RESIDENT MAGISTRATE'S COURT.

Hawke's Bay Herald, Volume 15, Issue 2016, 23 December 1870, Page 3

RESIDENT MAGISTRATE'S COURT.

, . TUESDAY, DECEMBER 13. (Before Singleton ltochfort, Esq., 8..M.) Simon Webber r. Frederic Martin o?iapman. — Claim £15 for damages sustained by the plaintiff owing to the non- execution of a contract for the delivery of staves by. the defendant. The plaintiff conducted his own case. Mr. JJee appeared for the defendant. Plea—The staves had been delivered to and accepted by the plaintiff. . Simon Webber, of Napier, master cooper, being sworn, deposed : — I am plaintiff in this suit. I know the defendant ; he lives near Te Autej 28 miles from Napier. In Augustiast I sent an order to him for 1000 staves for tallow casks. It was in writing, and bore my signature. The price of the staves was to be 14s. a hundred ; and they were to be a full inch thick, five and six inches in width, and 3 feet 7 inches in length : some were to be five inches wide, and some six inches. The. defendant has the order, and I request him to produce it. (Mr. Lee produced it; it bore date August 10, and corroborated what the witness said.) Sometime in September, I received from the defendant. 247 pine staves. I examined them, and told the carter who brought them that they were not according to order'; and I requested him to tell the defendant that I would not take any more from him, unless they were such as I had ordered. I used the best of the 247 in order to execute a pressing order which I then had on hand ; I did not return them. 50 out of the 247 were not usable. I sent defendant word by post not to wend me such st&^es, repeatingmy foi'mer directions. as to thickness and width. (Herf MV7 Lee 'pW in r lhe- letter referred to ; it bears date October 6). The defendant, in reply, sent me this letter, which is dated October 11. After this I received 650 more staves, that is, the carter brought them to my place, but E refused to take delivery, because they were not according to order-; they were worse than the first lot. They were deficient in thickness and width, but not in length. Having examined them, I requested the carter to take -them-back, asthey were not such as I had ordered. The carter said he would not take them away, as he had a load of posts to take to the Spit, and lie discharged the staves on a piece of ground near my shop. The carter having mentioned that the defendant was in Napier, I asked him to request the defendant to come and see me^about the staves. I asked him again, next morning, to do so, as the defendant was still in Napier ; but the defendant did not call at my place. -The staves are still where the carter threw them down. I wrote to the defendant again about the staves. This is the copy of the notice which I sent him. (Copy handed in ; it is dated October 25). Afterwards the defendant sent a man to my shop with 100 more staves. They were as bad as the 650, being equally deficient in breadth . and thickness. Many of the staves in the lots delivered were not thick, whilst others of them were only three inches wide. (Here the witness requested permission to leave the box in order to go outside and bring in a bundle of the staves which he had brought to the Court, as a fair sample of those sent to him by the defendant. Permission being granted, the witness returned immediately afterwards with the bundle. in. his arms, put it down in the Court, exhibited the individual staves to the Magistrate, pointing out their defects, and then re-entered the witness-box aud continued his evidence.) The staves now before the Court are a fair sample of those sent me by the defendant. The non-execution of the order by the defendant kept me out of work for a month or 5 weeks. I earn 12s. a-day, or £3 12s. a-week. Uaring the time I was idle, I made three or four little kegs only. I had to order staves of other parties, in consequence of the non-execution of my order by the defendant. Had the defendant sent the staves such as I had ordered, I should have made 14s. a-day. I had orders for some casks, and others I would have made for sale. I did not take delivery of the 100 staves ; I requested the carter to take them away, which he did. The defendant called on the afternoon of the same day about my refusing to take delivery of the 100 staves. I told him they were bad, and asked him to go and look at the other staves which his carter had previously deposited near my shop — the 650. The defendant declined doing so, but asked me to go to the pump opposite Sutton's to look at the 100 staves. I refused to go, saving I would not take delivery of them. The defendant then went away, but called again in about a week. I shewed him the 650 staves ; he looked at one, and said the lot was inferior. He then gofc into li trap, and I did not see 'him for a fortnight, when he returned and presented - me with his account, which I refused to receive. This may have occurred about a month ago. I told him that if he did not tuke his staves away, I would sue him for damages. On the 26th November, he sent me his account with a note by post. The account is for £6 15s. I put in the account and note. (Here witness hauded them to the Court). Cross-examined by Mr. Lee : — I had not used up the whole of. the 247 staves when the second load was brought to my shop. If green staves had beeu sent, I would have dressed them. The staves were white pine ones. • .Pine shrinks a little more than other timber, by reason of its softness. The staves were not seasoned. I had to dress and put out to dry those which I used. I have had 9-inch sawn timber cut in two ; such staves sell at 10s. 6d. per 100. It is dearer than split stuff. I was 12 years in the cooperage business,, on. the Labrador coast. The staves iise,d there are made from split oak. I. used white pine for three years at the Clive boiling-down establishment. I left there because there was no further work for me. I helped the carter to unload the first lot of staves. With respect to the second load, the carter had thrown some of them down before I reached the cart. I did not count those on the grpnnd. I examined them, and told the man.l would not take them. I examined tliem on the dray ; they were worse than the first lot. I make tallow-casks only from white pine. I ordered staves of five and six inches in breadth. I never bought white staves before on my own account ; but I have worked such staves up. The casks in my shop are made from sawn white pine. The carter only said ho had orders to deposit the staves at my place, and, on my complaining of their quality, he said I wanted sawn instead of split stuff, and then drove on. I can make casks with staves of one breadth. To the Court : — In making tallow casks, I use staves of different sizes, as they come to hand. I have used none of the 650 staves. When they were left at my place, I had an order for casks amounting, in measurement, to several tuns. I had to tell one person who wanted casks that I could not make him any, owing to the want of timber. DEFENCE. Mr. Lee, for the defendant, said that a person following a handicraft trade ought to know the nature and quality of that which he orders in order to work it up. Split timber is not as even as that which is sawn ; the plaintiff must have known this, and that he who requires split stuff to work must give and take, and can only expect an average breadth iv staves, as

care, will be a little less than^tfi|cex|6sfS3f .dimension required and ■-:sqme^flS>)ifciii|p^ more. He would prove t^at^he plaintiff- S?, assisted, the carter iv luntoaHfng: l&Mfl second: lot of staves from ttievfagg^n^l^lS wjell as the first, and thatUhe'tflijcdlptvHv consisting of 100, had been vDOttowed;. - : fiiom the boiling down establishioent'afc^i ?- J Gjive, and were picked staVesi^?^^-^^ A I James Butcher, of Te Ante; : '''&jffistif$ J yi bpirig sworn, deposed :-^l< . kno>v~ tjie- ].\ defendant. I have been spme^.tweiity ;;v.n ypars employed in the bush.^l aplifabopit^ f 4000 white pine staves for the^defe^dantf- "5 f They, were to be 3 ft. 9 in. in . lengtli, but' " If allowed an inch or two more.- Whitfe} K pine shrinks much more than ;oth;e|j^inds : M of wood ; 5 inches broad will ; shnnfc to?: <! ~ 4J. Timber does not always run straight; < : '--. nor can staves be split of an exact breadth. ;;;V To four palings I allowed an additional 1 t inch. If the plaintiff wanted staves one ;■ inch thick when seasoned, he" ought to;/ have ordered If inch staves. There isif'v great difference in the hardness of woods* ; The 4000 staves were split in the usual • : way. They were good ones, and Itoqk: /: pains in splitting them. Some '"staves/" '■'■■ will be defective, notwithstanding, the: '\ greatest care. Timber cannot beirsplifc; "/ with the same exactness with 'which : it can be sawn ; the saw even will not go straight at all times; and splitting, isr iSttllti more difficult. The 4000 staves were as I Kbod as any that everwent out of the forest. "" ■ "-■-••-! ■ - '■ "■■ Cross-examined f>y plaintiff.^Kam a splitter. (Herepneof the staves is. sjiawji : : V to the witness.) 'I think I'spirt'tßat st'a^e -h^--' it is not an mch 1 wide in tnis part, BStißis ; , in that. The second Btave shewn' me;is ', fr^m two'to th**e inches wide; 'l cannipf?^ say how wide it was wheUsplit ; ISfiiifctTe •* s ~ more than half an inch thick in. this jjarij >.I do not sell staves; I work for qtuefs. i '■ I think the defendant ordered 1000|'|>ine , staves ..of/ me. for. the plaintiff;.;: :%'M^Mj^ stood the order to be for stave?, from^qtir :; : to five inches wide; I never understood : any of them were to be six inches wide. r : r .Re-examined. — I knew the 3000 slavesreordered were for the boiling-establishment : <J at Olive. I split all in the same way; ' In r; splitting, much will depend on the quality ~ ; of the tree. Robert Elliott, of Poukawa, carter, being sworn, deposed : — I know the plain- ; tiff and defendant. I saw the plaintiff on the 14th September, when I delivered a ' h - load of staves to him — 250 of white pine and 50 of totara. He assisted me to na- ■'.-.- load the dray. lam not sure if he coin;plained of their being inferior. I subset- ; quently took a second load to his place; about 600. I saw the plaintiff before I discharged any part of the load. Finding myself too far from his shop, I took ont the shaft horse, but, perceiving a number .; of broken bottles, I refused to back the^. / dray nearer the shop. He said the" dray ' . - would answer where it was. When .he made his appearance the second time I had thrown down about 100 of the staves. He ' asked me how many I had thrown ofij and. I said about 100. He counted them, and 1 " then got up on the dray. We then discharged the remainder of the load, each of, : us throwing down two staves at a time. He said that many of them were unfit for his use. I said they were the same kind- "'.. as those which I had delivered at theboil-ing-down establishment at Clive, and that no complaints had ever been made; about : them. At the defendant's timber yard, the staves were stacked in parcels of 25. I could not have brought 600 green staves' on my cart to Fa pier. In seasoning, the" >; staves lost much in weight. The plaintiff and the boiling-down establishment were supplied from the same stacks At the boiling-down place, there were no .com- .-, nlaints ; all persons there said tfee staves ' ' were the best they had seen in the pro- «■ vince. The second load which -Jputilown ~ at the plaintiffs was taken from .the samo;^,. stack as the first load. I told the plaintiff v% that I thought sawn timber would;. not'/, satisfy him ; that he was the first person! I had heard complain of the staves. He had made several complaints about the cv. second load. I suggested that he should ' * place the unfit staves on one side, .and t arrange with the defendant about them. T I have been carting for the defendant for the last 10 months. I havedelivered wire .-'-. posts. According to usage, they are taken on an average ; some more,- some less. Picked posts cost 10s more than ordinary ones* I did not deliver the third . load, but I handled it. When the carter who delivered it was at the boiling-down, establishment, I borrowed 100 staves from the manager, and had them put on the dray. They were picked staves, and were taken to the plaintiff's in Napier. They ' were picked because the plaintiff had complained of the previous load. The plaintiff aided me in discharging the second load ; I did not discharge the load against . his will ; he did not tell me to take them away again. ' = Cross-examined by the plaintiff:— l did not discharge any of the second load be,- --■ fore I had seen you. You did not examine the staves minutely on the cart, and then go down; you remained on the cart, • and assisted me to unload. You said the load was long in coming. I did nbtrsay'l had to take a load of posts to the Spit ; my load consisted of the staves only on that day. You said nothing indicating a wish that I should not discharge the staves, but you occasionally remarked that they were not according to order. On that day I told the defendant you wished to see him, but nothing more. On the next day I told him you were complaining of the staves. I said you wanted sawn in-, stead of split stuff. A half inch makes % \ great difference in wire posts. Phavifr/ ' seen many casks made of 3-inch staves'," only, and they were good casks., .1 am not a cooper. **• $ . William Adair, of West Clive,;coi&pefr, . being sworn, deposed: — I work at « the 33qiling-down Establishment at West Clive, where I am employed in making tallow casks. The-staves are supplied by the defendant ; they are the best I have used in Hawke's Bay. Elliott, tfieiasif ' witness, came for some; I saw the, ones he took away ; they were taken from the heap I was using. I know no reason why they should have been condemned. . Two or three of them might be bad ; a few bad ones will be found in every lot, but they may be made into small casks v It is not necessary that all staves in a cask should be of the same size, but all must be nearly / of the same thickness. I cannot get fine, staves exactly equal in breadth and: thick- . ness. If ordering staves, t would^'expeot them, when delivered, to be unequal, but not all. The staves I used were, some .4ffc. in length, some 3ft. llin. ; I cufc.them- / down to 3ft. 6in. About three of the > casks I usually make contain a ton -.--' weight. •...-• „ Cross-examined by the plaintiff:-— I - know nothing of the order given by you to the defendant. I ordered staves myseKfor the establishment at Olive. : [Here , plaintiff shewed the witness one. tof. the- „ staves in Court.] About thirty-three or ;i thirty -four staves of this size would make . -> a tallow cask. [Plaintiff handed withesss;;.; another stave.] I could not rise /this/ stave for a tallow ~cask, nor would -JSxtds;;^f the third one you have shown me;^jaqv:?^:-' the fourth one. We have used *15gQS^jl/ the 3000 staves ; the rest will be T^Sdiifi|if?? due time. They were sent tous^ilhe" / defendant, and are fit for use. 1 If^^dfr/)? examine the whole of the 3000. ;st3j| e't^ai^^ I used them according as they 4 '^r^j|£s!&i quired.- . . ' . '. ' ■-••"• f r ' :^'- : lf^^:v£ioti Re-examined-.— You will seven bad staves in every. iOO^f^if»;a||j#; ■ '--'" " " .- " : -" '■ '-■ ~^'^^sM~ J^?

l^^'^^Ltnqf^fcf&tat^sstippliecl 6y other - J^f||g^^fi^|h^'.tOi^3ect;2sj out of i^s^^^^elc^^r^ Ghapban ..ofPouTrawa,; ftffi^ilfeljtsb/rfhad^a conversation with; ; yai^hi^r^. : ; it iLwps; ; then f*^upmYpg^ttv? boi)ing:4owji:esfcablishmeni;, . S?3Sl'sfir|t:ab i3s. . ■ Somettime. "afterwards I ::%^i^a;frop thejvplaingff ; the ; le.tter put &agfi&mto <|o business in- the -kind of ti\?n supplying • si pure, .fetters passed ■^lS^p^iJW^tfMx^eß were then cutting CstaT-es',-:- and >I gave, ■ them 3ill^E#i>iplifc 1000 l 'f?V.^ e ■, plaintiff. ?i!SJ|eippngth, according to the o^der of [^p^lgl|ihtiff,^ould be less! than those I r^^^%f§miß\iin^ tjQ i}ie establishment at |fS^p^,^howeyer,^pnt, i him the" longer. Plli^MiThe staves, when split,, aro piled ft^hje^i^^e^engths! vary; I told my felfcSt^^lllpilpib ;Elliqtt r tb.take the staves lie had ordered. lf?^Bi«y|%ersnpt ;pick^,J)ut taken in the P|pi^i»i^yCatiS^regQl4^W m ' the stacks » ij£^^^a^Cs^^fey^^i^^*! 1^ boiling down i|^|iS)W^hßeay^S|>|u>plie(3. .[ I .learned :^^^/J^%<dOpteir '.that "the plaintiff was disK safisfi^d) with^ tie' sta,v^s v sent.- I saw the fe^pfajjttW^i^ npt say Pi' the^iS) tast^s^nt were inferior^ After the f;^j>lamljff: bad refused to" receive them, he ji'spbttiiof ; tfre imferiprityf of ; the.- timber ; : v "bt^j* in ;^ Swend}yctnaiinsr,, ; - He :refused to > i< cbme'i to tlie jarkyz and; took at the 100 : ':'%aye|lV^^Uo*^ ; safl.'5 afl .'^ c 9 r staves i£_ia^AisYsliop^wJien'irsaid. I would make a ( senttp the boiling-dowja t :^||l3blSE!a^pl^at < Olive, we're ". condemned — Mr. : P^d^e^. askedVme • to.,coine anjl see you.. ;SB6yj{^Kq staves. 01 called at' your place, , ; faW4~ypU:vsppke of (getting, some '. afc ..the , r? "V^airoai'^ltou ! isaid^those. yqu wanted -inch thick ; ; but Ldb not ;. : XfJeggspclfeii h y.QU.- men fc\oned. their length | y .^3|.bread^h,^. I ! idq not recollect Elliott r-^;SU^g.-^Vini'^?Rier.' t tO-:pall.at your shop ; £ -;:l>§t*W;|[id/ s6 after I had reached. home. '\/'-i- : "db^'flotVTecolloct ; if I called on you im- ;' me^dwteiyjafter f the . delivery ; of the 650 i/iVstWf^ajjjTDuf/'I 314 call some, time after\..i iwafdsk;*. -i^oiy %sked me,.;.pn. the 24th ; T ;Noyepiberi to I°°^ at the ; 650 staves., I iw:'skv&'\BQm&:.-;o£/, them, were inferior ; but I ' ;? did^nqt say .the. .whple;pf the jot was so. ;; ; I-ifited you. tp pay your account ;. but V ,; you JTefusedjr.saying; the staves would not ' :, : suit yp'u^thafc ; they were not according to /:' qrder.,: 7 fl r^afterwards forwarded my J iraccptint: £ to you, with a note requesting ). I : paymgntv ";■. - ':'■-■'.':;•:■,''. .'■' . ,- • \-_ , .fyefQjourp :'rp'se. about; 5 p.m.

. WEDNESDAY, DECEMBER lV

'•;," s:^fiijfs>bes :^fiijfs>ber T?j. dhapman. '•-+ The further ; Ibtfeftl^g: of tlaV; case was Resumed this i :^vMTi : li.cc "addressed the- Court for the i;7£vdefenda6fc inconsiderable i length.. There rfjwa^a^iscrepancyjh tlie evidence of the cl plaintiS", : who, fit V appears, prdered the ■i-^/B^VSfin'^ulyjand'.'not" m. August. The ';: r i:epde^6e bf^f.utcher shews that tike staves .i"""V-3?e^aii""inp|iVtljiict, when,, cut, and that ■pi^ej^ves contract in seasoning. Timber - Qannotirhe split' mto lengths and bread ths can i; Ij-;'v:_J)jß,^%wn1 j-;'v:_J)jB,^%wn, "arid the plaiutiff was well aware jj s -o£(|liis.when^he : gave his prder^ he was fe>well;|i^ar<B> pp.*ilicpdiflejri?ncV in shrinking . :. Ibak'.and ; white '^pme:-.." v Elliott ?--v:--^^ovedV ! 4li»S>;-';aH'':''the. ft a^ e s seut^to the i the .establishment . af Cli ye -; i^i?|rs'Baspned, ;-and -taken .indifferently. ;• '-■'* .; fr^ci| : %e; same jyles ; that the plaintiff > : .aided/Jliitn fin unloading the second load, ; aSdjjtliat he "merely said, in reference to r -- '. -the/lot, that iomc Few of ; them pnl^y were ; .Bad. The > 'plaintiff did not apprize/ the defendant' with aufQci^nt promptness of his intention not to talcj delivery of the stives, which he bughfc'td^aVe dbne.Tlie witness Adair, himself a: cooper^ and engaged;; in making tallow casks at the boilin^doWn. establishment atfOlivewith • t^sajne Icind of f taves r , stated that the .; ( / Staves iwere; good,/and wellTfitted'forthe ■■;~'^TOpkr^Tlie^!deliyery';was';m;ade with all ; .' the. state' of thp Te Aute - .v^oad^mHSeptember and, October, would ?-';-;-;--''a|(^ifcj;;' ! '3[n'..aj word, ,the, defendant had ■\ vrPtifoiffflftd liis Wrt of the contract, and -r -'? : . Vt% plaintiff; so far from bringing this suit, 17 ..: dj^Wfcto have paid him for the staves at the time the defendant presented his account. ; . j ! ;ijintitled to damages at all, the plaintiff }j-i: :.'dould ; , only claim the difference between >: rthe./contract. and the market prices of : : '^:\ staves."^;. • : ,^:-. s . - : .^\ ,^ : ; ; ;,:.. ..'•.. The. folio wing is a; copy of the plaintiffs bill of particulars,^ y\z. :— - > r £#]; v ■'-.:'-"- r" Napier, 31st N0r., 1870. *'X Simon "Webber, hereby take summoQSvagainst F. M.. Chapman, of Pou:—;V- tawa, fa recover the sum of fifteen pounds sterlirig,: damages caused by the said P. " Mi s iDhapmanj tor fraudulently discharging pnthey eighteenth of October last timber ; iinfitlfor my use and entirely against : :- - " bjrdgri^.^. .;■• ■' .-■ > -".. A After ]^tr. Lee had finished his address, tHe: Magistrate, having looked over the bill pf ;; particulars, addressed the plaintiff to,;Jbh|^effeet following :— Mr. Webber, at tJigjpgßnjng pf the proceedings in this suit, -yeßjt4rday,: I perceived, on glancing over ... : , rjotaj^illof.particulars filed in the cause, •">---.; thatttiere^was .something of the primitive I in, the^ompositipn, and I also noticed in sv; : it^hlftjFprd ;^ fraudulently," ivhich l knew a, document of the kind. ■Xo.i?J}&sg t ?ho&gfef, aware: that .£he!document K?^f in th&Go.urt, buried in some 1^ : ; ?pj|etetojexpr cupboard, I thought it not interrupt the proceedings ' r -:\-~~-- : -ss^sity ! ityPty*<P im «J- . n ?s not, Hpwe.ver, ~ iflsjei^^^jojy Blind) at i§6 time, the'fapt - have c-i-v fcbe^^^v^d^b^^.toVdefendant, and that ;;, : /:^^ it>w.as;,ihTiali?.iprol>a.bilitj;rßeen by one or . : ;«ther o£- Ithe- members of- his family. I ? h,ave>BinQe, learned that your attention was ■ Xvdalledjby Mr. Hare,,the clerk of the Court, £_'■:-- ; the word, at the time ";;«;.>: filed; your suit, and that, so far from :^"r le^rei^ingvthftpks for the information iy;;f;o6s£&Umc&ted, and correcting the error, Kft ;pf|yQft c wf.re;wantingan,respect towards him. %S:V|3\lr^ lig&f'^L;. bejiisve, did say something, ?vt:;j r i^es|er3ayjr about -the -word, but laid no C- I; v>jß^ejßs3upbn .its-use. Had my attention : iSM^nf^piarticularly called to the word, yes-?(]'-^:<*^3aylp? h&d I recollected that a copy of ..%g*:;i%th|ibiil>jpust haye^been served on the de/;g§;^f§ngaßt,;iI ir wpuid most certainly, unless ;:_ivi :^sbm.e; strong: jastification could be shewn -^.^^VitiielviK^-pf; the term, have entered a :^;''^npj^uitagainst : yb*Uj'Oa the ground that no ,of .particulars had; been filed. Iffsj'SJPhg; object^of such a document in suits is defendant of the |f|gf^i|sttf^j?^ J |h.e claim against him, sp that he f^@^&U^be^^reEaX6d^;to '.make to it. :^.^v^^Pi^dp'p|imi^ti||fis ;iised :for .that, and for no !|^g|i|^||l^§^^^.sei:L;^ljb^ustrnbt be" made use 8 ;.?^ the defendant, ||^A^^j|lj|]g^s|^;4BperßeVhijß ! ;. character, or de-t»^^^^^^^"^j;apep!a't«.yi/-i;.:think; r you; 'were not |^^^^o|fer|^s||ar^jipf ? ifeia full ' import of the .at.: '. jt >is primd fe^^^^^UJ^lipiap^fMy ■/Tejituro.oh saving ;.sujit;fprJibel can be : :word, . TiHl-fft?i®¥ '

you will, therefore, please to strikeout the word both in tho bill and in the copy pf it; served oh the defendant. j Here Mr. Webber erased the word •' fraudulently " from both documents. The Magistrate.— The defendant was in Court all day yesterday, but he is not here ihis morning. He is as much a stranger to me as you are. However, I took down ill the evidence given in the cause, yesterday, with my own hands. - I perused chat evidence last night and this morning, as well as the several letters which passed, between you and have been put in, and I reel perfectly, satisfied that the defendant lias acted with good faith in all matters relating to the contract which is now the ■subject matter of this litigation. Not only Ides ho think he has executed your order cor staves in the usual manner, but he i^s convinced he has done it well and efficiently, and that you are acting most unreasonably in bringing this suit, and in refusing to pay him for the staves which ,-ou ordered and he delivered. Two men (as sometimes happens) may entertain views diametrically opposite respecting the performance of a. contract between them, and yet' they may be both equally 'ionest and conscientious. I think that both plaintiff ahd defendant have acted *-ith perfect good faith — the one in bringing, and the other in defending, this suit. Courts on the continent of Europe have the power, which they often eiercise, of Ordering apologies to be made by one litigant to' another, in cases like the present ; and the usage has certainly a most wholesome influence in conserviriganidngst tho people goodjraa'rtbers. politeness;' 'and courtesy. Our"'iQoufcts ( 'no "liiclvl power. . 1,-would, however', suggest to you —speaking ' in : ay-friendly manner — not only the propriety, but the justice, of sending a note to the defendant, with- : Jrawingtheoffensive term, and apologising for having used it. . ; ; Mr. Weber said he would act on the suggestion and send a note to the defendant. : The Magistrate, then proceeded to deliver judgment. ; The following is the judgment of the Court :— ln this case the plaintift seeks for £15 damages Tor loss sustained, as he alleges, owing to the defendant having failed to execute an order for the delivery of 1000 white pine staves to him of prescribed dimensions, which order the defendant had undertaken to execute. In July last the defendant was supplying the boiling-down establishment at Clive with pine staves for the making of tallow casks ; he had an order from the head of the | establishment for about 3000. During "the month, the defendant, at the reqoest of the plaintiff; called at his cooperage in the Shakespeare Itpaj, where they had a conversation about staves, the one mentioning that he had a contract with the establishment at Clive, and the other saying that he wanted 1000 staves to make tallow casks. The defendant mentioned the price at which he would supply tho number required by the plaintiff— l4s. for every 100. The defendant admitted that the plaintiff had said he would require staves of an inch in thickness, but he did not recollect if the plaintiff had mentioned the length and breadth. The hearing of the defendant appears to be slightly affected, and it was probably owing to it that the misunderstanding had arisen respecting the order. An impression seems to have been made on the minds of the defendant at that conversation, which has not been removed up to the present time, namely, that the plaintiff required nothing more or less than the same kind and quality of staves which the defendant was supplying to the establishment at Clive.. The price he mentioned — 14s. a hundred— may bo regarded as the samel The ClivVestablishment was paying 12s. only ; and the additional shilling asked of the plaintiff was solely owing to his requiring but one-third the number of staves ordered by the Clive establishment. On the 10th. August, 1870, the plaintiff wrote to the defendant as follows : — " Sir,— Would you please send me down one thousand white pine staves ; the length and size of staves to be three feet seven long, not less, by five to six inches wide, and a full inch thick ; the price to bo as agreed upon, fourteen shillings the hundred, delivered at the cooperage, Shakespeare-road. You will ploase send them down as soon as possible." The numbers were written in the letter, which showed more than ordinary care on the part of the plaintiff, to prevent mistakes as to the dimensions of the staves. On the 15th of tho same month, tho defendant replied, saying: — . "Mr. S. Webber, — I have given instructions to the bushmen to split the one thousand pine'stfeves ordered by you, but I am afraid I cannot get all down to you as soon as I could wish. The late heavy rains have made the bush almost impassable for drays, and the main road is very bad now for a heavy load. My bullock team was in Ihe bush on Friday last for the Boiling-down at Clive, but could only bring out three hundred. They weigh more than 200 lbs. the bundle of 25 when green." No reference whatever was made in this letter to the dimensions given by the plaintiff; and, from the evidence of Butcher, to whom the defendant sent instructions for the execution of the plaintiff's order, it would appear that he was directed to cut the staves from four to five inches only, and that he never understood that any of them were to be sis inches , wide. From four to five inches wa3 the breadth of those split for the establishment at Clive. In September, 247 of the staves were delivered ; they were not of the dimensions prescribed, but the plaintiff, having an order on hand at the time, , reTained them;- . iFifty of them were not, according to "the^p'.i aln ttif^ptfHW utfe 1 ; in making tallow cask¥. On th' 6' f 6'tli'Oc{,p I ber, the plaintiff wrote to. the defendants asking when the remainder of the staves would be sent him, and complaining' of j the 247 delivered, and calling the defendant's attention to the prescribed dimensions. " They should be," says the plaintiff, " from five to six inches wide, and a ; full. inch^ thick, as agreed upon." This communication does not, however, appear to have removed the impression from tho defendant's mind as to the plaintiff's requiring tho same kind of staves as those sent to the establishment at Clive, for, on the 11th of the same month, the defendant wrote to the plaintiff, saying : — " lam very much surprised at you making even the smallest complaint about the staves. The coopers at West Clive boiling-down establishment have had over two thousand ; not one has been complained of, but much praised for their trueness and evenness ; that they were the best staves they had seen in New Zealand, and your lot were a part split for them.":, Tjie defendant still did not perceive that the plaintiff wanted staves of different dimensions from those sent to Clive. On the 18th October, 660 more staves were taken to plaintiff's cooperage, which, after taking lime to examine, lie refused to take delivery of, on the ground that they were not such as he had ordered, and lie gave notice of such, his intent, to the defendant, within a reasonable time after, the staves had been left at his cooperage. The last lot sent, consisting of one hundred staves, was taken back by the defendant's carter. The plaintiff had produced in Court a sample of, the 650 staves; and certainly they were f neither inch thick, nor from fire to six inches in breadth. The plain-

tiff bad ordered staves of specific dimensions, and lie bad a right to get what he had ordered, or to refuse to take delivery of those sent, if they did not answer to the dimensions prescribed. The plaintiu knew best wbat kind of staves he required ; and it would be inequitable to compel him to take others,, on the ground that they would suit bis purpose just as well, or that other of bis fellow-artisans spoke highly of the quality of those tendered. The plaiutift 1 seemed anxious to give good and substantial tallow-casks to his customers ; and, for that purpose, he ordered a particular kind af stave. As both parties knew how timber was split, neither could have had in contemplation the idea that the staves were to be as even as if sawn and planed with great nicety. The plaintiff had, however, fixed a minimum of breadth and thickness, ana the staves sent ought not to have been Jess than that, in either case, although they might have been more. The plaintiff could have reduced the excess by dressing, and which, according to himself, ho reckoned upon having to do. He (the Magistrate) was of opinion that the defendant did not execute the order given him by the plaintiff', and that the latter bad sustained loss in consequence. There is no market in Napier for staves, so that the difference between, the contract and the market prices of staves cannot be ascertained. The plaintiff is a mastertradesman, working on his own account, and is obliged to get staves for h\» workshop when and where he can, now from one district, and now from another. Itad !hVWn it journeyman, receiving a weekly .wiWWesry Saturday nigbt, who had Been pV&iTh&'d' by the act of from following bis ordinary calling, it would* be. easy to assess the damages. If the SiO; staves bad been according to order, bse would have made them into tallow-casks-Theso be might have sold on credit, and might not bave been paid for them for months to come ; and for some he might never receive payment at all. In fixing upon the amount of damages, this is a contingency to be taken into consideration. The plaintiff had not given th& Court the assistance which be ought in. respect of ascertaining bis probable. loss. He might have had some' person of ms own calling present to give evidence in the matter. The plaintiff sard be had been kepfe idle for 4 or 5 wee&» by the nonexecution of the order. He (the Magistrate) would allow him £2 I<Ds. for iour weeks, by way of damages, wMeh would amount to £10. From this woalieS be deducted £1 12s for the 247 staves, and £1 more in respect of the profits arising from the 3 or 4 small casks made by the plaintiff while he was so kept from his regdiar work. The defendant appears to ha?e acted with perfect good faith throughout; and as he had reasonable grounds for thinking that this suit would be decided in his favour (regard being had to the verdicts .sometimes given in disputes of the kind) Abe Court will not give cost 3. Judgment for plaintiff £7 Bs., but without costs.