Thursday, 26th August. ROBINSON V. M'GREGOR.

Otago Witness, Issue 1240, 4 September 1875, Page 5

Thursday, 26th August. ROBINSON V. M'GREGOR.

The plaintiff in this case is William Robinson, of Invercargill, and the defendant ]S T . J. B. M'Gregor, of the Taieri district. Mr G. E. Barton for the plaintiff, Mr Macassey and Mr G. Cook for defendant. In this case there was a rule and a cross-rule. The rule of the defendant's counsel was to enter a non-suit, or to arrest judgment for the plaintiff, on the ground that the declaration did not show sufficient cause of action, That for the plaintiff was to increase the amount of the damage which had been awarded hjm by the Jury from 40s to L 52 3s ; or, failing that, order a new trial to be granted, on the ground that the verdict under the sixth Issue (that of the amount of damages awarded) was against the weight of evidence, The two rules were argued together. Mr Barton read the facts of the case as adduced at the trial, the proceedings of which were reported at the time. The question was one regarding an agreement made between the parties by which Robinson was to dear the wild cattle off M'Gregor's run, No. 39, at the Taieri, within six months, and which agreement was never carried out, it being alleged for Robinson that M'Gregor had hindered and prevented him. Mr Barton submitted there was an implied promise in the agreement that M'Gregor would not prevent Robinson from carrying it out. 1 hen name the question: Did M'Gregor prevent and hinder him. Mr Barton reviewed the evidence adduced at the trial, and submitted that M'Gregor had thrown obstacles in the way to prevent the contract being carried out, and that M'Gregor himself was to blame if an action was brought against him. He quoted a case, the heading of which was, "If a party so conducts himself as to prevent the other from performing his contract, no action will lie for the. non-performance by such person." Here plaintiff was, he submitted, ready to carry out his conditions, the defendant would not perform his part, and plaintiff was justified in throwing up hu contract, and had sufficient cause for bringing an action against defendant. Regarding the questionof damages, he submitted that a verdict for 40s damages, instead of £52 03, the latter being the amount which Robinson's share of the cattle sold would come to, showed a compromise among the Jury, and this, he submitted, would, in case of the Court not awarding the latter amount, be a sufficient reason for a new trial.

Mr Macassey replied. On the question of tlamages he submitted that the Court could not alter the verdict of the Jury except in pursuance of leave reserved, and that if there had been a compromise it was not a sufficient cause for ordering a new trial, and that plaintiff had obtained the benefit of the compromise if there had been one. He submitted that the weight of evidence showed plaintiff had not been able to carry out the contract. Mr Cook followed, and had not concluded his argument when the Court rose.