S.M. Court.

Opunake Times, Volume IV, Issue 180, 26 May 1896, Page 3

S.M. Court.

Friday, May 22nd, 1896. (Before Mr H. W. Brabant, S.M. Messrs Gane and Elwin, J.P.’e, also took their.seats on the Bench. G. A. Pearson v. N. McLeod. Mr Bailey for plaintiff. * Judgment summons, £4 2s Bd. 'Order made for 10s per month. E. Ballard v. J. McDonald. Claim, £1 18s Id. Mr Bailey for plaintiff. Judgment by default for amount claimed and costs 7s.

G. W. Bogers v. J. Gardiner. Mr Bailey for plaintiff. Judgment by default for £3 8s 4d and costs 6s.

T. A. B. Bailey v. Tamakaha. Judgment by default for £2 10s 6d, costs lls, interpreter 10s. G. W. Bogers v. D. Whaley. Mr Bailey for plaintiff. Judgment by default for £1 16s and costs 7s. Thos. Morrow v. F. Morris. Claim for service of stallion Ploughboy, £3 Bs. Mr Bailey for plaintiff, Mr Atkinson for defendant. Plaintiff admitted that should mares miss he promised to give the horse’s services free the next season, provided he did not sell him, but he had disposed of him in the mean time.

Defendant and his two sons stated that a guarantee of free service the following season was given, and that there was no mention made of selling the horse. Defendant was willing to pay £1 lls 6d for the mare which had a foal.

Judgment for £1 11s 6d with costs 12s.

A. Standish v. C. A. Trotter. Claim, £3 18s. Mr Bailey for plaintiff. Mr Atkinson for defendant. Defendant had entered into occupation of a blacksmith’s shop, the property of plaintiff, as a weekly tenant at 5s per week, but wished for a lease for five years. Plaintiff agreed to grant a lease and to put the place in repair, when the rent would be 6s per week. The lease, when presented for signature, contained a covenant that defendant should keep the premises in repair, and at expiration of term should hand them over in a state of thorough repair. Defendant objected to this clause and declined to execute lease unless the repairing covenant was excised, and considered he was only a weekly tenant in terms of his first occupancy until lease was executed.

His Worship held certain repairs bad been affected on the understanding that the increased rent was to be paid, and gave judgment for the amount claimed and costs.

W. R. Wrigbt v. W. D. Scott. Claim, £ll 15s, the value of two cows bought at Mr O’Connor’s clearing sale, and £8 damages for loss of milk through not having the use of the two cows.

Mr Atkinson for plaintiff. Mr Bailey for defendant.

W. R. Wright deposed : Attended O’Connor’s clearing sale on 16th September in consequence of an advertisement setting forth that O’Connor’s herd was to be unreservedly submitted to auction. A large number of cows were offered and represented as belonging to O’Connor’s herd. On the faith of such representation he -bought a number of cows. Tbo cows were all tar branded previous to sale, leading buyers to believe they were O’Connor’s. He depended on what O’Connor and Scott said with regard to the sale. Would not have bought cows but for the representations made in the advertisement and at the time of sale. Found after some time that one of those he bought belonged to J. C. Hickey, and another belonged to R. H. Pepperill. He then notified Mr Scott that he would return cows and deduct amount from P.N. Scott promised to see about it, but he (witness) had got no satisfaction. The P.N. became due and be refused payment until amount was deducted. At this time had only discovered that the cow branded 28 was rung in by Hickey. Subsequently he found out that the other had been rung in by Pepperill. He returned Hickey’s cow to O’Connor’s, but she jumped out and followed a mob of cattle to Scott’s yard. He called Scott’s attention to her being there, but his boy under misapprehension had driven her home again. He returned her again to O’Connor’s, and did not know what had since become of her. When he found out about Pepperill’s he also returned her to O’Connor’s. O’Connor put her in the pound, and he released her and took her home. When he retuened the first cow O’Connor said she was not his cow but belonged to Hickey. Scott admitted after the sale that she was Hickey’s cow. He claimed damages because he had got no milk from Pepperill’s cow and only a small quantity from the other one. There was.no statement at time of sale that other than O’Connor’s cows were there.

Cross-examined by Mr Bailey— Bought 11 cows averaging £5 each. Paid £6 5s for Hickey’s cow. She was being knocked down at £4 15s when O’Connor guaranteed that if she was not a good one she could be returned. Then she ran up to £6 ss. He gave £4 for Pepperill’s, which made £lO ss. It was an error in making out statement of claim in putting in £ll 15s. O’Connor was present at sale the whole time. Believed conditions of sale were read, but did not hear them. Did not return cows to Scott, but returned them to where he got delivery. The second cow was returned to O’Connor’s on March 19th. O’Connor put her in the pound. Released her from pound, and she was now at his place waiting Scott’s instructions. Neither of the cows had been returned to Scott. Would not keep cows once he knew they were not O’Connor’s. Of the other nine, four or five were fairly good ; two had been turned out to fatten because they were not satisfactory. Did not object to these because O’Connor’s cows-were

not being sold for any fault. Made an offer to accept a £2 reduction at the time he refused to sign P.N. Did not know she was Hickey’s then. Offered £4 5s for her then, although he now claimed the full value.

J. 0. Hickey deposed : Eemember O’Connor’s sale, when, as far as he knew, all O’Connor’s cows were sold. Had entered two cows at sale. One was sold, the other stayed home and was not offered. Could not say if the one sold was branded or not. Bought her six weeks before from Mr Carroll for £6. Did not give auctioneer any instructions about the cows. It was a customary thing for neighbors to put in cows at such sales unless anything to the contrary was mentioned, in advertisement. Did not know of his own knowledge who bought the cows. O’Connor during the sale kept cracking up the cows, saying they were giving five or six gallons, but no one that knew anything took much, notice of such remarks. O’Connor had gone to Scott and asked him how much such a cow, giving the number, had brought, and Scott said £5 ss, which amount O’Connor then paid him.

By the Bench : Had no reason to think that Scott knew she was his cow when he sold her.

Eobert Pepperill deposed : Had two cows at O'Connor’s sale in September. One was sold to Wright. Believe she was tar branded, as Mr Carroll had branded all the cows. Did not hear any statements made about his cow excepting as to the date she would calve. Scott would generally endorse O’Connor’s statement re the value of cows. She was not stated to 'be his cow. Had asked O’Connor for permission to put Her in sale. Had also spoken to Scott dtfring the sale about her, and Scott said she might be put up after O’Connor’s were sold. She was put up towards end of sale and brought £4. He was away having lunch when she was put up, otherwise he would not let her go under £6. Did not think Scott knew that that particular cow was his. Had not made any statement to the effect that most of the cows at O’Connor’s sale were rung in.

Cross-examined by Mr Bailey— Scott did not know she was his.

Be-examined by Mr Atkinson—Had not put on any reserve. His bid for the second cow of £6 was the owner’s bid, and possibly Scott would then know that she was his cow, as he bid £6 when the highest other bid was £8 19s.

Timothy O’Connor deposed; Kept nothing but good cows. Held clearing sale in September. Bemember giving Hickey permission to put two cows up after his were sold. Was not aware that Hickey’s cow was soW as one of his. She was not sold as belonging to any one, but was sold as one of his. Pepperill also got permission, and one of his'was sold. Did not inform Scott that he had given any one permission to put cows in. Had given Scott instructions to insert advertisement.

W. D. Scott deposed: Eemember putting in advertisement. Sold cows as,O’Connor’s, and as far as he knew at the time they were O’Connor’s. O’Connor had given him the instructions for the advertisement.

Cross-examined by Mr Bailey—At the time of sale thought they were O’Connor’s. After the sale O’Connor sent word that one belonged to Pepperill. Re-examined by Mr Atkinson— Wright had never come to see him about the cows. Had only come to see him about renewal of the P.N. Had never admitted any liability in the matter. Wright wrote and told him he wanted £2 taken off, and he wrote in reply that if he (witness) was not to be trusted for £2 that plaintiff was not good enough to be trusted for £6O, and therefore he had better send a cheque for amount. Had never admitted the £2, but wrote if it were so it could be adjusted. To Mr Wright: Damages had never been claimed from him by Wright until he put it in as a counter claim in the previous action for recovery of P.N.

After counsels’ address His Worship said that as the case involved a very important point with regard to the liability of an auctioneer, he would take time to consider his judgment. From the evidence adduced by the plaintiff it was clear that at the time of sale Mr Scott was not aware that the cows were other than O’Connor’s. As to damages, they could only be nominal, as first Mr Wright only claimed £2, and then the claim jumped to £l9 15s. He would send a written judgment to the Clerk of the Court on June 12th.