SUPREME COURT.—This Day.

Auckland Star, Volume VI, Issue 1771, 18 October 1875, Page 3

SUPREME COURT.—This Day.

CIVIL SITTINGS. {Before His Honor Mr. Justice Gillies, and a Jury.)

HUTCHINSON .AND ANOTHER V. MARSH BROWN KAWITE. Mr Hesketh for the plaintiff and Mr McCormick for the defendant. This was a suit to recover £500 damages on account of alleged breach of contract for the purchase of gum at Waiomio, Bay of Islands.

To try the case a special jury was empannelled, of which Dr. Campbell was appointed foreman. Defendant had paid £20 into Court as •compensation. The issues submitted to the jury were, First. Is the sum of £20 enough to satisfy the claim of the plaintiffs ? Second. What sums if any are the plaintiffs entitled to recover from the defendant ?

Fpom the declaration and the evidence, the following summary of the facts is arrrived at:—On the Bth of last December an agreement was draw up between Mr Hutchinson, who is a gum buyer at the Bay of Islands, and Marsh Brown Kawiti, a "well-kuown Maori chief, for the former to have sole produce ofa'gumfield at Waiomio at £27 per ton (besides a royalty or bonus) delivered on the field for the first fifty tons, before the 10th of December, 1875, and at a price not less than £13 per ton lower than the price quoted at Kawakawa for any quantity beyond. The day after the agreement was drawn up several additions were introduced, and it was re-signed. On the 10th rumours reached Mr. Hutchinson that Kawiti did not intend carrying out his share of the agreement. A meeting between the parties ■was held at Waiomio, when Kawiti informed Mr. Hutchison that he had sold the field to another party at a higher figure. ,Mr. Hutchison insisted that the agreement should be carried out and tendered £200 as earnest of his intention to fulfil his share of it. Kawiti would not accept this, but said it had better be left in the hands of Mr. Charles Goodhue till some arrangement was made. Defendant had made no overtures for carrying out the contract and hence the present action. Defendant admitted the agreement but paid the above mentioned £20 into Court as satisfaction of any loss sustained by the plaintiffs. Evidence was given by Mr. Hutcbinson, Mr. Charles Goodhue and Mr. Thomas Hanson.

The evidence given turned principally upon the price of gum. The witnesses swore that the gum from the Waiomio field was of exceptionally superior quality and was to be well scraped. The field had not been worked before. As to price, Mr. Hutchinson deposed that he could get £50 per ton for such gum in Auckland at the present momemt. Three weeks ago he had refused a bonafide offer of £48 per ton for gum not so good. If a man was in difficulties he had to quit at a lower figure, but an independent man could always get as good a price. On Mr McCormick cross-examining Mr Hutchinson as to the present price of gum. His Bonor said he thought such crossexamination was irrelevant : the accepted rale was that compensation for breach of contract must be fixed according to the price of the commodity at the time of the repudiation.

Mr McCormick quoted a case Roper v, Johnson against thi? theory. His Honor said there might be special cases where the rule did not hold good, but they were rare. Mr. Hutchinson gave the following as the quotations for ordinary gum during the last nine months :—ln December, 1874, £45 per ton; in March, £38 ;ia July £30; and at the present time £35. Latterly the quotations of the London market had been good, but those of the American market very poor. The price of first quality gum did not fluctuate much.

Mr. Hutchinson and Mr. Hanson agreed in their evidence as to the reason given by the defendant for non-completion of the agreement, which was that the other pakeha to whom he had ultimately sold the field, owed him £1190, and he was afraid that if he did not get the gum he would baJcaru, or " bust up." Mr Hanson gave evidence that at the meeting when the agreement was signed there was every indication that defendant meant to carry out the agreement. He even brought a I bottle of brandy to clinch the bargain. (Laughter.) Mr MaeCormack declined to call any evidence on the other side, but proceeded to address jury in mitigation of damages which he maintained would be fully satisfied by the sum paid into court: Mr Eesketh having followed, His Honor Bummed up, and the jury, having consulted together, returned a verdict for the plaintiff, damages £245. His Honor certified for a special jury. PINING AN ABSENT JURYMAN.

Mr. Charles Burt, a juryman, was fined £5 for non-attendance. Mr. Burt appeared Qnriijg the case aed excused himßelf, but his excuse was not admitted.

The Court adjourned at 1 30 p.m. until tomorrow, when the case of Macfarlane v. Lockhart will come on.