SUPREME COURT.

Otago Daily Times, Issue 8449, 23 March 1889, Page 6

SUPREME COURT.

CIVIL SITTINGS. Friday, March 22.

(Before his Honor Mr Justice Williams and a special jury ci: four.) FINDLAY AND CO. V. F. MANDER AND CO.

Claim £200, damages for non-fulfilment of agreement.

Mr Sim appeared for the plaintiffs; Mr Hosking for the defendants.

The statement of claim set forth that the plaintiffs were au incorporated company carrying on business in Dunedin, and that the defendants were timber merchants in business at Maungotoroto, Auckland. On April 3of last year it was agreed between the plaintiffs and the defendants that the latter should sell aad deliver to Findlay and Co. 350,000£t of kauri I timber at 4s 9d per 100 ft. This agreement was contained in telegrams, and in pursuance of it, the defendants, in the month of August last, delivered to Findlay and Co. 170,000 ft of the said kauri timber, who paid the defendants the price of the same. It was further alleged that Findlay and Co. had always been ready and ■willing to accept delivery of the balance of the timber as agreed to be sold, and to pay for the same, but the defendants refused, and still refuse, to deliver the same, and had wrongfully repudiated the contract with regard to the balance.

The defendants pleaded that it was only arranged that Findlay and Co. should purchase from them one cargo of kauri timber at 4s 9d per ICOft, and that the same was consigned to the plaintiffs by placing it ou board the Kentish Lass. The defendants denied that the agreement set forth in the telegrams was made for my specific quantity of timber, other than that to be contaiued in one cargo, and therefore they repudiated any liability to Findlay and Co. Mr Sim opened the case for the plaintiff, aud in doing so said that one of the questions raised for the determination of his Honor was: Did tae plaintiff company accept the 175,754 ft that ■were delivered in performance of the contract ? In placing the case before the jury he (the •learned counsel) assumed that the contract was 'to deliver 350,000 ft, and it would be for his Honor to direct them whether there was a contract to deliver that amount, or one cargo rmerely. The second question was: Did the plaintiff company in receiving the 175,754 ft by the Kentish Lass accept that as a portion of the 350j000f t ? The next question was whether there had been any unreasonable delay on the part of the plaintiff company in applying for a delivery of the cargo. The evidence adduced would show that it was extremely difficult to get a vessel to eirry this timber, and that after negotiating for a long time Mr Findlay managed to get a ship only able to carry half the quantity mentioned in the contract. Supposing, however, ■chore had been a little delay, the learned counsel submitted that the defendants had acquiesced in. that delay, inasmuch as they had not complained of it. James Findlay, the manager of the plaintiff company, gave evidence of the contract for the sale and purchase of the timber, and said that after this contract was entered into there was a considerable increase iv the value of kauri timber. The rise began in June or July, and the. timber went up to Gs6d or 7s per 100 ft, and two months ago it fell to 6s. Cross-examined: Before he made the contract with Msnder he knew the Janet Nicoll would be \».ble to carry about Sso,oooft. He tried to get the Janet Nicoll to bring the timber, but found i she had been chartered for 12 months. Evidence for the plaintiff was given by Henry . Guthrie and George Blyth as to the efforts of Mr Bindlay to get a vessel to bring the cargo ; and to the fact that there was a gradual rise in . the price of kauri timber. » This closed the plaintiffs' case. I Mr Hosking said he proposed to raise the i question that there was no evidence to go to the > jury, on the ground that no contract was proved : in accordance with what the plaintiff alleged • t but possibly the point might be reserved so as not to take up the time of the jury, i His Honor thought that would be the better f course to pursue.: i Mr Hosking said that the questions left to the E jury were whether the plaintiffs were ready . and willing within a reasonable time to take 1 delivery of the cargo; and secondly, the quesr tion of damages. The question of acquiescence t would of course largely depend upon the cou- ; struction of the contract; if it was a contract to i sell a cargo and nothing more, obviously the 1 delivery of that one cargo and the acceptance » of it would be a satisfaction of tho contract. The i first telegram contained the terms, " delivery at 3 the beginning of May," and the defendant would ' in his evidence show that such an unreasonable f length of time as four or five. moDtbs, and particularly in a rising market, was n. lapse cf time . which in his experience ss a timber merchant - he had never known to take place upon a sale 3fof a cargo of timber. If, howewr, it was not

part, of the contract that delivery should take placy at the beginning of May, then his Honor would tell the jury that if no time was fixed the law implied a resonable time, and he (tho learned counsel) should submit that a period of four months was an altogether unreasonable time within which to offer to perform this contract. The telegram of 22nd May showed that Mander requester] Findlay to " hurry up as he

must sell," and that indicated that unless de livery of the cargo was taken at once he would have to dispose of it elsewhere. The whole history of the thing as told by the telegrams was that Fincllay had taken au unreasonable time in applying for delivery of this cargo. Mr

Mander would tell them that so far from this failure to take the timber being to his advantage he had in coesequence of that been a loser. The defendant would tell them that while the delay took place he disposed of the timber to the kauri syndicate at 4s per 100 ft instead of at 4s 9d. This would effectually dispose of aay suggestion that the defendant, had taken advantage of a quibble to break the contract. Evidence was then given by Frank Mander, and counsel on both sides addressed the jury. His Honor, in summing up the case for the jury, said it was somewhat difficult to separate the questions of law, which it had been arranged should be discussed hereafter, from the questions of fact that had now to be submitted to the jury. They must assume, however, for the purposes of their verdict that the contract was for 350,000 ft of baulk timber at 4s 9d per hundred. The contract was concluded on the 3rd of April 18S8 by Mr Findlay's telegram; and it was the duty of Findlay and Co. to send for the timber and take delivery of it within a reasonable time. His Honor then read and commented on the evidence. The jury retired at 1.10 p.m., and in five minutes returned with a verdict for the defendants, and judgment was entered accordingly, with costs as per scale. WINMILI, V. GALLIE AND OTDEHS. A suit to determine the validity of the will of the late John Gallic. Mr J. F. M. Fraser appeared for the plaintiff; and Mr J?. R. Chapman for the defendants. The hearing of this case was resumed at 2 p.m. Lydia Gallic (examination resumed) said: I remember the Leith street section. It was a town section originally. Some of it has been sold. Aitken first bought a piece of it. I could not tell the date when that was done. It was sold owing to our being in difficulties. The High street property being empty, there were no tenants then aud no rents coming in. The advisability of selling was discussed with my husband. It was giving me " thought" owing to having a large family. We did° not need so much laud, and my husband approved of the selling and wanted to sell it. Both of us attended to the sale aud saw someone about it. A notice to sell was put up on the ground. The agents' names were Gillies and Street.' The board did not stand there very long. I cannot remember who put up the board. Mr Street saw my husband about the sale of this land I know that because I spoke to Mr Street about it when he came and saw my husband. I saw Mr Street in the house. The land was sold" I could not tell how long this was after the board was put up, but it was sold. It was the back not the frontage. There was no use made of it before it was sold. There used to bo a garden, but it grew wild. After it was sold the person who bought it built oa it, and it was fenced off. There was no more sold for a good few years after. Then the other piece was sold My husband said he should like to have our son John beside us. He often spoke about it, and wished it very much. John's place was up at Koslyn, and that was too far for my husband to go. There was a spare bit of land fronting Leith street, at the side of my place, and my son got this laud and built upon it. My husband was at homo while the building was going up I think there was a deed. I did not see it signed, but I have seen the paper since. My son paid for the laud. Something was piid when he got it, aud I got the rest afterwards. Some of the purchase money was paid before, and caiuo aStur my busbar d died. My son John was married at 'lWiiui about twelve years since. My husband did not sctow much interest in the event, but said he was glad to see that John was getting n good wife. John's house in Leith street was just about finished when my husband died The next marriage in the family was that of Mrs Davys, my second daughter living. My [husband knew Mr Davys, who married my daughter in May 1878 The marriage took place in my house My husband was present, and decidedly appeared to understand what was going on. He seemed to know everything that was going on in the house, just liko any other man. He read newspapers. The Star rama every evening into the house, and he used to read it now and again ; and sometimes he would converse with me about what he read in the papers. It's so long ago it's not very easy to remember; but he used to be very fond of reading the leading articles, and seemed to take nu"interest in them. He would talk about what he read in thti articles, and used to lake an intciest in politics. I took little, interest; in politics and so his conversation did not greatly interest me. I cannot remember in what political subjects or persons he took most interest. In elections he used to take a great deal of interest. Up to a year or two or 18 months before, his death ho

Ueatn. Jjr Borrows then attended him, nud Dr Borrows is now dead. Dr Borrows did not see my husband moro than once, and then he came again alter my husband died. Ido not think the doctor was there more than six or eight minutes. When Dr Borrows came my husband was sitting on the sofa. I could not say to what date ray husband read the newspapers, but he read them to shortly before his death; though towards his death he did cot read so much or take 60 much interesthe would just look over thorn. Five or six years before his death he would just read ths papers when they cams in—look over them, and for nine or 12 months before his death he took less interest in them. He used to go to the barber every Saturday night for a shave-, but during (he lsit'l2 months ho did not go so often. Mo ns-.;d to go by himself to gei chived. Duri:.:; i-.i. : last 12 months he did net go so oft-.ii>, but, l, : . ; i^ ] ]a . ln | grO vp. There was cot much growth of. beard when he died. Mr Bode used to uhave him, and Mr Bode is now dead. His shop was somewhere about the Sussex Hotel. My husband used to chop wood and carry it in and bring in water; anything like that he used to do. He chopped my wood up to nearly the last. He used to light the fire, put the kettle on, dig in the garden, brush up the back yard, and necessary things like that he always did. He used to have flowers and vegetables in the garden. At the time of my husband's death, Mrs Davys lived in Cumberland street, where she had settled from the first. My husband used to go by himself to Mrs Davys' house now and again to see her. At the time of my husband's death, Catherine (afterwards Mrs Winmill), Margaret (now Mrs Ewen), and Millie (now Mrs Spence), and my son Henry, were living with us. Mrs Ewen is now in Melbourne. Neither Mr Ewen nor Mr Speuce knew my husband. Mrs Winmill was married a year ago yesterday. She was grown up when my husband died, and continued to live with me until May ISS7, with the exception of au absence oE one year, while in a place as saleswoman at Lawrence, and another absence of nine or 10 months when she was with her brother John at YVellington. These were the only absences excepting when she went away and stopped away for a few days now and again. We agreed well together. She never liked to go to business, and said she wanted to stop at home. I could not keep a girl idle every day at home. Mrs Speuce was out at business, and Mrs Eraen, until she was married, I always had at home; she worked at home; I would require one at home. My son Henry was a clerk. Mrs Winmill had a business on her hands; she was a good machinist at first, and did not like that and went to the sales, but was not long a saleswoman. She would like to stop at home but would do no work; she read novels, lay in bed and went out walking. I complained of this; it annoyed me very much to see her like that. During these unpleasantnesses nothing was ever said about property. I do not remember any communication about property from any member of the family. I don't remember auy communication from my family connection about the will. Yes; I remember having a letter from a lawyer. I have not that letter now. I never thought of keeping it, and suppose it was torn up. It was from Mr Travers, of Wellington. ~I think it will be five years next June since I received it. It was written on behalf of Mr Ludford. I got a letter first from Mr Ludford. I did not keep it, but I remember some words in it were that ha wanted my " sympathy and assistance."

Mr Fraser submitted that these letters would not be evidence if they had the originals, aud consequently the letters were not evidence.

Mr Chapaiau argued that the matter was relevant as the contents of the letter ware communicated to the other children.

Mr Fraser said he was prepared to withdraw his objection and let it go without further argument.

Witness resumed: I destroyed that letter too. Mr Ludford asked for my sympathy and assistanco I suppose because he was hard up or something of that sort. Then came a telegram from Mr Ludford sayisg, "Don't, trouble about the lawyer's letter; it is all a mistake." The day after that Mr Travers' letter arrived. About a month after getting Mr Ludford's letter, not having answered it, I got the lawyer's letter. This letter was that he would take an action like this against me, about Mr Gallic not beiug capable of making a will. I never answered any of these letters. I showed this lawyer's letter to all the members of the family; to those living with me and those who were outside. I showed it; to Sirs Winmill, and she was the worst in the house against Mr Ludford for having it sent. I showed it to John and to Mrs Davys. With i';ie exception of that letter I never heard till these proceedings were threatened anyone suggesting such s. thing as disputing this will. I have been ilrnwing the rents of the land on which WVison's Botul stands since my husband dirid. That )>..is i-ivi-n mo rather lets than £200 a Jcir. \i*iiij (hab I hitvu Jiaii to pay property tax, to feed and clothe the family, The on!j oiie who was abser.t during the whole time was Mrs Liidford Those who were married, with the exception of Mrs Ludford and Mrs Winmill, used to come to see me. Mrs Winmill did not ask my consent to her marriage. I could not toll Mr Winmill from any other man until yesterday.

Cross-examined: I married ia Inverness, and atu a native of that place. My husband came from Ross-shire. I did not know any of his people before I married. They were all strangers to me. I saw them for a few minutes on my way to New Zealand. I then Saw my husband's mother and brother. We had baen theu married 14 months. My husband's father was dead years before that. My husband's mother told me nothing about my husband's relations. I'knew a Mrs Yorkein this town some time ago. She nursed my daughter Annie in one of her illnesses, and I knew her at that time pretty well. She was a respectable woman: I never told Mrs Yorke that I blamed my husband's mother foe letting me marry my husband because there was something wrong with him. lam sure of that. My maiden name was Lydia Rose. We came out in the Ajax. My husband treated me properly coming out; in the ship. He was a kind man, an indulgent husband, but when he had occasion to be bad tempered he would be. He was not hot tempered with me in the way out. When we first came to the place my husband did not give way to drink. My husband took to drink a long time before we went to Leith street, before he left business and afterwards. I could not say how long he was iv business—about 11 or 12 years I think. I have seen Mr Sheriff, the cooper. Ido not know if he was a compacion of my husband. My husband got iuto some serious scrapes within those 12 years. I might bave heard of my husband thrashing somebody. I could not tell if he had more thau one case in court. I did not know much about his business in those days. He used then to manage his own business. I should describe my husband iv those days as a pretty clever man. He was very good tempered, and he had his own temper when he was put out. I have never in my life left the house because he lost his temper. lam beginning to remember. One night in High street he was rather put about with the drink, and got up through the night and was cross. I then sent the children to a neighbour's down the street, and they came home in the morning. That was the only time, and I did not go out. When I first met my husband he had a little difficulty in his speech. I did not notice his impediment of speech getting worse during the 12 years he was in business. I did not see much difference in him until about 12 months before his death, when his speech got thicker I could not say I noticed much difference till then. Some people miaht in those 12 years have had some difficulty in understanding him. I do not believe I saw him iv bed ever in real trouble until just before his death. I call sickness real trouble Ido not remember when he had a stroke. I wont swear that he never had a stroke but I never heard he had except from outsiders I remember an illness of my husband's in the sixties, when Dr Nelson attended him. That would be 28 or 29 years ago. He had then got a kick irom a horse on the leg, and so far as I can recollect he was not three days in bed. I do not remember his speech being affected then. I will swear Dr Nelson did not tell me my husband would never be the same man again. I remember leeches being put on his head, behind his ears, for a headache. He put them on himself. In the sixties, excepting when stupefied with the drink, my husband, so far as I know, was a perrectly sane, capable man, transacting his business for himself. I remember about the time the forge was given up and the sale of the stuff. I used to sell the stuff myself sometimes. I knew a Mr M'Dcrraid then. I had seen him, but did not know him well. I knew old Mr Cramoud. I do not think that Mr M'Dermid and Mr Cramond altogether managed the sale of the smithy and tools, but they came occasionally. At this time niy husband was in b.td. I kepi him in bed. He was in bed a good few months. At this time my husband was not so paralysed that ho could not hold a pen. I never saw my husband paralysed. Perhaps when my husband was in drink he could not write. During that four months my husband got drink; now and again I gave him drink to keep him off the streets. He would have it or would go out. M'Dermid and Cramond sold the plant between them, but not all at onco ;it was lying there tor weeks. At this time my husband had money in the banks. I think he had over £100 in the Union Bank. In the Bank of New Kouth Wales he had a few pounds. There was no difficulty about my husband's ohequßs at the Union Bank, but there was at the Bnnk of New South Wales, 'that di fficul ty was through Jl r Cramond, who happened to say that Mr Gallic was not well enough. I went with Mr Cramond to gut the mnufly, and he let out that Mr Gallic w;is not wry well. I forget what the banker s-ai.l; I did not get the money, The bailor and Mi- (Vnmond were talking close to ni«>, but not loud enough for me to hear. I did not hear Mr Oiamo::d bay that &lr Gallic had bad a stroke. I don't remember telling Mr M'Dermid about ic. Mr Gallic was not very well about this time; theie was the troublo about

have done so. I have nor. a bank account lor tei much. I have uo bank account, aud never kept as a bank account. I keep a pass book. I keep tuy mi money in a bank, aud have a pass book, tei I keep it in tho Savings Bank. I he did not put the mouey I got at that ex time in the Savings Bank; there was no Savings ;-.f Bauk then. I put the mouey into the Uuiou to Bank. A gentleman weut with rue to get the ca ouay out. It was not Mr Hill, but Davy F: Scott. This gentleman went with me. I w.-.s tb present at the interview with the banker, but do Ti not remember any rcfereuca to my husband's n( condition. I put the money into the Union A Bauk in my own name; ray husband wished it. sc This was at the time my husband was at home, cz and would be supplied with drink. I do not D remember M'Dermid n\;kiu« for a receipt rt in 1860, and having to t'x;<l:'.in iha matter ;r to my husband.' Ido not ri'ißi'iab r v.-ho were b employed in tbo City Butchery vviioj vvs lived rt in High street. I nevur nm-sed a man who had jr his leg injured there. I saw a man walking o about with a crutch; his name was George % Walker. That was the name I heard. His U name might have been George Hartley Walker, t I took not much interest in the man; but I I heard that was bis name. Long, before this I 1; took an interest in my husband's affairs. I took d an interest iv my husbaud's affairs before J he kept iv bed for threo raonths, and s when the flood was in High street, t Since then I have taken an interest now and t again in my husband's affairs. Ido not know t or remember whether my husband had a bank- r ing account after the money was withdrawn and I put iv my name. I drew all the rents aud got t the money for the good of the family. I do J not know whether I got the money from the t sale. My husband had money in his pocket i regularly. I would give him money when he : wanted it. I suppose I would give him < sixpence to go to tho barber's when he 1 had uot it; but I gave kiin money. He ' always bad money, The money he would havtj was not always the same shilling. I used . to buy his clothes, and always did from the first excepting when I made them, as I used to when we came here first. For some years I got £500 a year; but not for eight or ten years. The house in Leith street was built for me. I remember going down there from High street. The house was a new one. I had p. man there to put up fences and cut down trees. That man was the one who got his leg broke, George Hartley Walker. My husband took a liking to that man, he was so kiud to him. Some time before this the drink supply to my husband had been knocked off. I tried to break him from it by degrees; he was so used to it. Before we went to Leith street he was getting to be a sober man, and though be had mouey in his pocket, would not spend it. I don't remember how long Mr Walker had been there. I took no interest in him. All this time he was to me comparatively a stranger. We went to Leith street 27 years ago, and Walker stopped in the house about 10 or 12 mouths. After this he might come > there as a friend for a time, but never lodged or t stopped there excepting during that 10 or 12 ly months. Now and again—very seldom—when 3r he would come to see Mr 3allie.. he might stop at for a night. I have not Keen him for >d years aud years. As he wanted the job, 1 lr thought he might as well have it, as he re needed it. I never sent a box of as clothes to Mr Walker's family. I remember er Mr Walker's wife coming; she came one even- • I ing. I did not expect her, but when she came I sd kept her a few weeks. I never lent Walker money or helpsd him. He had some boats, and one Id I heard was called the " Lydia Rose," but that id wa s nothing to me. Mr Walker had a store. I

might have_ been once or twice in it, but I was never in it much. I do not remember Mr Walker borrowing £20 from me on a boat and giving a bill of sale upon it. Ido not know if he swore that was so. I may have bought some things from him, but not much. I will swear that, to my knowledge, things did not come from his store to my honse at the time of his insolvency. I will swear my daughter Lydia's room was not filled with goods from his store. I could not remember whether he failed or not. I remember him stopping one night in the house before he went away to the Port. I was uot intimate with Walker in any way; he was only an ordinary acquaintance. I never corresponded with Walker; never wrote a letter to him in my life. I remember when Mr Walker was in Nelson. I did uot write to him then. I do not remember a letter signed " Lydia Gallic" coming back through the dead letter office and being opened by my daughter Lydia, or boxing Lydia's ears for opening it. I will swear that such things never occurred. I remember going to Nelson and ( takiug my son Henry—a child four or five years—with me. My soa John was with me. There was no one else tbit I know on board that I can remember. Ido not kuow where I stopped in Nelson. I saw Mr Walker in Nelson. Mr Walker did not go up with me. I saw Mr Walker when I took my son to college. Mv Walker was lodging in the house where I stopped in Nelsoa. When I went up I did not kuow he was there. Ec did I not meet me at the steamer. It was by accident I met him at the lodging house. I did not see him for nights after ruy arrival, t do not think he was at the house when I went there. He did not come home with me, I do not remember him coming to the wharf and orying there. I have never seen him cry. He never stopped in Leith street after the nine or 10 months he stopped in my house. My busbaad liked to see Mr Walker, who was a kind man, kind to all.

At 5.15 p.m. the cross-examination was interrupted by the adjournment, the case beiug adjourned until noon oa Monday next.