RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 2678, 6 September 1870, Page 3

RESIDENT MAGISTRATE'S COURT.

Monday, sth. SEPTfeMßiii.

(Before A. Chetham Strode, Esq., R.M.)

Guthrie and Asher v. Jackson. -^A. claim of L 2 18s ld, balance of account for goods supplied. The defendant acknowledged that the account was correct; but pleaded that Credit had not been given him: for a quantity of firewood which he suppUed to the plaintiffs. The quantity he had supplied was 114 cords at 35s a cord, amounting to L2O 2s 6d, whilst he had only been credited with Ll6 12s 6d. The plaintiff Asher said that credit had been.given to the defendant for half a cord' more than appeared in the books, instead of less. This credit had been on account of the defendant having lost some of his receipts. A 1 document was handed in showing that that arrangement had been agreed to by the defendant. Judgment for plaintiffs for the amount claimed, with costs. BeU v. Collins. -—A claim of 13s 6d, balance of account for advertising. Judgment by default for plaintiff,' with costs. • Dodd fib. Smith.—A claim of Lll 5s Id, balance of account for work and labour done. Mr Bathgate appeared for the defendant, and pleaded not indebted and a set-off. The plaintiff said that he had contracted with the defendant to do certain stone and brick work at the house of a Mr Reid.

The contract was produced, but His Worship pointed oufc that ifc was nofc stamped. The contract, however, consisted of two letters, a tender, and an acceptance of thafc tender, and fche documents were nofc .objected to. The plaintiff said that he did the whole of the work named in the contract, and also did some extra work, for which the defendant agreed to pay. By Mr Bathgate : He never saw the plan and specification before seeing Mr Smith. He tendered to do the mason and brick work to a house in Heriot Row, for which the defendant was the contractor. Part of the work was fco puU down an old chimney and rebuild it. He built a number of piers for the support of the joists. Before doing that he had to excavate to a depth of 2ft Gin. That work was no part of his contract. He h<td also set a kitchen range, which work was not in his contract. No one had complained to him of the work. Part of the work had been taken down since. He had not been asked to alter it. He never saw any plan. The measurements were given fco him by Mr Armstrong. The range was taken out and reset, but nofc by him.

Thomas Yates said that Mr Smith had given the plaintiff the job of excavating the ground under the kitchen, saying thafc he mighfc as well pay him as any one else, as he was walking aboufc. This was outside fche contract. Plaintiff also did ofcher work outside the contract.

William Armstrong said that the defendant had agreed to abide by his decision as fco whether the range should be paid for as an extra or not, and that he decided that it should. The excavation was also outside fche plaintiff's tender.

Robert Wain, a bricklayer, said that the alterations to the range would take him and a labourer about a day and a half to do. Hg> thought L 2 17s 6d a fair charge for that, work.

Mr Bathgate pointed out that the contract was for Ll3, and that they allowed. lA, 4s for extras. The defendant had paid plaintiff LB, and charged IS Bs. lOd as a set-off for certain work done by the plaintiff, which had to be pulled down and.rebuilt.

George Smith, the defendant, said he understood that the extras charged were-in-cluded in plaintiff's contract, except 14s.for a brick nogging partition. He never engaged fche plaintiff to excavate under fche kitchen. The plaintiff's duty was fco excavate foundadations for some pillars. The work, at the kitchen range was badly done. Ifc was complained of by Mr Ross, Mr Burt, and Mr Reid. He asked plaintiff fco repair ifc, and after some, conversation he agreed to do the repairs. He did not do them, however, and another man had to be engaged to do it. All this extra work had to be done in consequence of the plaintiff's mistake. He acknowledged LIS for the contract and Ll 4s for 'extras. He had paid LB, and was charged L6 8s lOd for fche alterations.

David Robb, architect, said he condemned the setting of the kitchen range. It was badly done, as set in such a manner as to render it useless. The front of the chimney was badly buUt, ahd the plates of the range were cut.

Alexander Burt, plumber, 'said that the kitchen range was improperly set and had to be done over again.

Alexander Renton, bricklayer, said that the kitchen range was improperly set. The bricklaying was done in a workmanlike manner. He was engaged to take the range down and re-iset ifc. His charge was L 6 Bslod.

Mr Strode said that the plaintiff's agreement was specific. He should allow all the items for extras except those for setting the kifccaen range, fchat work being rendered useless by being improperly done. He should also allow fche defendant's sefc off. Judgment; for fche plaintiff for Ll Is 6d, each party to pay half costs. Jones v Houligan.—A claim of L 3 4s, fche value of two geese and four ducks, the property of the plaintiff, disabled by fche defendant on the district road afc Sfc. Kilda. Mr Stewart appeared for the plaintiff, and Mr Bathgate for the defendant. The plaintiff's evidence was that on the 29th of last month the defendant trampled on one of the geese, set his dog on another, pulled one of the ducks in two, beat another with a stick, and set his dog on the others. He treated them in a most cruel manner. Two geese and two ducks were disabled, and two ducks killed. The value of the property was L 3 43. The defence was that the defendant had been subjected for a long time to a nuisance from the plaintiff's fowls rooting up his crops. On the morning in question he acknowledged that his patience was exhausted, and that in driving the fowls out of his paddock he killed one duck, as he had a perfect right to do under the Pig, Goat, and Poultry Act, 1864. His Worship pointed out that there was no doubt the offence had been committed, and that the defendant had no right to take fche law into his own hands. He should value the geese at 12s each, and the ducks afc 5s each. Judgment for plaintiff L 2 4s, with costs.

Houligan v. Jones.—This was an action for Ll3 15s, for damages caused by the defendant's goats, ducks, and fowls trespassing on the plaintiff's land and spoiling his crops of carrots, cabbages, and oats. Mr strode gave judgment for the plaintiff for 10a, each party paying his own costs. Mr Bathgate appeared for the plaintiff, and Mr Stewart for the defendant.

Blair v. Williams.—A claim of L 25, damages for trespass by the dfifendanfc on the lands of the plaintiff, section 24, irregular block, East Taieri. The defence was, fijrgfc,

that the land was not in the occupation of the: plaintiff; and second, that if there weie any trespass it was by leave and license of the plaintiff. Mr Stewart, for Mr Harris, appeared for the plaintiff, and Mr Macassey for the defendant. John Bell Blair, the plaintiff, stated that his; land, section 24, irregular block, East Taieri district, had been entered, the fences taken dowb, and stone1 pat upon the land. The grass which had been laid down had been damaged by horses trampling on it; He had never given the defendant leave to enter -the land. I By Mr Macassey :He was' leaseholder of 3 the land, paying L 9 lOs per annum rent. There were 100 acres in the section. v . Six or seven acres, had been damagedl- The land had been surveyed in-his presence'abont four years since. He bad turned defendant's horses oufc himself. Adjoining his section there was a quarry leased to the Government.. Part of the road cn# by defendant led to that quarry, and it-'. Was there that his fences had been taken? dowfe. His? land abutted on the Main Sottfch road, and was fenced along that road. The fence did nofc go beyond the boundary of Ms land along the road, but it enclosed other Band not otfcujjried by him to the extent of about two panels. The defendant cotild not. have got to the quarry without taking, down his fence and ! ! going through his lahd,"except~ at great ess j pense. He had a cohversatibiriwitfi Ml* ] M'Kenzie, the defendant's manager, about» : fortnight after the trespass commenced., He: i then forbade fche trespass." There was no un- ! derstanding between r them', that, the , road. ! should be permitted^ in cohsideratioh of hiß= \ tools being sharpened at the Green Island.. ■ forgo, and of hissing sillied with stone to j finish a contract. Mr M'Kenzie gave him five loads of stone in consideration of his giving up his face of the quarry. There was an agreement between himself and the defendant that the latter should pay L 75 for the Reliance quarry, and should always put up the fences after his drays had passed through. Neither nroviso had been fulfilled.

Robert Muirhead said he knew the Government quarry, and the plaintiff's land.' Defendant's men had been on;the plaintiff's land with drays. The fences had always: been left open. A road bad been made, oyer the land, and cattle and horses had been all over the land. They had laid stone on the ground in order to form a road. ! By Mr Macassey: The land had been lately sown in English grass. He knew the men with the drays were the defendant's men.

By Mr Stewart: The stones had not been i removed, and the land where the road was could not be ploughed. By Mr Macassey: The land where the road was had not been laid down in EngUsh grass. Matthew Hastie: He knew the road referred to. It was on the plaintiff's land. It was a mere track, filled up with rubbish from the quarry. He had seen the fences lying open frequently. It was a considerable advantage to go through the plaintiff's land * rather than to go round the hill. Mr Macassey submitted that the plaintiff must be nonsuited, on the ground that there was no proof that the trespass, if any, had been committed either by the defendant, or by his authority. Mr Stewart contended that it was clear thafc fche defendant was responsible, as, drawing a fair inference from the facts before His Worship, it seemed that the plaintiff had, in the first place, used the road on a conditional right which had been stopped at the time of a conversation between the plain-, tiff and the defendant. Mr Macassey argued that Mr Stewart had not answered any of the points he had raised. Even assuming that the men who drove the drays were the servants of the defendant, there was no evidence to show that they were acting under his instructions with regard to using this road. Mr Strode said that there was nothing before him to show that these men were acting under the defendant's authority in committing this act afc all. He might infer, but he did not think he had anything to do with inferences. He felt bound to grant the nonsuit, without costs. i Blair, Hastie, and Watson v. WiUiams.— A claim of LSO, the value of a quantity of road metal removed from section 23, block .IV., Otakia district. Mr Stewart, for. Miv .Harris, appeared for the plaintiffs, and Mr Macassey for thu defendant. John Bell Blair said he was a partner with the other plaintiffs. They had been in occupation of the section named for about 12 months. Mi* Macassey pointed out that the title of the plaintiffs must be clearly established by deed, as mere possession was not sufficient to give a right to allow any person to remove stone, as that would be an interference with the inheritance. Mr Black said he had a conversation with the defendant about the quarry. Some time afterwards, from what he heard, he saw the defendant again, and told him that as he had taken possession of the quarry without his leave, he should charge him LIOO. In reply he (defendant) said that he would leave fche quarry. The same day he saw him again, when he (plaintiff) agreed to take L 75 down, jor LIOO deferred payment. A few days (after he (defendant) said he would take the quarry, and asked him not to let those "Burkes" (Irishmen) into ifc. He said he would sign fche agreement; when he came back. He had never signed it. He admitted being in the quarry, and having taken | out some hundreds of yards. He had agreed to take LSO for the quarry, but the defenI dant had not paid it. He had promised to pay him half a dozen times at least. By Mr Macassey : The title to the land was in his own name. The co-plaintiffs were his partners. He claimed LSO, because there was an agreement between them that defendant should pay L 75, which sum was afterwards reduced to LSO. Por that amount he assumed thafc fche defendant would take 4000 or 5000 yards. There were no number of yards mentioned. The defendant was to pay a lump sum and take what they liked. He did not know how much metal had been taken. No price per yard was mentioned. By Mr Stewart: The sum was to be paid down in a lump sum. After the metal had been delivered, when he (plaintiff) applied for LSO, he (defendant) offered to give him L3O. He could not say whether thafc offer was made without; prejudice. Matthew Hastie, one of the plaintiffs, said he had had a conversation with the defendant aboufc fche quarrj in question. He said that Mr Blair wanted L7O, but he thought it too much, and would grulge LSO. He (phJfiutiff) told him that the entire matter rested with Mr Blair. On seeing defendant afterwards in Dunedin, he offered to take L 37, each party to pay his own lawyer, which he agreed to. Hp told defendant, Mr Dowse, and Mr Pritchard, that that L37 had nothing to do with the East Taieri quarry. Mr Dowse objected to thafc unless,, ne gave him a clean sheet for both quarries „ By Mr Macassey : The quarry was opened years ago. He did not know how much stone defendant had removed,. By Mr Stewart: : No' quantity was uaenfcioned. The defendant1 was to take as much as he chose. Jeffrey WiUiam?, fche defendant, said he knew the plaintiff. He knew fche Otakia quarry. H« bad taken stone Jout o£ it. He made no exact agreement with tba; plaintiff a: out the quarry. He had taken* about 150 yards of stone ont of the quarry. The value of thafc might be L5. He had a conversation with Blair onthe 24fch February, about the quaarry. Blair said that he could go into the | quarry, and thafc they wkrald not quarrel about terms. No price was mentioned. At a subsequent interview, at Saddle HUI, plaintiff asked him L 75. He complained that fche figure was a high one, and made no arrangement as to price. In April he met plainuff in Dunedin. He then asked LIOO. On that he Baid, "Oh then, if that's it, I must order the men out of the quarry." He did not take them out of the quarry. By Mr Stewart: He offered to pay the plaintiff L3O, in order to keep out ot Court. By Mr Macassey: The L3O was to be in

settlemant of all claims of the plaintiffs, and in payment for the balance of the quantity of stone. Mr Macassey appUed for » nonsuit. He pointed out that the action was nofc for any quantity ©f stone at a price. Itrnust, therefore, if a lump sum were the basis of the contract, of necessity be an agreement. Further, it was an agreement relating to land, and there was no Written agreement, therefore fche action could nofc be maintained. Besides that, in a case of parol agreement, an action could nofc be maintained; as shewn by the 4th section of the Statute of Frauds, when the defendant'^ portion of the agreement had not been carried out. Secondly, the fact qf Hastie and Watson being co-plaintiffs Constituted a mis-joinder, as the fee simple of the land was vested in Blair only. He was, however, quite prepared to go on with the case if it were taken on* the question of quanttem meruit. If, hbwever, the LSO were claimed on a special agreement, he claimed a nonSUit. fifi ifi. - Mr Stewart replied. WiUiam Henry Robinson said1 fchat he was in charge of the quarry lor Mr Williams. He was at the quarry referred i& inthe action on all occasions when stone was removed from that quarry. On^hundred and eleven.loads,, etach.of which,would hairdly measure a yard, had been removed *irorai that quarry. Stone was worth from Sd'to Sd per yard." ' ''!" v' ■■-■■-■■■■-, ** ;.;■ -y. jßy Mr Stewart: He had a book showing the quantity of stone taken out of the quarry (bookproduced}. The drays wererunning 42! loads a day. They took metal ftom that quarry for days or half days, on March 4thv : 7th, 9th, and 10th, and six loads afterwards-. Mr Sinnett * Road metal was worthj6s per yard. -.■;.. Mr Mackenzie, superintendent of theworks on the Main South Road for Mr Williams; md, that about 100 yards of metal had-been laid on the road from Blaiz's quarry. Metal was worth from 3s to 8s per yard. 6s was a fair average price, .... Mr Strode said, that the fair way to deal with the questioo was to give a valuation of the advantage derived, or,derivable, by the. defendant, from the quarry. He'would give Ls*as the value of the metal removed, and assess the damages due to the plaintifiTfor keeping the quarry open for fche plaintiff's benefit afc L5. Judgment for plaintiff, LljO,1* without Costs