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RESIDENT MAGISTRATE’S COURT., Ashburton Guardian, Volume 1, Issue 123, 8 July 1880
RESIDENT MAGISTRATE’S COURT.
Tuesday, July 6. (Before Mr. F. Guinness, R. M.) ■ CIVIL CASES. Andrew Orr v. Carleton—Summons enH larged, on the application of Mr. Branson, for a fortnight, on account of inability to ■ serve. ■ Goldsmith v. Ruddock—Adjourned for H a week, on application of Mr. Branson, ■ for plaintiff. ■ John Orr, trustee in Edwards’ estate, ■ v. Corsbie—Claim L 3 15s. Judgment by default for amount and costs, LI 9s. ■ ' Poyntz and Co. v. Foley—Claim L2 2s. ■ Mr. Branson for plaintiffs. Judgment by default for amount and costs ss. Wakanui Road Board v. Prendergast— Claim Ll 6 14s. 3d., on a dishonored cheque, amount for two years rates. Mr. Wilkie, collector, appeared for the Board. Judgment for amount and costs. ■ Hugo Friedlander and others v. Orr ■ and Co. Mr. Branson for plaintiffs ; Mr. Hi Garrick for defendants. Mr. Branson stated that Messrs. Friedlander Bros, had bought a quantity of from James Gardiner. The oats had into possession of the defendants, and the plaintiffs wished to obtain the oats, or their equivalent, L4l os. 3d. ; also L 5 damages for the illegal detention of the grain. Hugo Friedlander sworn—l am one of the plain tills in this action. Remember buying about 400 sacks of oats from James Gardiner, and produce the sale note. I delivery of all the oats with the excep - ■tion of 143 sacks, which were in the possession of Messrs. Orr and Co. in the grain store. I produce an order on Orr and Co. from James Gardiner, is signed by Orr and Co., • to the that they would hold the oats'on account. They have only delivered ■three sacks. I could have sold the oats. ■ The sacks hold on an average four bushels ■ to the sack. The price I gave was Is. 3d. bushel. ■ By Mr. Garrick Gardiner became ■ bankrupt about a fortnight after the sale. ■ John Orr became trustee in the estate. I the order from Gardiner on April 16, on the same day presented it to Orr Co. Gardiner was not insolvent at time. We held a lien over Gardiner’s to secure amount'on further adThe liens are in my safe at home. amount is about L 340. I believe the were registered. The amount of was due at the time I took the liens. is no express agreement in the liens Hvlor further advances. Mr. John Orr has claimed the oats as trustee in Gardiestate, but for his own private use. sale was on mutual account. We the grain and gave Gardiner credit it on his account current. The term on delivery” is true, because if was any balance due to Gardiner I have had to give him cash for the When I bought the grain I the state of Gardiner’s account. It ■ would have been a bad look-out if I had known. At the time, I did not know the balance of account would be. I there would be no balance to ■ Gardiner, although there were payments ■ which I believed I was bound to make, ■ which would throw the balance on GardiAt the time we had security over his grain and plant. The accounts do not enable mo to say whether there were any sums advanced at the time the ■ liens were executed. No money was ad- ■ vanced at the time the first lien was exe- ■ cuted on the Ist July, 1879. Cannot say ■ whether any amount was advanced on the ■ second lien being issued. My books are at my office. ■ Mr. Garrick—Did you leave them at H home intentionally 1 ■ Witness—No. If we had been called ■ upon to produce them they would have been here. Mr. Garrick—Would you like to have your books here ? ■ Witness—l should not mind. Mr. Garrick—Will you send for them ? H£ Witness —No. ■ [At the request of Mr. Garrick, his ■ Worship ordered the hooks of plaintiff to ■ be sent for.] ■ Rudolph Friedlander, sworn-—I called ■ at Messrs. Orr and Go’s, office, and Mr. ■ Orr read the delivery-note over, and said ■ that Gardiner owed their firm money, and H it was necessary they should be protected. ■ I went to Orr and Go’s, about three weeks ■ after to get delivery of the oats. Mr. H Orr sent his men to deliver the oats, and ■ when three sacks had been put into cart, ■ Mi'. John Orr came over and refused to ■ allow any more to go. He wanted his H men to take the three sacks from the dray, ■ but I would not allow them to do so, and ■ took them over to our store. ■ By Mr. Garrick—At the time John Orr ■ signed the note, Gardiner was not a bankH rupt. John Orr refused to allow the men ■ to take more than three sacks away. ■ John Orr, trustee in the estate of GarH diner, sworn—l claim the goods as trustee, ■ and the lasi witness has made a. clear H statement of the facts with reference to ■ the oats. I By Mr. Branson—The reason I allowed ■ three sacks of oats to go was because I was ■ undecided about the matter. I then ■ changed my mind and stopped the deH livery. I thought the safest plan, as trusH tee in the estate, was to refuse delivery I until I had got legal advice. The note E was signed on the 16th April, and soon H after Gardiner became bankrupt. I was H appointed trustee about ten days after the H delivery-note was given. I had no conH versation, before the delivery of the three E sacks, with Friedlander Bros. I George Roberts, sworn—l am a comI mission agent in Christchurch. Am a I creditor in the estate of Gardiner. , The I accounts produced I am familiar with, and I have seen them in the District Court. I The amount of security over Gardiner’s I crop was L 330 ; the lien and hill of sale I to secure the one amount. It appeared I from a case heard in the District Court I. that the plaintiffs had been overpaid. I James Gardiner was called, but did not appear. Mr. Garrick wished to have Mr. Hugo 1 Friedlander re-examined, as the .books of j the firm were now in Court. j Mr. Branson objected unless counsel on the other side wished to make Mr. Fried- j lander his own witness. * Mr. Garrick, oh such a condition, declined to put Mr. Friedlander again in the * witness-box, and r After counsel had addressed the Bench, g his Worship deferred judgement until j next sitting of the Court. John Orr v. Crosbie.—Case reinstated. Hearing fixed for next Tuesday. INTEREST NOT RENT. Skipens v. Friedlander. Claim L 72 n interest on L7OO. Mr. Garrick for plaintiff’; P Mr. Branson for defendant. , George Skipens, laborer, sworn, said d he lent on mortgage L7OO at 10 per cent. -Jo one John Moore, Chertsey. The 81 money was lent under the Land Transfer Act, and the interest was payable halfyearly. In May last twelve months’ interest was due. Went to Moore seek- e; ing the money. Moore said Friedlander tl was to have the grain under a lien, and P 1 he (Mooi’e) had no money. Gave witness m a letter (produced) to go with to Friedlander. It stated that witness had called d< for the “rent,” but having no money Moore could not pay, and asked Friedlander to pay the money. Took the tu letter to Friedlander who read the letter pi and promised to pay as soon as he got delivery of the grain. Pointed put to th Friedlander that it was “interest” wit- th ness was claiming not “rent.” Fried- in lander said it was all the same, and gave sh a written promise to pay. Thinking this th might not be all right, went and got Mr. co O’Reilly to draw out an agreement which, th on presenting to Friedlander, he refused It
to sign and asked to see my Ultimately Friedlander refused to pay the money, saying he did not know, when he gave the guarantee, that the claim was for interest and not for rent, as not being the landlord witness could not distrain. Friedlander said ho would get the grain in a month. Hugo Friedlander, merchant, sworn — Recolleted Skipens coming with Moore’s letter, but previous to that did not know whether he was landlord or only mortgagee. Read the letter, and seeing the word rent used, thought Skipens was landlord, and gave him the guarantee he sues upon. Refused to sign the agreement he afterwards brought, and which was prepared by Mr. O’Reilly, because, having seen his mortgage, I found he was not the landlord. Told Skipens, the letter to Moore put me in a false position as it mentioned rent Never said to Skipens that rent and interest were the same thing. By Mr. Garrick—Never saw Skipens, to my recollection, before he came with Moore’s letter. May have had a conversation with him on the subject of this interest in my shop but have no recollection of it whatever. I did not demand the guarantee back because I knew it was no good.’ After counsel had addressed thg. Bench, •- His Worship said he was clearly of opinion that the guarantee had been given to cover the sum sued for irrespective of whether it was interest or rent, and he would give judgment with costs for plaintiffs accordingly. ANOTHER THRESHING CASE, Brown v. Friedlander. Claim L 99 ss. 6d. for threshing 6,500 bushels of grain. Mr. Garrick for plaintiff; Mr. Branson for defendant. Samuel Brown, sworn, said 1 he threshed the above quantity of grain for John Craighead. ' Craighead wrote a letter to the Friedlander’s asking them to guarantee the price of the threshing. At first Mr. Friedlander distinctly refused to give the guarantee, but next morning, consented, and signed it. The threshing was done on the strength of that guarantee. Six weeks later Friedlander refused me the money, but offered to “endorse”— will swear that was the word—Craighead’s bill for the amount. Refused this. Mr. Branson, in a lengthy argument, contended that the guarantee was nob a complete document as the defendants had not been, apprised of the intention nfH Craighead to act upon it. He cited cedents to prove his contention, argued that there was no evidence tiS show that the Friedlanders knew the pro-* mise they were giving was to be handed I over to Brown. The only, matter for i his Worship to decide was one of law. I Mr. Garrick said this case was another I of the many-sidedness of the Friedlander I character. They were continually trying 1 to repudiate their liability, and it would I be a good thing for the ■ farmers of this I district when they removed themselves I elsewhere. After quoting the case I of Stalker v. Friedlander, heard in i the R.M. Court, Ashburton, decided in i Stalker’s favor, appealed against by the I defendants, but the judgment sustained I by the higher Court, he asked that the! bill of particulars be amended to “work I and labor done.” After argument on this I question his Worship admitted the amend-1 ment. I Mr. Branson contended that this I amendment changed the whole com-1 plexion of the case, and he asked for an ad-1 journment to enable him to consider the I case in its new shape. The application ■ was not granted, and Mr. Branson pro-1 ceded to show that no request to Brown I for work and labor done had been I Hugo Friedlander sworn—Never asked I Brown to thrash the grain and have re-1 fused to pay him both before and after he I had started the threshing. Had no con-■ versation with him after refusing him a I guarantee. I After Rudolf Friedlander had given I evidence, I His Worship said thA evidence was I sufficiently clear from Craighead’s letter to I the Friedlanders, and theirs in reply that I a guarantee for payment had been' made, I and he would give judgment for Brown I accordingly. ■ Mr. Branson pointed out that the de-B cision had been given on the question of I guarantee after all. The Court then rose. I Wednesday, July 7. I (Before His Worship the Mayor.) I ALLEGED MANSLAUGHTER. I John Walsh, who had been arrested on I a warrant, was charged with the man-1 slaughter of his wife, H. Walsh. I Mr. Crisp appeared for the accused. I Robt. Neill, constable, stationed at fl Ashburton, sworn—From instructions I received from Sergeant Felton, went to I the house of John Walsh, situate near I Saunders’ mill, at 11.45 p.m. yesterday in I company with Constable Smart, Dr. Rosa, I and a man named Murphy, Went mto I the bed-room ; found John Walsh in Rfed I drunk by the side of his wife, who was I dead, and a child was in bed with them. I Took Walsh out nf bed and dressed him, fl as he was too drunk to dress himself, and I brought him to the lock-up. ’ Did not I charge him with anything, on account of I his being drunk. B At the request of Sergeant Felton, ac- fl cused was remanded until Friday, pending B the inquest> which takes place to-morrow fl at 1 p.m. . fl DRUNK. fl James Carr, for being in a‘state of in- I toxication while in charge of .a-horse and B iray,’was fined ss. and costs. - „ v I
RESIDENT MAGISTRATE’S COURT., Ashburton Guardian, Volume 1, Issue 123, 8 July 1880
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