The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1840-04-03 00:00:00

)11 1,‘..

appeared to have been employed by Mr. Riley, applied to the
Messrs. Musgrove to know whether they had cotton of about
the quality they had purchased from the Messrs. Knowles
and Richards, namely, about 'ad. per lb. The plaintiffs said
that they had, that those were the samples by which they had
purchased, and that their man had been to mark them of.
Mr. Sleddon agreed to buy thirty-five bales—twenty for Mr.
Riley, and fifteen for another customer. This was on the
3d of June, 1839. The price of the purchase would have
come to £286 and a fraction. On the following day the cot-
ton was to be delivered, and the person employed by Mr. Sled-
don, together with Messrs. Musgrove's man, went to Knowles
and Richards's warehouse,. to receive the thirty-five bales
sold to Mr. Sleddon. When they got there, they found that
Knowles's man had allowed another person to take the sixty
bales which had previously been marked. Of course the plain-
tiff's man complained of this. Knowles's man acknowledged
that he bad been careless enough to permit the marked
bales to be taken away ; but he said, " Say nothing about
it, and ycu shall have the privilege of selecting from the
abundance that still remains, and of rejecting any bales you
like," and he (Mr. CreSswelf) believed that there was an ad-
vantage in taking cotton of that description. They then went
off together to Mr. Sleddon's, and there found the defend-
ant's clerk and Mr. Riley. They explained to the clerk the
state of things at Knowles's warehouse, and what had been
said by Knowles's man. Mr. Riley said, " Well, well I don't
care about it; but take care (addressing Knowles and Ri-
chards's man) that you give me no red or blue bales." The
reply was, " Your own man must take of that." Twenty
bales were accordingly picked out, and he (the learned coun-
sel) was told that in selecting those twenty, six or seven were
rejected—a very unusual proportion in picking cotton in that
manner. The cotton was forwarded to Tishwick, near Pres-
ton. Payment became due ten days afterwards, and at that
time the platntiffs received a communication from Mr. Thos.
Sleddon, to the eflect that three bales would be sent back,
because they were falsely packed. Now, he (Mr. Cresswell)
understood that though a person making a purchase from a
mixed parcel could not reject the purchase because it happened
to be a little below the sample, yet, if it were falsely packed,
he had a right to return it. If it were a fact that the bales
had been falsely packed, they must be taken back. He would
prove, however, that this was not the case. Mr. Clare, a
man conversant with the cotton trade, was fixed upon by both
parties as the person who should examine the cotton, and the
jury would see, from his evidence, whether it had been falsely
packed or not. It was then found out that the defendant
had returned, not three, but seventeen of the bales. They
were all examined, and -Mr. 'Clare said that they were not
falsely packed, and therefore there was no obligation to take
them back. Mr. Sleddon then said that if the cotton was
not falsely packed, it did not answer the sample. The plain-
tiffs replied, that it had not been bought by sample, because
the sixty bales sampled had been sold to another person,
" and the next day you sent your man to select what you
took." Mr. Clare, however, went to examine it with a view
to comparison with the sample, and he said that it was within
a very trifling degree of that which had been sampled. But,
if the three bales which were not returned were rather better
in quality than the sample, as very probably they were, a
sample taken from them, and added to that of the seventeen,
would bring the whole up to the original sample.
Israel Ilarris, (the warehouseman of Messrs. Musgrove,)
Mr. Clare, Mr. James H. Wrigley, Mr. Silas H. Prichards,
' and Mr. Isaac Bankcroft Cooke, were examined, and de-
posed to the facts opened by Mr. Cresswell. Mr. Clare
said that in his judgment the sample of the returned cotton
was about d., certainly not inferior to the original
/sample ; the bales were not falsely packed. Mr. Cooke
mentioned that he purchased a part of the parcel from
Messrs. Musgrove, for Mr. Armstrong, and he never heard
any complaint of it.
Whilst Mr. Alexander was cross-examining one of the
witnesses with respect to the custom of the trade in the
purchase of cotton from mixed parcels,
His LORDSHIP observed—l suppose it will not be con-
tended on the other (the plaintiffs') side, that if twenty bales
of cotton be bought by a sample of twenty bales, and if the
average of the bulk do not correspond with the average of
the sample of the twenty bales, that it may not be returned ?
Mr. CRESSWELL.—Of course, it may.
His LORDSHIP.—But you contend that the twenty bales
were purchased from a sample of the average of sixty bales,
and that the purchaser took the risk of getting better or
worse ?

Mr. CRESSWELL.—Undoubtedly.
Mr. ALEXANDER (with whom was Mr. TOMLINSON)
stated the case for the defendant. He began by remarking,
that if the hard rule which was said to prevail amongst the
trade in the purchase of cotton did really exist, and received
the sanction of a jury, the cotton-spinners must be consi-
dered as a race of men much to be pitied. He hoped, how-
ever, that, before the conclusion of the case, he should
advance sufficient to induce the jury to protect his client
against the operation of a rule so entirely one-sided. He
contended that the purchase had been by sample, and not
at all on terms coincident with those laid down by the bro-
kers. Mr. Riley expected to have cotton of a quality equal
to the sale sample. The cotton was ' sold on the 3rd tf
June ; on the 4th it was weighed ; and on the evening at
the sth part of it (six or seven bales) arrived in Preston,
having been carried thither by the canal. Those bales were
immediately opened, and three of them were found to be
extremely defective. The samples had not then arrived ;
they were, with the remainder, not yet carted up. They came,
however, on the following morning, and dissatisfaction was
immediately felt, for on inspection all but three bales turned
out to be very inferior to the samples. The defendant did
not rest satisfied with his own judgment, but sent for Mr.
Swainson, a partner in the firm of Swainson, Burley, and
Co., the most extensive spinners in Preston, and his opinion
was, that with the exception of the three bales, the cotton
was not equal to the sample. "What must I do?" asked
Mr. Riley. " Why, you must send it back, it will not suit
your business at all." The consequence was, that seventeen
bales were immediately returned in Liverpool on the Bth of
June, and what had been done with them in the meantime
he could not say. This was a time when the defendant was
in want of cotton, and if it would at all have answered his
purpose, he would willingly have retained it. It was a time,
too, when cotton was rising, and the defendant must therefore
have gone into the market to make a fresh purchase at a dis-
advontage.
Mr. Ward, managing clerk for Mr. Sleddon, was then
examined. He remembered the purchase by the defendant
of 20 bales of New Orleans cotton, at lid per lb., from the
Messrs. Musgrove. There was no agreement about the qua-
lity. The purchase was made by sample. A letter from Mr.
Riley, complaining of the cotton not being equal to sample,
and that it had been falsely packed, had been sent to Mr.
Sleddon, and was put in by witness. He took the letter and
showed it to one of the plaintiffs, Mr. Henry Musgrove, who
said, " They must be sent back, then." They were sent
back ; and he (witness) had compared a sample drawn out of
the seventeen bales with the sale sample. The former was
very much inferior to the latter. The difference would be
about Id per lb. Cotton had risen in the interval between
the purchase and the return. Shortly afterwards, however,
the market fell to a lower price than it had been at the time
of sale.

Cross-examined.—He would not take it upon himself to
swear that he had shown the letter to Mr. Harry Musgrove.
His strong impression was that he did so, and that Mr.
Musgrove read it. He (witness) did not recollect stating
that he said to Mr. Musgrove that it had been found that
three of the bales were falsely packed ; he thought he showed
the letter. He believed he said the cotton was falsely packed,
and then Mr. Musgrove said that it was to be sent back. He
did say that Mr. Riley had written that some of the bales
were falsely packed, and on that statement Mr. Harry Mus-
grove said, " Why, then, they must be sent back.
Mr. Thomas Sleddon deposed that when a complaint had
been made of the cotton, he told Mr. Harry Musgrove that
Mr. Riley did not like it. He did not explain that it was
falsely packed, and Mr. Musgrove said, " Send it hack."
Richard Pollock, a card master in the service of the de-
fendant, compared the six bales first opened with the sample.
Three were in accordance with the sample, and three were
not. He also made a comparison of the sale sample with a
sample of the seventeen returned bales, and the latter was
inferior. If the cotton had been equal to the sample sent, it
would have suited their business ; but there were only three
bales that would suit. The mixture of inferior cotton with
the proper sort of cotton (fitted for the spinning of 40's)
would spoil the yarn. From experience, he should say that
one of those bad bales, when mixed with twenty good bales,
would spoil the yarn. The three bales retained were not
better than the original sample.
John Ashworth, warehouseman and clerk to the defend-
ant, corroborated the evidence of the last witness.
Mr. Wm. B. Swainson, of the firm of Swainson, Burley,
and Co., cotton-spinners, of Preston, stated that the three
bales used were a fair average of the sample. The remainder
were decidedly bad ; unfit for the use of the mill, and inferior
to the sample.
Mr. Win. Taylor, a cotton-spinner, had examined the
sample said to have been drawn from the seventeen bales,
and it was very much worse than the sale sample, to the ex-
tent of td. per lb. He spun 40's in his mill, and such cotton
would be unfit for his purpose.
Mr. CRESSWELL then replied, maintaining that there had
been no answer to the case of the plaintiff.
His LORDSHIP summed up at considerable length. After
having stated the nature of the case, he said that if a man
purchased goods by sample, the seller was bound to send goods
equal to the sample, or there was no sale ; and perhaps, if
goods were sold under one uniform sample, and a portion of
the goods sold was according to sample and the rest not, the
purchaser might be allowed to keep the goods corresponding
with the sample, and to return the rest, because he might say
that he bought those only that corresponded with the sample,
and not the others. But in the present case, even according
to the evidence of the defendant's witnesses, the cotton was
not sold according to one uniform sample, but an average
sample. Then, when such a contract as that was made, that
the average of the bulk should correspond with the average
of the sample, the purchaser was not allowed to keep one
portion, which might be the same or better than the sample;
but he might, if the bulk did not correspond with the sample,
repudiate the bargain altogether, and say, " You have not
sent me such as I purchased." He might send back the
whole under those circumstances ; but he had no right to
keep the better portion, and send back the worse, throwing
that upon the vendor's hands. Then if, according to the
evidence of the defendant's witnesses, the sale had been one
from an average of twenty bales, he had no right to keep a
portion and return the remainder. But the evidende of the
defendant's witnesses did not make out any such a case as
that, because this was not, according to their evidence, a sale
of cotton on an average sample of the twenty purchased
bales, but a sale of twenty bales, a portion of a larger lot,
on an average sample of the larger lot; and then the de-
fendant, in order to justify himself in repudiating the con-
tract, should show that the bales delivered and the other bales
forming the larger lot would, when put together, form a lower
average than the average sample of the whole lot. But there
had been no evidence adduced of what the 15 bales were which
were sent to the other party ; therewas only evidence of what
the bales were that were sent to the defendant. According to
the evidence of one of the defendant's witnesses, the purchase
of Mr. Sleddon was made from an average sample of 40 bales.
Another witness, called for the defence, said that there might
have been 40 baies, but he would not swear that
in
there was
not an average sample of 60 bales. Both concurred stating
Ipie.rsSol end. d
ep udricdha nots-
et hda2t
ot I;berremwre.r eR4i
Riley,
nadn hd
last ffroorm anotherth em 11
purchase the whole lot out of which the average sample had
been formed ; and according to common sense, if a purchase
was made from the average of a larger lot, it could not
the
be
expected that a smaller portion should correspondwith
whole part that was sampled, because some of Butthe thevendor
bulk
might
.
be good, some bad, and some intermediate.
did
inel
unotn quality
tpyl etdhgee
same himself
as tthhea
at
vt
ehrea
ga
ev e
or af g
the ofe
whole,2o bae s should
hu t
merely
that the sample of the whole should correspond with the ave-
rage of the bulk. Then, if a purchaser took from the bulk
the first 20, or the second 20, or the third 20, he must run
the risk of getting something better or something worse than
the average; and to justify himself in sending back even the
whole, he must prove that the 20, when compared with the
other 20 (supposing there were 40), or the other 40 (suppos-
ing there were 60), did not come up to the average sample.
Now there had been no evidence, as he had before stated,
of what was the quality of the 15 bales purchased by Mr.
Sleddon for another party : it might have been that they
were so much better than the 20 bales sent to Mr. Riley,
that the whole would correspond to the sample. It ap-
peared to him, then, that these was no justification on
the part Of the defendant to repudiate the contract. But
it seemed that this was not even the manner in which the
purchase of the defendant had been made ; for the 60 bales
from which the original sample was made had been allowed
to be taken by another person, and then, as Messrs. Knowles
and Richards couldivenomt samegniveßtilheeyptlhaientpiffrsivtihleeof se
6Olebeatliens,
they offered tog g
his 35 bales, so as to reject the inferior bales. With re-
spect to the plea of false package, if that could be substan-
tiated, the goods would then be returnable. The evidence
of Mr. Clare went to show that there had been no false pack-
age, and only one of the defendant's witnesses spoke to any-

`s,

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thing like false packing, and he did not she the bales when
they were first opened. He saw them after they bad been
returned, and he said " Two or three of them seemed to me
as if they were falsely packed ;" but they might have been
those bales opened at Riley's, and in which some mixture
might possibly have taken place in the course of examination
and comparison. In their evidence as to the comparative
qualities, the defendant's witnesses generally spoke of having
compared the sample drawn from the 17 returned bales, with
the original one, or that taken from the 60 bales. If the
jury were of opinion that the plaintiffs had voluntarily agreed
to take back the 17 bales in satisfaction of the price, then, no
matter what was the contract, the defendant was entitled to
a verdict. The evidence on that point rested principally on
the evidence of Mr. Ward, which his lordship read over.
After some further remarks for the guidance of the jury, he
concluded. _ _ _ _ _

The jury, after ten minutes' deliberation, found for the
plaintiffs, on both issues : damages £248 15s. being the
amount claimed with the deduction of the £3B paid into
court.

This case fasted five hours.

Several undefended causes were then disposed of.
LIABILITY TO INDEMNIFY TENANTS OR CUSTOMERS FOR

GOODS DESTROYED BY FIRE.

ARMITAGE V. WINTERBOTTONI AND ANOTHER.—The de-
claration stated, that, in consideration that the defendants
would provide the plaintiff with certain steam power and
standing room, and would also dry a certain quantity of wool
for the plaintiff, he undertook to pay them a yearly rent of
£2OO ; that afterwards a quantity of wool belonging to the
plaintiff was destroyed by fire, and nevertheless the defend-
ants, though they had promised to indemnify and save the
plaintiff harmless, had not done so. There was a second
count for money hadi for the plaintiff's use, and not paid over
to him. The plaintiff was Mr. Joseph Armitage; and the
defendants had pleaded separately. Mr. William Winter-
bottom pleaded first, non assumpsit; and secondly, that the
wool was not on the premises of the defendants as stated.
The defendant, John Hextall, pleaded the general issue;
and secondly, that no wool of the plaintiff's was on his
(Hextall's) premises.
The jury, after a minute or two's consideration, found for
the defendants.

CROWN COURT.-WEDNESDAY.
FRAUD ON THE LORDS COMMISSIONERS OF CHELSEA