DANEVWKE R.M. COURT.

Bush Advocate, Volume IX, Issue 727, 14 January 1893, Page 2

DANEVWKE R.M. COURT.

Friday, Jan. 13.

(Before A. Turnbwll, Esq., R.M., and

Mr J. H. Clayton, J.P.)

CIVIL CASES.

Dennehy v. McCarthy, claim £5 15s. Mr Blakiston stated that defendant had forwarded a P.0.0. for £t>. The clerk said the summons hnd not been served, and the case was enlarged till next Court day. Jas. Edwards v. J. S. Handyside, claim £44 lGs 2d. Mr Blakiston for plaintiff. Mr Tripp for defendant. Mr Tripp stated that tins was an application for a re-hearing, which plaintiff consented to. The question of costs in last case had to be decided ind ha thought the case should be heard before His Worship gayo his decision. Mr Blakiston objected. His witnesses were in attendance last Court day. His Worship granted the re-hearing suhject to defendant paying the solicitor's fee and three witnesses, total £7 Is.

J. Allardice v. A. Christiansen, claim £7 12s, dishonored promissory note. Judgment for plaintiff with costs Up, solicitor's fee 10s Gd.

Macallan v. A. W. McLaren, claim .£4 4s for professional attendance. No appearance of defendant. Judgment for plaintiff with costs 9s.

J. Allardice v. J. A. Crooks, claim £2 2s for services of entire horse Harold in 1891. Plaintiff stated that the charge was the usual one. Defendant stated that he brought the mare to plaintiff's son. He received the mare back, and paid the account that defendants son rendered, lieceipt produce! Plaintiff said he never authorised anyone to collect the money. The horse was in his charge at the time. Defendant examined by plainiiO'said he agreed to pay plaintiff when he saw the feal. Remembered meeting plaintiff on Tahoraite flat. Told him Bertie had collected the money. Plaintiff was nonsuited with costs, the R.M. saying that plaintiff could recover the money from his son.

D. V. Ryan v. T. Viddler, claim ;£-4 15s6d. Mr Blakiston for plnintiff, asked for an adjournment till March 10. Adjourned accordingly. John Bates v. T. Hennessy, claim £2 (is sd. Plaintiff said that since last Court day portion of the amount had been paid. He nsked for an adjournment till next Court day. Adjourned till Feb. 10.

Hawkins and Crowley v. Carl Schmidt, claim £C>3 9s 3d on a judgment summons. Defendant examined by plaintiff, stated that £12 was paid into his account at Waipawa every month. The Waipawa County Council cheque was £25. Half of it was his son's. The whole amount was paid into his (defendant's) account,

Got £12 last Saturday from Mr Carlson. Did notgive plaintiff any of it. Plaintiff's money had been owing a long time. Could not pay any of the money since the judgment^ £24 was all the money he had received since the judgment.— ln answer to the Bench defendant said the horses and drays were not his. They belonged to his brother-in-law. The It.M. : Not your wife. Defendant : No. Magistrate : It is usually the wife that gets these things. — Mr Hawkins asked for an order for payment of portion of the amount. • He had 'been had in every way, having actually lent defendant money to put in his deposits on contracts. His Worship said be would adjourn the ease for two months when he might be in a position to make an order. Meanwhile defendant must pay something. J. F. Wells v. Knight and Sons, Pahiitua, claim £23 on a dishonored cheque. Mr Blakiston, for plaintiff, asked that the aummons should be amended to Daniel Knight trading as Knight and Sons. Defendant did not appear. Judgment for plaintiff for amount claimed with costs 31s, solicitors fee 21s.

Jas. Edwards v. .1. S. Handyside, claim £44 IGs 3d. Mr Blakiston for plaintiff, Mr Tripp for dsfendant. The claim was for t'mber supplied. James Edwards stated that he was a sawmiller at Weber. The first he beard about the timber was an order brought by Mr Crdsse from Mr Handyside (p.mduced). He did not start cutting till the middle of July. Some time after Mr Crosse brought an agreement to sign. Told Mr Crosse he could not deliver the timber, and Mr Crosse wrote to that effect to Mr Handyside. An agreement (produced) was finally brought to him by Mr Crosse and signed. la the agreement he agreed to deliver timber at the mil!, and on being notified that the timber was ready Handyside and Co agreed to pay 12s per 100ft. Delivery at the mill meant stacking the timber outside. Timber was cut according to the agreement. It was not cut by August 30, the date in tbe agreement. The wnt weather and bad roads prevented him having it ready. Mr Handyside came up on Sept 14, and about 500 or GOOft were cut then. Mr Handyside asked him when the timber was ready to stack it outside.

Mr Tripp said he should object to any evidence varying the agreement.

Plaintiff continued : Showed Mr Handyskle the timber that was cut. He ordered some alterations, r>OOft 3to one inch. On accountof it being taken clown the river it wiukl be a better size. He looked at the timber and did not object to its quality. He spoke about it not being cut to time, but said he was to finish it, and then «ive him notice when it was done. He did not repudiate the order. He asked about the stacking, and Mr Handyside said if the timber .was filleted he would give 4s per 1000. About 5 days after the remainder was cut and Mr Handyside was notified. Do not usually fillet timber. It is an ' extra.'. Notified Mr Handyside about the 19th of Sept. Sent Mr Johnson out. Did not send a letter by him. Mr Handyside told plaintiff he would pass the timber when it was cut. Sent down twice after, and Mr Handyside refused to pay. He did not answer his note or give any reason. Mr Handyside could have taken the timber down the river when he was first notified. Received a letter op Oct. 17 from Mr Handyside, declining an order for £10. He did not intend to pay for the Hmber till it was delivered, and he could not take the timber till after shearing. He would accept delivery if it was taken down the river, and would pay 303"Trer~IUUu .excra-Trrtrwus-mmiecron-the bank of the river just below the mouth of the Cadmus Creek. The timber was not saleable, being sizes not generally in use. Plaintiff did everything he had to do in the contract. By Mr Tripp : Understand cutting and stacking for delivery is to lay the timber one on top of the other so that it can be measured. On Aug. 30 the timber was not all cut, but what was cut was stacked. It was all together, one end square. Did not know why it was wanted on a pirticnlar day. It was not always possible to get it down the Aketeo river. There was a dray road by Ti Tree Point. One lot of timber had been floated down the river. Was not told what the timber was wanted for. Mr Alexander came with Mr Handyside. Could not swear to the date. He came to look at the timber. Had not given him notice, but had told Mr Crosse that it would be ready in a week or two. Asked him to let Mr Handyside know. That might have been a week or two before the 30th. Mr Handyside was very much annoj'ed when he first came. He went away that evening and came again next day. Did not tell him it would be ready nextmorning. When he cime again he asked witness to stack the timber out. He asked Mr Alexander about stacking. Told him it would be ready in about a week. He said witness was to inform him when it was ready. He did not promise to go down himself. Mr Handyside said it might be a second wild goose phase for him to come. Mr Handyside refused to pay on the second occasion of witness sending to him. He said if witness wanted to be paid he would have to bring the timber, down himself. The timber is some heart of totara, cut according to agreement. It is worth the price on it or more. Could not say its market value ; it was worth more to Mr Handysido as it was cut to his order.

Henry McMillan, sottler at Weber, was present when Mr Handyside came to Mr Edward's timber yard. It was in September. Was standing by, and heard Mr Handyside ask Mr Edwards to stack the timber, and he would pay extra for it. Understood it was to be stacked so that it would dry. The carpenter showed him how to do it. Mr Handyside said when it was finished Edwards was to send down word and he would come and take delivery. Did not hear Handj - side repudiate the contract. Edwards told him he thought it would take about a week to finish if the weather kept fine.

By Mr Tripp : Was close to them when the conversation took place. Went to see Mr Handyside because lie had a_ contract for splitting posts from him. Was not long in their company. They were talking after ho left. Do not recollect hearing that'it was to be cut and stacked in a week. Did not hear anything about Mr Edwards going down himself.

Edward Johnson, bullock driver at Weber. Worked for Mr Edwards. Remembered Mr Handyside coining up in September. He looked over the timber. Witness did not hear any conversation. Took down notice to Mr Handyside that the timber was stacked on Sept. 19. Tjld him MiEdwards sent him. He said witness was to tell Mr Edwards he could not say when he would be able to come up. Went down again in October, and took a letter. Mr Handyside did not care about listening to witness at all then. He would not cash an order. He said tell Mr Edwards if he rafts down the timber to Mangahuia he would take delivery of it. The timber cut was very good, the best they could get in the bush. Witness explained the difference between ordinary stacking and filletting.

By Mr Tripp : Could not swear

what" day Mr Handyside went to tie mill. On tbe 19th Mr Handyside was in his office. He said he could not come then or that week. He said he would come as soon as possible. The timber is in the same place as it always was. It is worth £\ per 100 ; would not cut it for K\sk for any man. Cut and stacked "for" delivery means that the timber is stacked as it comes off' the saw in such a' way that it can be measured. Re-examined : The timber was a special order for dip timber, and was the very best. There was not a ready market for it. Part of the timber might do for culverts for a road.

W. Palmer, a settler at Weber: Had been in the timber trade since 18C3. Had seen the timber in dispute. It was fit for any purpose. It was well stacked and properly filleted. Had reckoned- tbe bulk of the timber and it came to about 7298ft Bin. It is usual to lay the timber in a block stack. It is extra to fillet it. Stacking for delivery is a block stack.

By Mr Tripp : The timber could be used for any purpose as it was perfectly sound. It was worth rather more to-day than when it was first stacked..

This was the plaintiffs case. Mr Tripp moved for a nonsuit on tbe ground that, the evidence was not admissible. They were suing on an agreement and it could not be varied. Plaintiff could sue if defendant had said he was not ready to take delivery and asked for delay. Plaintiff wanted now to alter original agreement and that be could not do. He would refer his worship to Chilly on contracts, page 161, .where it was held that if the terms cf a contract had been altered they could not sue on the old contract, a new contract in writing being necessary. He cited further cases in support of his contention. Mr Blakiston contended that there was power to vary contracts. If there was not, in the case of extras say a building, every contract of that kind would be voided. He also quoted authority to show that contracts might be proceeded with if verbal amendments hid been agreed to. • His Worship decided to hear the evidence for the defence before deciding the point.

John Stuart Handyside, sheepfarmer, Aketeo, deposed that he went up in June to Weber and Saw Mr Crosse, who said he thought he knew someone who would cut the timber he required. The result was that he left the order with Mr Crosse. There is no road to Mangahuia or even a horse track. Wanter the timber for a dip. the agreement, and on August 30 got a letter from Mr Crosse stating that Mr Edwards would have the timber ready for delivery by Aug 30. He went up to tun mill a few days after and asked Edwards for the timber. He could not show witness any of it. He said it would be ready next day, and witness returned then. Witness was much annoyed to find the timber wa3 not ready. Asked him when it would be done. This was on Tuesday, the 6th Sept. He said lie would have it ready at the end of the weelr, and prorni3ed to come himself; He sent Johnson on the 19th which was much too late. Witness was not able to go up for some time, and had to drive bis sheep down to the Coast to dip them. Had received two orders from Edwards and refused to pay them. Then wrote to Mr Edwards asking him to deliver at Mangahuia. Toid Edwards he would pay 4s per 1000ft for stacking it if it was done that week without fail. Saw Edwards about the end of October or beginning

of November, and refused to take delivery of the timber unless he -ortui^nr-nraowirnre-rmrr; — JMUiUliiaiT was not present all the time. Had been put to some expense over the timber, and had had to pay Mr Alexander.

By Mr Blakiston : There is no mention of the time of delivery in the agreement. Witness never saw Mr Edwards till he went to take delivery of the timber. Admit that he arranged that he would take Bxl instead of 8 x $, and also that he agreed to pay 4s per thousand extra for stacking. E'lwardssaid it would be ready that week, but nobody appeared tall the 19th. Do not know James Morris. Saw a man from the survey camp, and might have asked him to take timber down the river. I)o not remember him agreeing to take the timber down for j£4o. Swear he did not make that otter. Witness had only had a slight conversation with him. Asked McLoughlan in July if he would take the timber down the river, and he said he thought he would be able. Saw him in September ; do not remember speaking to him about the tinibcr then. Made no arrangement with him. On Sept. 19 started docking, and witness could not possibly get away. Tcld Johnson ho could not say when he could go up. There was plenty of water in the river on Sept. 6. By Mr Tripp : Had an agreement for splitting posts, and might have mentioned that there was some^timber to come down. Mr Handyside explained that he had been unable to attend the last Court through having to go to Tenui. William Alexander, bnilder and carpenter : Remembered making out the list of timber for the dip. It was to be stalled about November or December last. The timber would have to be stacked and dried to come down the river. Went to the mill on Sept. 5, and saw Mr Edwards. Mr Handyside told Mr Edwards they had come to take' delivery of the timber. It was not stacked : part of it was cut. Mr Edwards said it was on account of the weather, and it would not be cut for a day. We went to Weber and came back next day. Edwards then said it would not be cut for a day or two. Mr Handyside agreed with Mr Edwards to stack the timber that week, and to pay 4s per 1000. Edwards said he would come down himself that week. Cut and stacked for delivery meant that it was to be separnted from the general timber of the mill ready for delivery. " ' By Mr Blakiston: Edwards showed them one or two heaps of timber which he said was part of Mr Handyside's timber. He said he could not stack it out, and that he thought they only wanted to see the class of timber he was cutting. Edwards asked about the thickness of the timber, and witness suggested that it would be better if it was a little thicker, and agreed to cut 8 by 1. fse-escamined : At that time totara was put on the trucks at Masterton at 9s 6d ; at Christmas the price had been raised to 12s. Should say Mr Edwards' timber . was wortlj more now than when it was cut. All the timber could b6 used in general building except the 12 x 2, which could be used for culverts.

George Crssse, sheepfarmer at Weber, remembered receiving the order from Mr Handyside and giving it to Mr Edwards ; alsi had the agreement signed ind gave it to Mr Handyside. Wrote by Edward's instructions and told Mr Handyside the timber would be ready by Tuesday, Aug. 30. Had not been to the mill when the letter was written. Mr Handyside came up on Sept. 5. By Mr Blakiston : Edwards said the time mentioned in the letter. Witness believed he told him it was wanted for a dip.

Counsel addressed the Bench, Mr

Tiipp contending that the agreement had not been carried out, and could not sue upon it. Mr Blokiston re- : plied- that "the agreement had been waived by the fact that the size had been altered, nnithat Mr Hanriyside had agreed to pay extra for stacking. The K.M. said that taking the circumstances into consideration he jnust nonsuit the plaintiff, with costs ]Bs, witnesses' expenses £3 ss, solicitors' fee £i 2s. Badley and Co. v. T. Scott, claim £9 3s 3d. Adjourned till March 10. Badley and .Co. v. Alex- Mackay, claim MX 12s lOd. No appearance of defendant. Judgment for plaintiff, with costs Bs. In the case of Lee v. Mortensen, interpleader, henrd at last Court sitting, the interpleader was allowed without costs. Mr Bamford appeared for plaintiff. The Court then rose.