RESIDENT MAGISTRATE'S COURT.

Hawke's Bay Herald, Volume XXI, Issue 5017, 25 February 1878, Page 2

RESIDENT MAGISTRATE'S COURT.

Saturday, February 23. (Before R. Bcetham, Esq., R.M.) PERFECT V. RUSSELL. This case, which was an action for the recovery of £43 16s, for making 21,900 bricks, was heard on Friday, and judgment reserved. His Worship row delivered judgment as follows : — In this case the plaintiff ; seeks to recover upon a quantum meruit, ■ and says that his contract with the defendant to make 50,000 bricks was rescinded by the defendant's agent, Humphreys, who told him to desist from work, and stated that when he had the bricks»burnt off he would be paid. The plaintiff also avers that he was prevented from completing his contract within the stipulated time (four months) by reason of the neglect of the defendant to supply him with firewood in terms of the agreement between them. There does not seem to be any serious attempt on the part of the defendant to dispute these facts, the only evidence we have bearing on this portion of the subject being that of Mr Russell, who states that he knew nothing of this second contract, and that it appeared to be a mistake. If it is a mistake, it is oiie in writing, and is signed by Mr Russell. The defendant further states that he has no recollection of having given instructions to his clerk, Humphreys, but admits that he may have done so. In the face of the above facts, I do not see that I can do otherwise than hold that the recision of the contract by the defendant was complete, and that the plaintiff can recover for work and labor done. _ With reference to the quality of the bricks, I do not see that we are in possession of very much more reliable information than we had before us in a case of a somewhat similar nature, tried in this Court last week. The evidence in favor of the good and marketable quality of the bricks is still in favor of the plaintiff. Ido not undervalue the skilled evidence of the Napier brickmakers, but the value of their evidence depends entirely upon the question as to whether the sample of 12 bricks submitted to their inspection was a fair sample of the whole. Had these wit-

nesses examined the mass of bricks (which, I presume, could easily have been arranged), their evidence would have been very much more valuable. It is quite impossible to place their evidence against I that of skilled witnesses who have carefully examined the whole mass. Htdeed, I think I may go further, and say that it seems to me impossible for any person to pick 12 out of 21,000 bricks, and say that they represent fairly the good and bad b£ the whole. On the other hand, we have ■ the evidence of a number of skilled independent witnesses, who stated that the bricks are marketable, and are worth far more than the defendant will have to pay for them. I have no evidence before me with reference to the rent of the cottage that will enable me to deduct that from the amount claimed, or I should probably have done so. I suppose, however, that claim could form the subject of an ; action, and be treated on its own merits. Judgment will therefore be given for the plaintiff for £42, with costs, placing the number of bricks at 21,000. DRUNKENNESS. William Jedson and Charles Appleton were each fined 5s for having been drunk in a public place. OBSCENE LANGUAGE. Robert Bosh was fined 20s, with the alternative of 48 hours' imprisonment, for having used obscene language in the Shakespeare-road •on Saturday night, the 6th instant. There was no other business before the Court.