NON-SUITED.

Franklin Times, Volume XXI, Issue 66, 8 June 1931, Page 5

NON-SUITED.

A CLAIM FOR CHATTELS.

QUESTION OF A CONTRACT

At the Pukekohe Magistrate's Court on Thursday, before Mr F. H. Levien, S.M., J. M. Tuohey (Mr F. A. Hosking) proceeded against M. J. Harrington (Mr E. G. Foster) for £ll 17s the value of goods and chattels destroyed by Are.

Plaintiff in evidence said he and defendant owned adjoining farms at Bombay. On November 4, 1030, he Was ploughing a paddock and left a sledge, two horse collars, two sets of names, two pairs of winkers, reins and ■a square covered with sacks near the boundary of the two properties. Defendant was burning off some scrub. Two days later witness returned to •complete the ploughing and discovered that the chattels named had been destroyed by fire caused, he considered, by sparks from defendant's, property. He explained the position to defendant who expressed regret at what occurred, but agreed to pay £4 for the damage of the sldge which had cost .J, £ll 17s and half the cost of replacing the harness. Witness was agreeable to this, and added that so far defendant had paid nothing excepting that he had purchased a pair of reins, which- he handed to witness remarking that they were an instalment. Defendant had also loaned him a collar and winkers, Despite requests to defendant to settle the matter, he had failed to do so and legal proceedings were instituted. Gross-examined by Mr Foster plaintiff said he had used.the collar and winkers for five months and had then returned them because they were not value for the .articles destroyed. He admitted that lie had, subject to his approval agreeTl to take second-hand harness, something which was pretty near the value of that destroyed. He . did not consider the. harness defendant had loaned him was part of the fulfilment of the agreement, because the harness was not up to the quality of that burned. This harness, he •emphasised, was only loaned. Mr Foster contended that on plaintiff's own showing a definite contract "had been entered into and it had been partly fulfilled by defendant handing over a set of reins'. He claimed the contract could not be broken. He submitted also, that legal action had ieen taken to further a neighbour's quarrel. Had it not been for the fact that a dispute had arisen between them five months later no court action would have been taken. Mr Foster moved for a non-suit on the grounds stated. Mr Hosking contended that it was not a contract and that plaintiff was entitled to-recover the value of the chattels destroyed. The Magistrate agreed with Mr Foster's viewpoint and non-suited plaintiff accordingly, with costs to defendant.