County Court: January 22nd, before M. Fortescue, Esq., Judge: Skinner v Pinsent: Mr. Michelmore, solicitor, of Totness appeared for the plaintiff and Mr. Francis for defendant, who is a brewer carrying on a large business at Newton. This was a jury case.
Mr. Mitchelmore stated the case at great length. The action was brought by his client, a farmer, residing in the parish of Staverton, to recover the sum of £34 17s 6d, for ninety bags of barley, sold to the defendant’s agent, of which £32 12s 6d had been paid into court.
The facts were these: Plaintiff having barley to sell met Avery, who is the agent of defendant, and offered him a sample of the barley. Avery asked how much he had to sell and was told some ninety to one hundred bags. Avery took the sample to Mr. Pinsent, and afterwards returned to his own house, the Turks Head, Newton, where plaintiff was stopping, It was arranged that Avery should have the barley at 7s 9d per bag – ninety bags; which a few days afterwards were sent to the Totnes railway station and dispatched to Newton.
Two days after this a letter was sent by Mr. Pinsent to Mr. Skinner, Littlehempston, where the plaintiff had resided previously with his brother. It stated that there was a truck load of barley at the railway station, but it was so very inferior in quality to the sample that he refused to take it and recommended Mr. Skinner to send for it as speedily as possible.
On the Wednesday following the plaintiff’s brother met Avery in the street at Newton and asked him the meaning of the letter. Avery said, “It’s all right about your brother’s barley; it was a mistake, our man took a sample from Mr. Bowden’s barley at the station instead of your brother’s’ ‘. After this, the barley was taken from the station and stored away in the defendant’s malt house.
Plaintiff and his brother went to Mr. Pinsent when the latter said the barley was not so well conditioned as he expected; to which Mr. Skinner replied, “It is very good, and your man, Avery, said so”.
After some further conversation they all went to the malt house and Skinner was directed to a sack to compare its contents with the sample. He put his hand into the sack and took some barley and after looking at it said it was not his barley. Mr. Pinsent directed him to the next, but this he said was his own barley, as he knew it because of the manner in which the knot was tied.
A handful was taken out and put in a scoop; and the plaintiff took a sample out from his pocket and put it by the side to compare it. Mr. Pinsent was satisfied that there was no difference. Nothing at that time was said about “screening”.
Defendant said, “If you come up to my office at three o’clock, I will pay you”. Accordingly, Mr. Skinner went there with the full expectation of being paid. On going in the defendant said, “What does your barley come to?” “£34 17s 6d” replied Mr. Skinner. After some conversation Mr. Pinsent said, “Your barley is not according to sample; there it is in the malt house, and you can take it away”.
On the 25th November plaintiff received a letter from Mr. Holmes, the clerk, stated that if he came to Newton on Wednesday week, “In a good temper” there was no doubt but what his claim would be satisfactorily settled. A few days afterwards Mr. Skinner sent a friend to Mr. Pinsent to ask for the money: the defendant at the time refused to pay the amount but offered to pay £25 on account. On the 15th December, plaintiff again saw Avery and asked him to go for the money. Avery said, “The money’s all right: you have had a letter”. He then went up himself and was again refused payment.
Edwin Skinner, a farmer, living in the parish of Staverton, was then examined. Having given an account of the sale of the barley to the defendant and with reference to the interview at the malt house he said that Mr. Pinsent insisted that the bulk was not according to the sample. Witness then took out some barley from his pocket, a portion of his old sample, and put it on the shovel with the rest. Defendant said he did not see any difference; one was a little lighter than the other; he was told that was caused the barley being carried in his pocket and showed by rubbing some barley in his hand that they became brighter by the process; and would swear that what he had in his pocket was the same he had previously shown to Avery.
Defendant, after asking where he intended dining, told him to call the office at 3 o’clock and be paid. Nothing was said to witness about taking back the screenings more than to ask Avery how much he would take out with the screen. Went back to Avery and told him what had occurred, and that Mr. Pinsent said the barley was not like the sample. Avery replied, “What does he know about it? I did not give him the sample at all, for I put it into my pocket and lost all but a few corns”.
Witness said he was to ask how much he would take out with the screen, to which he replied, “not the half of fourteen or fifteen bushels”. Witness then returned to the office, defendant and Mr. Holmes were there; the former of whom took down his chequebook and asked what Avery said. Told him Avery said it was according to the sample.
Mr. Pinsent denied it, and said the barley was very small and he should not pay for it. Defendant said he had the first sample in the office: witness asked to see it; and on its being shown to him declared it was not his, and then told him what Avery had said about losing the sample. Witness then went back and induced Avery to go and ask for the money; but he came back saying his master was in a devil of a temper and would not listen to anything.
Avery said then in the room, in the presence of a witness, his brother, and a Mr. Tripe, that the barley was good, and no one needed to complain of it. Soon after this, I received a letter from Mr. Holmes, stating that if I came in a fortnight, and in a good temper, the account would be settled. In a week the witness sent Mr. Manning, a miller but no settlement. On the 15th of December, the witness called on Avery, and afterwards saw the defendant.
Witness said to him, “Well, what are you going to do about the barley?” he said, “I shall not pay for it”. And then he sent for Avery, and after having a short conversation with him, the defendant turned around to witness and said he should not pay for the barley unless he took the screenings back. Witness said he wouldn’t, and Pinsent said he might go to the devil.
The witness would not swear that there were not more small corns in the bulk than in the sample. Mr. Theophilus Tripe, a farmer, living in Torbryan, stated that he recollected being at the Turk’s Head when plaintiff, his brother and Manning were there talking about some barley and examined the samples shown by Skinner.
Heard Skinner say he had been to Mr. Pinsent but could get no money. Avery then told him to go home and come again in a week or two and then his master would be in a better temper. Also heard plaintiff’s brother ask Avery if the bulk was not as good as the sample given him by Mr. Skinner as he had only a few corns left in his pocket he did not show Mr. Pinsent the sample at all.
Mr. Richard Manning, farmer of Staverton, said he was at the Turk’s head on the 10th of November. Heard Avery offered 7s 6d per bag for Skinner’s barley; saw the sample considered it a fair price for the barley. On the 20th, called on Mr. Pinsent for the money; he said he should not pay it as it was not according to sample, and because, when Skinner was there last, he threw out something nasty to him.
Defendant asked him to look at the barley, but the witness declined to do so. Mr. Pinsent asked the witness if he would take some money on account, but he refused, the market price at the time was from 7s 6d to 8s 6d, according to quality. The difference of 7s 9d was made because Skinner had some distance to take the barley to the station.
Heard nothing about screening, but that was according to agreement. James Skinner, brother to plaintiff, residing in Littlehempstone, received the letter produced, stating that barley was at the station and that Mr. Pinsent refused to take it. Afterwards he heard it was a mistake and that it was Bowden’s barley.
The witness corroborated what had been stated by the other witnesses, of what occurred at the Turk’s Head.
Mr. Francis, for the defence, argued that there was no question as to the sale, but the question was this – was the barley according to sample, and it would be for the jury to say whether a difference should not be made in the price by reason of a difference in quality. Mr. Pinsent was content to pay the value of the barley and had offered to refer the dispute to one or two competent men to decide: men who should be selected by Skinner himself. He was sure the jury would think that nothing could be fairer than that.
It was of importance that Mr. Pinsent should have grain of a large size, to the miller size was of no consequence, but to the maltster, it was a matter of serious consideration, for in the process of malting small corn was entirely valueless. Having gone over the evidence, he called Thomas Avery, who stated that on the 10th November, Skinner showed him a sample of barley.
Witness was very much taken up with it and showed first to Mr. Holmes and then to Mr. Pinsent: Offered Skinner 7s 6d and if he could do better in the market to do so. Saw him again in the evening when said he had not sold the barley. Bought off his ninety bags at 7s 9d, received that same day the sample of barley from Mr. Cury, these he put on a shelf but Skinner’s he put in his pocket.
Saw plaintiff’s brother some time after, when he said “Haloo, how did you send on that letter about the barley?” Told him it was a mistake, and in reply to his question, said he did not see much difference between the sample and the bulk of his brother’s barley, but at that time the witness had only opened the bag, and that he thought pretty good. To make all right he had looked at six or seven sacks and found them all to vary very much, and all very indifferent. The sacks were in the malting house now, in the same state as when they were brought in. Saw Skinner before he went to Mr. Pinsent and told him if the bulk was as good as the sample, Mr. Pinsent would pay him.
Went that same day to Mr. Pinsent at Skinner’s request did not recollect James Skinner’s asking him whether the bulk of his brother’s barley was as good as the sample. The barley in bulk witness would not have bought had he known its quality.
Before it could be used for malt, it would have to go through the screen and then it would be very indifferent. In cross-examination by Mr. Michelmore, the witness said, would not give 5s a bag for what was in the store.
Mr. Pinsent told Skinner if he could get any person to go into the dispute he would abide by the decision, told Mr. Skinner there was more small corn in the bulk than in the sample, but never said “No person can complain of it”.
After the examination of this witness, the jury retired to compare the sample with the barley in store at Mr. Pinsent’s. The jury, after a brief absence, returned to the court, and after a consultation of a few minutes, brought in a verdict for the plaintiff, full amount claimed.
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