MILKMAN’S CLAIM.

Gisborne Times, Volume LIX, Issue 9573, 26 July 1923, Page 2

MILKMAN’S CLAIM.

PL A TNT] FF NON-SUITED. The case in which Albert Phillips sued George Davis, for the return of certain chattels coilnect-ecl with a milk-vending business, was cor.tinned before A,ir E. C. Dewey, S.M.. in the Magistrate's Court yesterday. It •was alleged that the chattels had been wrongfully seized by Davis under a security. Ur A. A. Whitehead appeared for the. plaintiff, and Mr F. \Y. Nolan for the defendant. The plaintiff, in addition to the return of i.!ie chattels, elnnr-eu CloO damages for loss of business as the result' of the. KCMBure. Mr Whitehead contended that the cases quoted by M'r Nolan were not in point. In this case it' was well known what the property was, and specific mention was not necessary. There ivas, ho continued, actual proof of conversion, and that plaintiff had suffered actual loss of property. He submitted that Mr Nolan had not sustained his non-suit point. William Woods, a retired fanner, said he was the person who was going to finance, the plaintiff. The. plaintiff first approached him on the Ki 11, when witness promised to supply tin- money. 1.1; was required for that, evening, and was. as a matter of fact, supplied that evening. The. plaintiff had told him over the l.ele-

i phone, that the money was fortli- ! coming and would he available that evening. The money was paid by means of a, cheque, and he had his cheque-book with him. He advanced up to the full amount shown as tlm value of the security in the schedule. His motive was to help the lad out of his difficulty. John Russell a schoolboy, gave evidence of having been present ai an interview between Davis and Phillips, in which Davis asked Phillips to take a. w-nn named Wilson in the cart, and if he did not do it, he (Phillips) could not take his property off the picmisex. James Henry .fames, a carrier, said that lie had received 'instructions in writing from Phillips to get some chattels from Davis, which he was to take .away to Woods’ farm. He did not bring a. milk cart, nor any milkin"- utensils' away: 'This closed the ea.se for the plaintiff. Mr Nolan submitted that although the defendant had a- perfect case on the- mm its, the east must fail at this stage because of tbo total absence of evidence to show a demand- for the .goods, and a refusal to deliver them. The only evidence tendered to show a. conversion of property was that of Phillips, who said lie saw the cart being driven away. Counsel quoted authorities to show that in order to prove conversion of property, it had to he shown that a demand had been made for the. goods, mid that the demand .had tieen refused. His Worship said- that the. point put hy counsel for the defence was that the evidence should disclose the fact that there was a demand for the goods and that the defendant had refused to deliver the goods. The authorities showed that on the first point a demand must take nlace, and that the 1 demand must bo for specific goods. In this ease none of those conditions had been fulfilled. There had been no demand by plaintiff, and no refusal hy defendant. was only the order given to the carrier tor the recovery of the jfioods, and this was net sufficient. In any case it had only taken place after the bringing of the action. Jn this case, the facts did not show that the making of a demand was impracticable, and the plaintiff should have made a proper demand before taking the action. On these grounds the plaintiff would he non-suited. Costs would bo. allowed to defendant.