SUPREME COURT.

Press, Volume LXII, Issue 12364, 1 December 1905, Page 3

SUPREME COURT.

CIVIL SESSIONS

The cifril sessions were reeumed at 10 a.m. yesterday, before Mr Justice Denniston. MATHESON v. WRIGHT. This Was a case in which Duncan Matheson sought to recover from Joseph Wright two 6ums of £205 5s 2d and £20t> Os Id, alleged to be due en promissory notes. The defendant admitted the liability, but made a counter claim for _amages alleged to be caused by the wrongful removal of sheep. Mr Bates, for plaintiff, ou the counter cinim; Mr Skerrett for defendant. Tho evidence for the plaintiff was taken at tho sitting on tlio previous day

Mr Skerretfc now opened tho case for the defendant, and submitted that tho plaintiff could not succeed in tho present case, because it was brought as an action of fraud instead of one for breach of contract. Tho plaintiff, further, had not tho proper party before the Court. J. D. Matheson deposed as to tho progress of tho negotiations with Mr Wright £6 to tho purchaso of tho property by him, and. tho first muster of tho sheep,, producing the tally book. Mr Wright had not complained to him of the sliortago of 2000 sheep. Tho vritnens was lengthily crossexamined by Mr Bates. His Honour said Mr Bates must, as the caso was now developing, rely upon what was practically alleged sheepstealing and fraud. Duncan .MathawHi, jun., deposed to b?ing in charge of tlio Brookdale station from 1901 to 1903. Ho remembered driving a . mob ot ewes from tho Ridg°s to Butler's farm, because of tlie shortage of feed, .en tha Brookdale country. The sheep were there about a month., when they wero returned to Benmoro. . This was before plaintiff came on the property. In-reply to Mr Bates, the witness said that in 1901 thero were 5000 sheep on Brookdale, and 6000 in 1902. Daniel Matheson depesod to the driving of nbo.it 500 owes to Butler's farm on account of shortness of feed. They wero returned to tha station before Mr Wright camo to the station. In December 190-,. there was a bad muster, somo 200 sheep getting away in tho foggy weather. About 100 sheep were e °Jolin C Millikcn deposed that in May, 1903 ho bought Brookdale with 2300 sheep, trusting to tho tally balance up' to 6000. There were about twenty • Benmoro sheep at shearing, which Mr Wright took away. Tn cross-examination by Mr Batee, the witness said ho might havo said to Mr Wright: "Yes, Mr Wright, you bought those sheep, and I must havo bought them too." Duncan Matheson, sen., deposed as to tho removal of tho sheep from the Ridges to Cutler's farm owing to scarcity" of feed. They wero returned to Benmoro before Mr Wright camo into th*'matter. D G. Matheson gave evidence as to the removal nnd return of the sheep from Benmore, and the circumstances connected with tho sale to Matheson and Wright. •■.,■,, . , , _, 4 J D. Matheson said that ho liad not heard of nny shortage in Wright's sheep during tho first year after they had been delivered to him. and had nob heard of any shortage till shearing timo, ]_)oi, and it had come to his knowledge then because there had been general talk about tho losses in Canterbury during the winter of 1903. In reply to Mr Bates, the witness said that he had not left New Zealand in a hurry in 1904. He had gone from Springfield, in March, nnd had left the colony about tho end of July, with his wife, leaving instructions . that letters for him should be forwarded to his solicitor at,Christchurch. "Before going away ho. had not [heard that Wright intended taking action against him. Ho ►had -h«.ara'ia. report among -his. hoah-that Wright had alleged that some of his sheep ha'd'been on witness's property, but Wright had had no- just t-anso to niako an accusation'against him regarding tho shortage in his sheep. When he had left Springfield in March, 1904, he.had burned all his old papers and rubbish.

John Georgo Bendely, chief clerk in tho Christohurch office of the Lands and Survey Department, gave formal evidence, and the caso closed.

His Honour, in giving judgment, said he was anxious that moans should bo given to Wright to establish his claim, and that, ho mero defects as to form or parties,would bo allowed to interfere, but he was hound to say that he did not- think any possible amendment or addition of parties could on. tlio evidence before him cnablo anyone L o suggest o reasonable ground for.saving that such a claim could bo established. W right, it seemed to him, had acted with a great deal of looseness and carelessness m tho matter, and while ho did not. suggest for- a moment that there hod been .anything unfair on tbe part of the other side, it was quite clear.Wright had only himself to thank if thero bad been any question of failure of consideration, or if ho had been misled apai_t .from any question ot fraud as to his position with tho other people If the question as to the shortage of sheep had been brought before him in tho way of nn ordinary civil action ho might have gone into "it. but a charge had been mado practically cf false representation and conspiracy. It was a charge of fraud of the grossest kind, amounting practically to theft, and such a claim must be established unambiguously and conclusively, but the evidence did not.go that length. Wright had acted foolishly aud carelessly. There had been great delay, for which he did not know which party was to blame, but the delay would hare made it very difficult to get at the facts if they had materially in dispute. It was impossible to avoid noticing the fact that the defendant, with a full knowledge of the facts, completed the partnership months after he was aware of tho facts," signed tho partnership deed, and gave tho bill. In tho face of that conduct it could not posibly bo suggested that Wr'__ht' could succeed. Judgment would bo for tho plaintiff on tho claim and counter-claim.

LATTER v. PARSONS. /Robert Latter, of Barry's Bay, commission agent claimed from Edward Parsons, of Kaikoura, sheep farmer, the sum of £100 commission, alleged to be due en tbe sale of the Parikawa estate at Kaikoura.

Mr Russell, instructed by Messrs Meares and Williams, appeared for tho plaintiff, and Mr Stringer for tho defendant.

Tho statement of claim set out that on May 28th, 1905, the defendant requested* tho plaintiff to endeavour to sell for him the lca.s_.hokl estate situated at Kaikoura, and known as the Parikawa estate, together with certain stock thereon. Tho defendant agreed with ; the plaintiff that if ho sold the estate and stock, he would pay the plaintiff a commission of £100. The plaintiff sold the estate, but th© defendant refused to pay the commission. I Tho statement of defendant contained a. denial that tho defendant had requested the plaintiff to sell the property, hut stated that the plaintiff approached ' the defendant, by letter, asking him if ! his property wore for sale, and if so, what tho defendant would accept for it. j To that tho defendant replied, saying ho j I required £4500, and if the plaintiff ' could cans© a Kile to be mad© at that figiire, tieai the defendant would pay him a sum of £100. The defendant denied that he agreed with the plaintiff that if he sold tho estate and stock, then ■ the defendant would pay & commission of £100. Tho defendant denied that the plaintiff sold the estate in terms of tho ( arrangement, but said that the plaintiff found ono Stanley Lelievre, who

entered into negotiations for the pnrobaso of tho property, and ihe negotiations afterwards ■■fell through, and all arrangements were cancelled, because tho said Stanley absolutely declined to complete the. purchase. Robert Latter, land and estate agent, Bariy's Bay, gave evidence that be\had sold the Parikawa Estate to Mr Etienne Lehsvrc, who bought it tor his son, Stanley, et the prico of £4Cofl. An agieement was entered into with Stank'j Lc4ievre, who gave a cheque foi £200 deposit, which was dishonoured. Later Stanley Lelievre objected to complete, on the ground ofill-health. E'icnne lelievre, sheep farmer, Akarca, stated that he had told the defendant be was purchasing the prc- | porty for his eon. The 6ole reaon why ; his son did not carry out the purcfiase j was on acoount of his health. Mr Par- | sons insisted that the purchase should Ibe completed, and his son Stanley left Akarca for-Blenheim, in order to comI plete, but he intended to get out of *it | if ho could, by finding another buyer. } Stanley Lelievre said that when he | gave his cheque for £200 ho told Mr Parsons that he had not tho amount in tho bank, but Parsons replied that Mr Ktienno- Lelievre was buying the place fcr him, and would meet the cheque, and Mr Mcßae, Mr Lattor's agent at l Kaikoura, sniS. that Mr Latter would ! hold tho cheque, until ho (witn r s.) got back to Akaroa. When lie returned he felt that his health wou'd not allow I him to work tho property, and he a>-k r d ito be relieved of his contract, but his request was refused, and he went to Blenheim to complete. Whi'o away he j met a Mr Moore, who bought the pro- ! perlv from him for £3-00. This closed the case for the phrntifr. George Emund Parsons said tha Lelievre had stated that he would com plete the purchase if he could, and ha«* remarked subsequently that foe would explain his health to the "Land Board. It had D*M_n pointed out to Lelievro tba' the Land Board had accepted him for j Flaxbourne, and probably accept him. for Parikawa. When Lelievre had offered £200 to witness to get out of hi* contract, in favour of Moore, ho had accepted it because witness was running a risk of losing £400 which.he had paid as a deposit on another property. Herbert C. Henderson, n. member of the firm of Moore ond Henderson, said that he had been one of Uio purchaser:', of Parikawa at £3800. Stanley Lelievro had stated to witness that ho hat' committed himself to the purchase of the property, arid witness had said tliat he would find a buyer, intending to buy it himself. Witness had arranged for Moora to inspect the property. t Witness had also seen.a Mr Mouat, Parsons'.' ■agent, and had been told to go tc lelievro. Witness and Moore had gone to Lelievre, but could get novhine definite from him, as he did net seem to J Imow what he was doing. After Lelievre had got his quittance from Parsons, witness and Mcore entered into negotiations for tho property. ' ' John Mouat, a land agent at Bleni heim, said that after Lelievre liad got I his clearance with Parsons, witness had i effected a transfer of Parikawa to Moore. Witness had not expected a commission, but .about tihree weeks ago, Parsons -had givpn him £50. His Honour/said that he thought Mr Latter had been badly treated in the matter, but it was a question whether he was legally entitled to money. Hi*; Honour, in giving judgment, said that Mr Latter ought to get something: for he had certainly worked the sale up. Tlie question, however, was not whether Mr Latter ought to get the money, but whether ho was legally entitled to it. It seemed to bini the matter Mas narrowed to the question whether the transaction actually carried out Mas a bona fide one between the parties, and he could not find .that the others had conspired to do Mr Latter out of his commisfjon. If the de-fer-'ant, after tihe first transaction fell through, ran tho.risk of going without a purchaser, then Mr Latter had not earned Ids commission. He regretted, he confessed, to como to the conclusion that; Mr Latter had net established his . There were .some matters about the case which he did not like, but he wok not prepared to allow his wish to see that Latter got his money to interfere with tho legal aspect of the ease. Tlie. caso was a very hard ono, for a great deal of trouble had been taken, which had not succeeded in the M - ay tjiq law provided for, although it had succeeded in effect. Judgment M'ould'be for the defendant. ' .->•

Mr Stringer said that Mr Parsons had been willing to do what was fair, and had offered to divide the £100 between Mouat and Latter, but tno had rofused. .'-><__ Tlio civil sittings will he continued to-day.