hy Mi M Combe

Vnnuant to notice It realised Is ljd per b or m gross £2528 From this the plim lift deducted their charges for lent, maur ta sun ey fees anil cartage £15 10s 11 Sulini; the nott produce of the sale £152 9d 8d yvhich sum deducted from, tho Wount paul bj plaintiff would shoyv a total »Bof£1232 5s 4d Tho plaintiffs claimed to hw this sum mudo good to them togothci Ni mell damages as tho jury should awaid ht Iho lo=s to thom arising out of the de

Wants having failed to deliver according to »atnet Cvidenco \y ould bo given to show Ml at this tuno butter had risen 2d oi 3d Mb iho plaintiffs coi lently loft thoir Wiiu the hands of the juij and sought only wit was fan betyvecn moichaut and met (bat
The following witnesses were called

Mr. Robertson: I am one of the plaintiffs in this action. My partner and co plaintiff is Mr. Robert Ross. On two or three occasions I saw Mr Holmes, one of the defendants about this butter. I tasted some on the 23rd February last, at the stores of Messrs. Dennistoun Brothers. The butter was very fine butter. It was nearly fresh butter. The bought-note was signed by Alford in my presence.
The Price of 1s 8d had previously been agreed with Mr. Holmes. I had seen Mr. Holmes on the 19th and 21st. Alford had previously told me that the butter was first quality, and was the same that I had seen at Dennistoun Brothers. He said it was sent by the same shipper. I afterwards saw Holmes, on the 18th or 19th. He said, speaking of the butter, it would keep three months, and that it was the finest he had ever imported. He also told me that it had cost 1s 3d per lb. at home, and that at the price of 1s 8d it would hardly pay the shipper. After I had made the offer to Holmes, he said he would go then to Geelong, and let me know. This was on the 19th or 20th. Mr. Alford came down to me on the 23rd and brought a telegraphic message from Holmes accepting my offer of 1s. 8d. per lb. The contract was drawn up on the 25th. After Holmes had accepted the offer I went to Dennistoun’s and tasted the butter. After the sale-note was signed, Alford said there were two cases at Cole’s warf which I could have directly if I liked. I went to Holmes’s counting house and I made the sale note out there. Holmes. White, and Co., have a business at Geelong and one here. When I first went to Holmes’s 

counting house, I saw Alford, the salesman. “I will write out the sale note.” During the time I was writing out the note I said “I have seen the sample at Dennistoun’s, and is yours the same butter?” We then exchanged sale notes. Alford had said he had no samples there. We merely exchanged sale notes and I came away I am quite sure that Dennistoun’s sample was mentioned. The endorsment was written at the time. The —- were settle afterwards. The only question was as to cash with a discount on the price at credit. On the 11th March the terms were arranged. £1500 was paid on the 3rd or 4th March. On the 11th, the balance was paid, £2214 15s The whole amount was £3714. I received the last parcel of butter from the 1st to the 3rd March. I had not then examined the bulk. On the

18th March, I first became acquainted with the bad quality of the butter from Buchanan, Cramer, and Wilson, to whom I had sold one case About the 20th March I saw Mr Holmes I told him that I had received notice that the butter was bad. He said that it could not be his butter that was bad and that it must be Dennistoun’s. He said he would come round and look at it, Holmes said he would bring some one round with him who was a judge. He said he wished to know about it at once, if there was anything wrong with it. That was all that passed. The butter that we had sold to Buchanan, Cramer, and Wilson was of the parcel we had bought of Holmes. Holmes called round to see the butter either that or the next day. Some one was with him and they tasted three tins of the butter. The person who accompanied Holmes acknowledged one tin was bad. 

Mr. Michie objected to this evidence. The only issue was whether the butter was equal to sample; not whether it was so good as to please the palate of the person spoken of.


The Attorney-General said it was quite regular to prove what sort of butter this was. It would be for the defendants to prove what they had pleaded, viz., that the butter delivered by them was the finest powdered butter, in good order and condition, and according to sample.”
Mr Michie contended that the description of the butter was mere surplusage. The contract was for butter as per sample. The words descnptive of the sort of butter might be unnecessary, but utile per inutile non vitiatur.
Mr Follows, on the same side submitted that they must read the traverse with reference to the contract. If the other side could prove that tho bulk delivered did not correspond with the sample, they need prove nothing more. The words finest powdered butter were the mere description of the thing und mere surplusage. The point as whether the butter was equal to sample.
His Honor would allow the evidence to be given, and make a note of the objection to it.
Witness’s examination continued I said I considered it was all bad. Mr Jamison, Messrs Westgarth. Ross and Co’s salesman was present I said to Holmes, ‘ As wt do not agree about the butter, I should like two large buyers of butter to be called in one to be named by him and one by yourself. I mentioned Mr John Connell Mr Holmes said he had no objection to Connell and on his side he should like Mr Robert Kerr. On going away, Holmes said, do not call in any one at present to examine the butter I will go and see Mr M’Culloch and let you know. Some days after this Holmes and Mr M’Culloch, and Mr M’Culloch’s salesman Mr Henderson, called and examined a large number of the tins. They acknowledged that one or two tins were inferior but would give no opinion on the butter generally Holmes said he would consult McCulloch, and let me know what further steps he would take. Holmes asked what I wanted? I said I wanted the butter taken back as it was quite unsaleable. Not hearing from Holmes I called on him and asked him what he intended to do about the butter. He said he would have nothing to say about it. He said he would not take it back. He would have nothing to do with it I said I thought it very unjust. This was about the 28th. I give them notice, and had it survej ed Tint, Is the notice I sent them (Notice of the 28th March, intimating that the survey would bo held on the 29th, read ) We got tins answer. (Answci read) –

Melbourne, 20th March

Oentlonion -Wo declino to ho present ol to bo a. pirty ti it in anj manner Tho hulk of tint wo tasted H vs full) equal to tho samplo by which v ou Íiurchised which s-unplo vi is dollvored to j on and so ong a porlod having ela] sod botvvoen tho doliv cry and your objection to It, the proceeds also hay lug bcon remlttud wo must consldor tho mattor completely Closed, and do not fool that wo liai o tho power of Opening it up

Wo are io,


We called the survey on the 29th, aud again on the 2nd April Tho suivoy was hela by Mcsrs Kerr, Robinson Connell, and M’Don noll I was present when tho survey wvs

made The tins were selected indiscrimi-nately from the bulk I sent a copy of the survey to the defendants, and a letter with it, etatmg that the butter would be sold by Mr M Combo by auction, at theil risk (The survey was here read

the document stated that the surveyois had ” opened al cases, and also from two to tout tins lu each case and found ¿hoy contained butter which waa eli esi and rancid, and the wholo more or less unsound


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