SUPREME COURT.

Manawatu Times, Volume XLVI, Issue 2124, 16 May 1922, Page 7

SUPREME COURT.

SAWMILLING CLALM SUCCEEDS. The sawmiling case, Berkahn and Co. versus Oscar Andrews and Co., claim for damages for non-delivery of plant, was resumed at the Supreme Court before His Honour, Mr. Justice Hosking, at Palmerston North yesterday morning. Before the case proceeded Mr. Cunningham, counsel for plaintiffs, submitted an amendment of the claim for daamges, computed on a ratio of output from the mill by using bullocks compared to what the output would have been had the hauler been in use. His Honour reserved the point of admitting' the amendment, Mr. Cooper, for defendants, addressed the jury at length pointing out alleged discrepancies in plaintiff's evidence as compared with their correspondence with Messrs Andrews and Co. Regarding the general evidence of plaintiffs there was nothing to prove that they had. any practical knowledge of working a hauler, and therefore, how could they know what, or would not, be. their profits? David Henry Melville, sworn, said he was instructed by Mr. Jarvis to deliver the hauler as soon as he could, and witness had been looking for opportunity to get it out for nearly six months, but the swamp was too soft, and as the hauler weighed 4 tons, he could not shift it. Three men would suffice to work a hauler, which would be a considerable advantage, as compared with bullocks. John Moore, sawmiller. of Halcombe, stated that he had been milling- timber a few miles from Berkahn and Co. As the country was broken, and timber scattered, he considered bullocks would be cheaper and better to work than a hauler. Evidence of a similar character was given by Leonard D. Simmonds, sawmiller, of Palmerston North. Oscar Andrews, a member of the defendant firm, stated that Mr. .Tarvis placed a sawmilling plant in their hands for sale. Plaintiffs interviewed them with regard to purchasing the plant, but witness had not seen the plant at that time. No particular make of break bench was stipulated. Plaintiffs inspected the plant in company with Mr. Redpath. and expressed themselves as satisfied with

it. No definite time was stated for delivery, but the remark "that the plant may be down in a fortnight" may have been made. Witness had received no complaint from plaintiffs or Bassett and Co.. about the plant, neither had witness, up to the opening of the case heard any complaint about a live bench to be delivered. Andrews and Co. bought the complete plant from Mr. Jarvis for £l5O. Mr. Jarvis promising to give delivery at railside Te Kawa. Witness was then cross-examined relating to correspondence between the parties. Kdwin Redpath. a member of the firm of Andrews and Co., corroborated the previous witness in regard to the general terms and conditions of purchase of the plant, and this concluded the evidence for the defence. The jury withdrew and during their absence His Honour compiled a list of the issues to be decided, which were submitted to them on their return and they were lengthily addressed by counsel and His Honour, who reviewed the evidence bearing' on the points at issue. The issues submitted to the jury were decided by it as follow' —Was a statement made by the defendants that the plant would be delivered within a fortnight from October 20? —Yes. Was this statement made before the receipt was signed or after? —After. Was a statement made by the. defendants to the effect that delivery of the hauler would be dependant on the weather conditions permitting it to be brought across the swamp?—No. Was the hauler delivered within a reasonable time, reckoning from October 20 ?r No. What damages are the plaintiffs entitled to recover for delay in delivery?—£lso. Did the defendants warrant the break bench to be a break bench of a certain make? If "yes" then was the break bench made by that firm? —No. Then what damages are the plaintiffs entitled to recover for the difference in kind? — £4O. The Court then adjourned until 9.45 this morning.