AUCKLAND SUPREME COURT

New Zealand Herald, Volume XLIV, Issue 13613, 5 December 1907, Page 7

AUCKLAND SUPREME COURT

' ■ . ■■-.- ' ||t;i|::;; CIVIL LIST. ■■■*#.-;'£•■■ ;1 V. ,: .-'' '■■ .'.'. ; .' , «-. civil list of- the Supreme Court wa, ' Ruined yesterday morning before Mr. Jus jic* Pennistou. CLAIM FOR £2000 DAMAGES. v TJjbnias Wm. Slater proceeded against tin Walteawta Sawmilling Company for the re •■■.-,« of £2000 damages for alleged .wrong SJWoure. Mr. Bealo (with him Mr. Mc LidO appeared for the plaintiff, and Mr Bourne, K-C. (with him Mr. Prendergast) jpp'barcd for the defendant company. Tht ■ ietion was heard before the judge alone. The statement of claim set. forth—(l) Tha ,-,i September 11, 1905. plaintiff executed it favour of defendants a mortgage; (2) sinci »! icn plaintiff had caused nil the kauri tim "growing on the lands referred to in tin Agreements between the parties to be felloe yid removed and sawn into logs, and th« laid agreements, therefore, now ceased tc have any force or effect; (3) until July 3. 1907, plaintiff allowed defendants to receive a nd convert to their own use large quantities of timber at current market value, but, dofendarttd had refused and neglected to dc 0- (♦)■ on July * plaintiff gave defendants '.-"■'BOtico ■ that he would not-permit them tc receive or have any more timber until ami • on l £9 B. this agreement as to payment was adhered to; (5) in defiance, of such notice defendants had seized largo quantities of • the timber, and had wrongfully converted ' tWMB>& to their own use, and wero continuing to do TO ; $) about tnCl month of Hay defendants wrongfully took possession of",«ueo timber as was lying in the booms at Maajtonui and elsewhere, and had brandid the same- with their brand; (7) the plaintiff had-not made default under the mortmM, and defendants had no lawful right, trurnut,' or authority for so taking possesion.] -(3} since the dato of tho mortgage no apfcment had been come to as to the price - w rates at which defendants might have Jjeen allowed to purchase the timber; (9) defendants bad refused to give plaintiff i eiedxt, or pay him for the timber received by them; (10) during the term of tho mortgage defendants had advanced money to plajntiff, for which accounts were rendered; but (11) these were- inaccurate and incomplete ,and the defendants had not given pUiiitiff credit for tho fair current market nflK, the price of the timber' received by them, and sums of money which he was ensided to be credited with, and they had T*«*fffully omitted debits for interest "under U» mortgage, and had wrongfully given credit for the value of timber converted; (12) proper accounts had not been rendered to.plaintiff; (13) by a proper exercise by defendant!* of their right of purchase a.s proTided, a sum of money would have been duo plaintiff sufficient to satisfy defendants' , claim under the mortgage; (14) the defen- - dwifshad now and had since the date of the mortgage ample security; (15) on September 13. 1905, plaintiff acquired further timber from Messrs. Forster, from the Crown .(known as Kohumaiu), and from one E. T. Tomlinson; (16) defendants had received portion of such timber, and hud taken and converted to their own use further portions and had taken possession of the remainder of such timber, with the exception of that acquired from K. .P. Tomlinson: (17) no agreement had been come to as to "current prices," and the prices credited n.Rititm were considerably below tUCKO - prices. - ■■ - * Plaintiff a.Aed that the 'accounts be taken ?LSi# transactions : between the parties in W-°i *J» m°rtg*go: that the amount . of.his indebtedness under lie-mortice be isoertamed; that a receiver bo appointed to .B*o possession of tho mortgaged pro|Wty;. thai the terms be decreed upon .**** plaintiff .might redeem his timbertt»t.an .injunction be granted restraining Wtauluts from obtaining possession of the tnaier and from interfering therewith sublet to their ri-iht under the mortgage; for SKSsteision of the timber seized wrongfully 0* for payment at titrate of 8* per 100 wwrficiat feet in case possession could not . w> lad; tor a sum equal to 8s per 100 ft for fenaber, received by c:<c 'wits, and for the ?«m of ■■, or damages for such seizure fc-roijgfnl conversion and for wrongfully ■..; WBg(WSKfißsiou of all plaintiff's timber as aforesaid. :V?fc*falemcat of defence admitted tho fvutioii uf the mortgage as alleged, but jWlwrthtft the'agreements referred" to had ifcjvany.wawrt) ceased to have any force or #ect., It was admitted that defendants had '««ivod a large quantity of timber from ■l).untjff t as alleged in paragraph 3, but it *» denied that plaintiff had ever allowed ifefendants to receive and convert, it to their own use upon the understanding that they Wwld .agree to pay him tho Air current F'ice therefor. Defendants denied that on ''iiyj, 1907, or at any other rime plaintiff gavetotheni any notice in the terms alleged w paragraph 4-, or that, in, defiauoe of any. . •wi*-notice they had seized" any of the timbe« referred to in paragraph 5. or aiiv tims ?r of plaintiffs, or ' wrongfully converted wrj: to their own use. paragraphs 6 arid 7 v.<;o.denied,. and ■ defendants alleged that pwintiff had made default under the mortgage, and that any of plaintiff's ' timber -abort by defendants had been' so taken in pursuance of lawful right The allegations "'".paragraph 8 were denied, and it was Kated that the prices or rates for the timber ».-m agreed on. The rates agreed on were equivalent to fair market rates, and all the WSWunts, it" was stated, had been properly Kept- Any right of. purchase had been proBjPJ exercised, and defendants denied mat.they had ever had ample security. It wis denied that plaintiff had over acquired umber from the Crown known as Kohumaru, and with regard to the timber acquirt%l 4 j w Messrs. Foster the plaintiff had exceedan agreement in favour of defendants. *S* latter denied that they had wrongfully J™»™c timber referred to in paragraph jo. - The prices referred to in paragraph 17 ;: nad been;-; agreed to. , , Defendants further stated that plaintiff ■■fIW-£pplted to thorn for financial assistance M 1902,>and this was accorded on certain' conditions, which were, inter alia: That the pttees were to be credited to plaintiff against My outstanding indebtedness on any acftHint.whatsoever, and that while such in--ticbtedaefis, existed plaintiff- was not to bo 5-"*.Uled to any actual payment. Largo.sums ft money had been advance*! plaintiff, and Wjprices for his timber had been credited ; against! the&e., Plaintiff had had access to aatendants' books, and had always expressed simself satisfied with the correctness of the entries.

< Mr, Bealo called plaintiff, who stated that : no Opnunonced transactions with defendants w November, 1902. After that he had sold timber from various bush areas, the arranged. In September," 1905, » deed of mortgage was executed for the WfPP«e of securing payment, by witness to attendants of the sum of £7770, with interS ** "» "to of 7 per.cent., over the tim2 r :. The deed contained a provision by w '«eh witness bound himself to sell the -wooteof the timber cut from the lands mentioned in the agreements scheduled in the mortgage at price? from time to time to be agfecdiupon between .himself and defendants. Although in the first instance prices were agreed to, this had not been the case °W«: the mortgage. Tho prices that had won accorded him for certain timber wore worn 5s to 6s 9 d per 100 superficial feet for wrtsin timber, but he had never agreed to wpept those, prices. In cross-examination, witness admitted *ne correctness of the accounts so far as tho entries were concerned, but ho disputed price*... Before the signing of the mortgage ' n -ooptsmber, 1905, prices had been fixed, m? he denied that since theu there had Wen any agreement as to tho prices. He j!»o seen the books, the prices, and parlicuii \-- various rafts from time to time, »v .'"'- had been continually grumbling »COut the prices credited to him. He had jWCtctl from the contractors the cost of jsurance, though he had not effected any "durance, intending that he should be perjenally responsible. Witness also admitted ;«tttnehad not taken out an accident policy few the mortgagee. $&° "'* Honor: Ho had not informed tho praetor.-' of this arrangement, Expert witnesses wore called to give.eviTOtee as .to tho prevailing prices or timber, wtor which the case was adjourned till to-< 'Wirr-jW. -

, The animal public meeting of th« Auck--1 £1"' Auxiliary of the British and Foreign. ;». .Society will be. held this evening in the"Wist Tabernacle. The Rev. J. Clark will. K» ■ ltlte i'estirig reports of the work of ' „ <? past J«ar will he presented and addresses WW by the- Vcri. Archdeacon Calder and "6 Rev. W. Gray Dixon, M.A. tiff l J bo to improve upon perfee- . il;. -W publishers of TEARS' ANNUAL j ' * »3?,? M '» this year. The new issue, ' ' of / November 25, contains the best work • 'tttiSrM F9P«lar writers of fiction, illus- ' iimrL uy »* e 7? n artists of note. In adcli " siitt thwo are four ma gnMMu * -J* th * hot weather: Splendid value and Wl t oty ; gcut -'a Panama bats at-Smith Rill ■