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DISTRICT COURT., Ashburton Guardian, Volume 1, Issue 114, 17 June 1880
[Before His Honor Judge Ward.] Tuesday, June 15. V. . Fergus v. W. S. Peters.—Mr. O’Reilly applied for an adjournment on behalf of the defendant, which was granted. W. Sutherland v. James Steele. —Claim LIOO. Mr Branson for the plaintiff ; Mr. O’Reilly for the defendant. The latter declined to act because defendant did not appear. The claim was one for damages, estimated at LIOO, caused to certain stacks of grain, by the spreading of a fire from defendant’s land to that of plaintiff. Janies Sutherland deponed that the stacks burned consisted of two stacks of wheat averaging 400 bushels each, the whole quantity was about 800 bushels, and was worth about 2s. 9id. per bushel as it stood on the ground unthrashed. The evidence of a witness who saw the fire was taken. His Honor gave judgment for the plaintiff, for amount claimed, with costs. H. G. Luscombe v. J. Grigg.—Claim LSB. Mr. O’Reilly for plaintiff; Mr. Branson for defendant. As no particulars were attached to the summons, plaintiff was non-suited with costs. George Roberts v. Friedlander Bros. —Claim L2OO. Mr. F. Garrick for plaintiff ; Mr. Purnell for the defendants. George Roberts deponed that he knew a person named Gardiner, who was a tenant on his land, and owed him for rent. Friedlander Bros had since paid this rent, taking an acceptance from Gardiner for L4OO, which was due on the sfch February last. Witness received a letter from the defendants after this bill was due. Received also several accounts from Gardiner. Mr. Purnell objected to those accounts, being put in as they were handed to Gardiner by Messrs. Friedlander. His Honor over-ruled this objection. Witness—Messrs Friedlander knew tha a sum of L4OO would be due to witness by Gardiner to January, 1880 in August of the previous year. g&'Had received no part of the money from anyone. Took no proceedings against Gardiner because the latter had 600 acres of crop, and did not want to press him at that time of the year. Believed the funds would be ample to satisfy all requested witness not to press Gradincr, and ho did not do so. Gardiner became bankrupt in April, 1880. Friedlander Bros, received the whole of the crop or nearly all. Had seen the liens given by Gardiner to Friedlander Bros. Mr. Garrick asked that the lien be produced. Mr. Parnell objected, as they were sued on a guarantee. His Honor ordered the liens to be produced. Witness—On the representation of the defendants, witness did not take any proceedings against Gardiner, as he (witness) had been given to understand that as soon as they had possession of the grain there would be plenty to pay his claim, and the Friedlanders had written to him to say they would part with nothing until witness was paid. By Mr. Purnell—The L4OO was due to witness as a first instalment on the land. Knew that there was a bill of sale and a lien given to Friedlander Bros. Was not surprised to hear that these were to cover certain advances made to Friedlander Bros. Gave an indemnity to Gardiner against any claim by the Trustee in Bankruptcy. The sum claimed (L 200) would not cover the loss and depreciation in the property. Was not aware that Gardiner had insisted upon the wheat being shipped to England. James Gardiner deponed Was a farmer, living at Ashburton. Filed his schedule about six weeks ago—being forced to do so by Friedlander Bros. Gave a lien and bill of sale over crops and farm implements to Friedlander Bros. After' these bad been seized there was nothing left. His liabilities were about L4OO, besides what he owed to Friedlander, and exclusive also of rent. By Mr. Pu vsell—The wheat crop would probably average twenty bushels per acre, the oats forty, and the barley thirty, at the time the liens were given. The crop, however, only turned out thirteen bushels of wheat, forty of oats, and eighteen of barley per acre. It was his wish that the wheat was to be shipped home. Friedlander offered 3s. 7d. per bushel for the grain. Told Roberts that he (witness) owed Friedlander LI,IOO. By Mr. Garrick—The price agreed upon with Friedlander Bros, was 3s. 6d. per bushel for the wheat at Promore station. Mr. Purnell spoke at some length urging that the defendants were entitled to a non-suit. [Mr. Garrick—We will Hot be non-suited.] Mr. Purnell then said that in this event judgment ought to be given for the defendants.* The Tetter of Messrs. Friedlander founded on by plaintiff did not amsunt to a guarantee, as no promise could be particularised, and no sum was specified as guaranteed. Only an interview which was to bo held was referred! to. If the correspondence that had passed between the parties contained any guarantee at all, it was useless, inasmuch as the letters were not stamped, and besides the subsequent bankruptcy of Gardiner released defendants from any liability that could possibly arise under the alleged guarantee, inasmuch as the bankrupt’s estate then passed into the hands of a trustee. The defendants had made a fair estimate of the crops as they appeared at the time that estimate was given—an estimate that was not different to the one given by Gardiner himself, and they could not be expected o have control over the yield, which, as it turned out, was not so high as they calculated, nor over the prices, which subsequently fell. It was absurd to accuse the of having made false representations, as the position of Gardiner was open to the inspection of plaintiff as much as it was to defendants, and it was plaintiffs duty to have made an examination. It was imperative on plaintiffs part to prove loss, and this he had not done ; but he now sought to recover a sum of L2QO, with the land and all the improvements upon it. If he succeeded in this case he would be vastly better than if the defendants had paid him all he asked before, for now he would secure Gardiner’s land and reap the benefit of some L9OO of improvements made upon it. Defendants had offered him L4OO if he would hand over the land, so that no loss could have fallen upon plaintiff, while the loss of L2OO had been suffered by defendants. He would now call Hugo Friedlander, who said that Gardiner being in difficulties, his firm were making advances to carry Gardiner on through the harvest. Not wishing matters to be complicated by any action on the part of the landlord, he proposed to Mr. Roberts that the latter should permit his claim to stand over until the harvest was reaped, and defendants would undertake that after their own demands were satisfied, they would not part with any moneys realised from Gardiner’s crop until Mr. Roberts was a}so paid. At this time it was anticipated that the crop would yield far more than actually turned out to be the case, and the net result was that defendants’ firm had lost L2OO by the transs action. They nevertheless paid Robert - L2lO for rent, 'Roberts giving them an indemnity. The indemnity was not given against the trustee in bankruptcy, because Gardiner had not filed then. Defendants insisted on this indemnity being given because they did not recognise any claim on Roberts’ part. As for the claim of L4OO, the land on which it was due had reverted to Roberts. Defendants offered to pay it if Roberts
would place them in the same position as Gardiner occupied, which, however, ho refused to do, insisting upon receiving the L4OO without consideration. With refer : ence to tho statement as to the secured account, amounting to L 230, witness said that he saw Mr. Roberts two or three days after his letter was written, and then explained to plaintiff that by “ secured account” he meant tho bill of sale account, and that Gardiner owed his firm L 450 on another account secured by lien. Mr. Garrick, for plaintiff, in addressing the bench, admitted that there was perhaps no legal guarantee given by defendants in the strict legal sense of the word ; but he held that the letters that had passed between the parties amounted on the part of defendants to as much. One of these concluded with this passage, “ There will be sufficient to pay all, and we will not part with any money until you are paid.” To his mind this was a guarantee, and was equivalent to defendants saying they would take over Gardiner’s responsibility to plaintiff, and was binding upon them. He would attribute no fraudulent motive to defendants, but the fact remained that throughout the whole correspondence they had assured plaintiff that there would be plenty of funds in the estate to satisfy all claims, thus lulling Mr. Robert's anxiety, and keeping him off until the crops were gathered when they swept in everything themselves. Without dealing with the motive, the action of defendants amounted to a false representation. His Honor said he could not see any guarantee had been made, but the defendants had certainly made representations which were not borne out. He would find for plaintiff for the amount sued for, with costs. Mr. Purnell gave notice of appeal. G. Roberts v. Friedlander Bros.— Claim, L2OO. Mr. O’Reilly for plaintiff; Mr. Branson for defendants. Mr. O’Reilly stated the causes of action which were—(l) a special count for breach of agreement to give a promissory note for L2OO, and three counts for goods sold and delivered, goods bargained and sold, and on accounts stated. It appeared from the evidence of the plaintiff that the defendants had furnished the extra parts of a Wood’s machine, and agreed in writing to accept a bill at four months from the Ist June. When this was tendered they refused to accept. These facts were admitted, and Mr. Branson raised the objection that no damages wore claimed on the special count. ; Mr. O’Reilly said the claim applied to all the counts, and as it was clear the action lay in the special count he would strike out the common counts. This having been done, his honor suggested a settlement, and the defendants agreed to accept the bill, each party paying his own costs. Pavitt, trustee of J. Smith v. Friedlander Bros. Application for an order to deliver up property of the debtor. Mr. O’Reilly for the trustee. This case was settled out of Court. IN BANKRUPTCY.
Be Patrick Sullivan, debtor. Application for order of discharge. By his Honor—l am a laborer, and was working on the plains with some others. I never received any money on account of my mates before I tiled. Discharge granted. Be J. Y. Ward, debtor.-—Application for order of discharge. Mr. Crisp for applicant. Order granted. Be Eisely Bros—Mr. Crisp for applicants. Adjournment granted on application of Mr. Crisp. Be George "Rickard, debtor. Mr. Branson applicant. Order of discharge granted.
DISTRICT COURT., Ashburton Guardian, Volume 1, Issue 114, 17 June 1880
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