Resident magistrate's Court.

Marlborough Express, Volume IV, Issue 201, 30 October 1869, Page 5

Resident magistrate's Court.

MONDAY, OCTOBER 25th. [Before S. L, Muller, Esq., R.M.] LEWIS V. HART. A claim for the value of a whip lent when hiring a trap. The plaintiff, in crossexamination by the defendant, said he had never charged the whip to his employer; and on a bill being shown to him wherein a buggy, harness, and 2 whips were charged, he said the “ 2 ” was not his writing. John J. Hart, the defendant, said he was in the habit of carting goods for Brown. On one occasion he hired the plaintiff’s trap, and received some old harness, and a very old whip, of which he lost the lash, and on his return he offered to give him another in its place, or its value. The handle also was broken, and only about two-thirds of it left. The Bench allowed 10s. for the whip as its value, as it was clear it had been lost. Costs, 9s. LAWRENCE V. DODSON. Mr. Pitt for defendant: Mr. Conolly, for plaintiff, said this was an action for seizing and detaining a quantity of furniture and goods, for which 40 1 damages were claimed ; 2 1 Bs. 9d. as commission due on another transaction. The defendant had put in a set-off of 4 1 95., and paid 13/ Is. 9d. into Court, but did not state what for. The case was this:—ln May, 1868, the plaintiff purchased certain goods from John O’Sullivan, then living at the Half-way House. Defendant had been instructed to sell them previously, but while on a dray at the door, plaintiff came up, and bought them for a certain sum, and requested him to leave them at his store instead of Dodson’s. On arrival in Blenheim, the goods were seized and conveyed to Dodson’s store, and afterwards sold by him. He had expected some technical defence, but as a sum had been paid into Court, plaintiff thereby admitted it was a wrongful act, and the case remained simply one of damages The set-off was correct, but he did not know how the sum was

arrived at, but be supposed it was what ihe goods fetched at auction, less commission ; this he contended he had no right to deduct —but this was no test of value. T 1 e question was the value to their owner, who, keeping a store, would have kept them on hand, and sold at profit as occasion required. He submitted a leading case as a precedent, to show plaintiff 1 was entitled, in the absence of a bill of particulars, to claim the very highest value that could be set on them. P. Lawrence deposed that on May 15, 1868, he purchased certain goods, according to the demand put in, and paid 30/ for the whole, allowing 10/ for some pigs retained, but giving 20/ for the goods in question ; he bought them at Sullivan’s house ; did not deliver them for conveyance to Blenheim, but Sullivan did ; met the dray with them at Shepherd’s, and asked him to get in with them that night, as he wanted to send some up country. Next morning he went to defendant and demanded the goods, but he refused, saying they were not his ; told him he had bought them ; valued them at between 40/ and 50/, and they would have been worth that in the way of business ; applied to Gunn, but he refused to give them up ; the sum due for selling 1000 sheep on commission is correct. By Mr. Pitt: The goods_ were in my possession, as I took an inventory and handled some of them r had not previously seen the carter ; I paid a deposit of 3/, and the balance was to be paid next day; told O’Sullivan to send them to mo ; don’t know when the sale was to take place ; believe it was the 15th ; it was the evening previous to the sale ; did not think it worthwhile to tell Dodson I had purchased the goods; saw Dodson some time after the sale, but only saw him once before the sale ; did not give him any notice that I had bought them ; told O’Sullivan to send word to Dodson and pay him iis commission just the same as if he had sold them ; as an auctioneer, knew he could not give up the goods till notice was given ; told him so that defendant could get his commission ; advertised some goods for sale after the sale, and it was put in by my authority ; these were some of the goods I am now claiming for; should have had a sale on the same day if I had not bought the goods; do not recollect telling O’Sullivan I would give notice to Dodson ; if I did not, it might have been an omission on my part; received a roll of oilcloth from Dodson’s store, and I took delivery of it; this was part of the goods purchased; will swear that no one was present when I met Dodson on the road; it is not usual to sell for another auctioneer on half commission; have had some six years’ experience ; oilcloth was valued by me at 30s. John O’Sullivan deposed that he sold Lawrence certain goods for £2O ; saw them loaded on the dray, and told the carter to take them to Lawrence’s store. Said it would be as well to tell' Dodson, and plaintiff coincided with it. Had previously arranged with Dodson to sell the goods; sent word by the carter; delivered the whole of the goods to him, except the pigs.

By Mr. Pitt: My instructions to Dodson were written ; the letter produced is mine. Told Lawrence to tell Dodson to withdraw the sale; believe he said it would be all right. The oilcloth cost me £7, and would not have decreased in value much, having been in use only six months; it covered a floor about 12x15 feet. Saw Dodson, who tendered me the proceeds; did not accept it, on account of having sold to Lawrence, saying I did not know how things might go, and that he had not settled with Lawrence. Told Dodson afterwards to pay the money to plaintiff. Mr. Conolly said that as Mr. Pitt had asked the price of the oilcloth, he should enquire the value of each article taken. Mr, Pitt objected, but the Bench overruled him.

By Mr. Conolly: I bought the whole of the other goods in a lot for £35, by valuation ; had added other things, but deducted them again. Don’t know precisely what they were worth, but consider the seller left himself a margin of profit. Mr. Pitt asked whether all the _ goods sold were purchased from Dodson previously. Witness said except the pigs; he could not be sure about the remainder, as he retained some for himself.

Kiel Eoss carted some goods from O’Sullivan’s; he was first instructed to take them to Dodson’s; being wet on the Friday, did not fetch them till the Friday week ; when about to start he told me to take them to Lawrence’s, who afterwards met me and told me to bring them in that night. Met Dodson, who said he expected me to bring them in the afternoon, whereupon I said they were not for him but Lawrence; he said they were his, and he told me to take i.hem to Gunn’s, which I did, and went and told Lawrence he had seized them. Was employed to cart them by O’Sullivan. By Mr. Pitt: Dodson paid me £2 10s. for carting them. George Coward remembered Dodson call-

ing him to bear witness to Ross’ statement, which was correct. Mr. Pitt said the case for the defendant was that O’Sullivan instructed him to sell all his goods, and he had not afterwards received any revocation of the authority. That on the morning of the sale he met defendant on the bridge, but he did not say anything on the subject. Had he done so, probably no sale would have taken place. Plaintiff never gave any notice, although O’Sullivan requested him to do so. Mr. Conolly said that had nothing to do with the case; Mr. Dodson had a claim against O’Sullivan for his commission. Henry Dodson deposed that in May, 1868, he was instructed to sell O’Sullivan’s goods; the goods sold did not include all those claimed by the plaintiff. Can show by my books what was received ; will admit that the whole of the goods staled did come come to me. Told O’Sullivan to employ a man to bring them in, and waited for him all afternoon. Met him about seven in the evening in Grove Road. Hathaway had purchased the goods originally from mo, but had not paid me ; and the proceeds of the sale were to be paid to me on Hathaway’s account, whose goods they were. On the previous evening I went to defendant, and also his solicitor, but could elicit no information; olso should not hays _ sold, but detained the goods, He distinctly denied that Lawrence over told him he had purchased them. The sale was well attended, and fetched very good prices; tendered the money several times, both to plaint iff and to kelson, but they refused to accept it, giving as a reason that he had an action at law, and some day should biing it. With respect to the sale of 1000 sheep sold for me, they were not sold. He had tendered the gross proceeds of the sale to Nelson, Ecclcs, and Lawrence. When Ross told me he was to take them to Lawrence’s he said he knew nothing of the reason why ; he brought no message, but said he had seen Lawrence there. Went about to try to find out the reason why, but coaid not hear it. F. J. Carey, clerk to defendant, was present at the sale on May 16th, which was the largest he had known in Blenheim, and the prices very good. At the sale ot sheep received instructions by telegraph to get Lawrence to sell; attended as his clerk. There was no sale except of 100 to Erapson, at 9d. each ; the remainder were bought in. He never instructed me to make out an account-sales, or claimed anything before ; believed it was the custom to divide commission where one auctioneer sells for another. The 900 were bought in for Mr. Hodson, the owner, by Mr. Monro. James Hodson instructed Dodson to sell 1000 sheep, but only 100 were sold by auction; the rest were taken back to the station. "Was manager for Morrison and Sclauders at the time. Believe Lawrence was aware there was no bona fide sale, John Ewart was present at a sale of goods , had heard of a row about O’Sullivan’s goods ; it was well-attended. Mr Pitt claimed a verdict for the plaintiff, on the ground that, notwithstanding every opportunity,no revocation was given. Had Lawrence been a straightforward man, he would have told Dodson he had bought the goods; but he thought by cunning to drag him into an action. The sum paid into Court was ample satisfaction, and no compensation was required since it resulted from his own action. Defendant did not seize them by force, but thought the carter mistaken. Why, he asked, did the plaintiff allow eighteen months to elapse before bringing his action P Did that not stamp the case with suspicion ? Mr. Conolly contended that the highest value could be claimed as the value of the goods costing £2O; but the plaintiff only claimed they were worth £4O. Reclaimed £43 odd as due to the plaintiff in the whole.

The Bench said that from the evidence the judgment must be for the plaintiff, who bought the goods, and that was not denied. In doing so he meant to make a profit. The wrong-doing was admitted by the payment into Court. It would have been better if the action had been brought earlier. He should allow £5 profit, and also the £2 Bs. 9d. commission, as it was not shown that Lawrence was aware that the sheep had not all been sold ; £1 10s. would be deducted for the oilcloth, as valued by plaintiff h mself. Costs£lo3s.