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Delivering judgment m the case oi Frank Sloan v. Harry J. Richardson and Edward' Bai (Mr J. Dawson), Mr W. A. Barton, S.M., at the -Magistrate's Court yesterday stated:— . The plaintiff says : (1) That by a. certain agreement bearing date the 6th day of August, 1914, the defendants agreed with the plaintiff to fall/mill, and deliver at the JMatawai railway siding certain millable timber as iii such agreement set 'out. (2) Tlie plaintiff agreed to pay the defendants , at tho rate of seven and six pence* per ono hundred feet trade measurement for all millable timber so delivered. (3) Tho defendants m pursuance of the said agreement delivered certain timber to the plaintiff at the said Matawai siding and obtained payment for the same at the rate of seven and sixpence per one hundred feet according to the tal lies supplied tty the defendants. (4) That by reason of the defendants tallying other than commercial timber mid overstating the delivery the defendants wrongfully and fraudulently obtained credit from the plaintiff and were paid for a greater amount of timber than they actually , delivered and that the Dlamtiff m consequence thereof has suftered damage to the extent of £96 10s lOd on .the sale of the said timber to two of his customers. ("5) The plaintiff has suffered further damage m the loss of trade or business .consequent on the defendants cutting and supplying other than commercial timber, -.and* timber of inferior quality to the extent of £100. Wherefore the plaintiff claims to recover m all from the defendants the sum of £196 IQs lOd. 1

From the evidence it appears that m accordance \yth the agreement referred to 'm -the statement of claim the defendants' cut, carried, arid stacked at the railway aiding, Matawai, 45,590 ft of tilnb'er— Seven, -truck loads— for which defendant received payment or allowance m the settlement between Jthe parties. The timber m question remained at the railway siding for over four months and plaintiff says that it was then railed to .Gisborne, consigned to the Poverty Bay Sash and Door Factory Go. The plaintiff further says that he superintended the loading Of six of the seven trucks, and found the timber m. a very bad state, hut that ;he did not deem, it necessary to send for either of the defendants to point out the condition of the timber to them. The defendants ceased cutting timber about the middle of October, 1914, after which one Axel Jarlov started cutting .for -the plaintiff, and when he ceased the plaiptiff^ cut timber himself and all! that was cut by Jarlov and himself -Was deposited at; the Matawai railway siding, but was kept separate from, that placed there by the defendants. JamesHill, yardman, m the employ of the !S___h and Door Factory, says th^t he /remembers between the months of January and March, 1915, receiving timber from, tbe plaintiff, but could not say how many truck loads, and that it was m a bad state, being shattered and unsaleable, and that a considerable quantity of it had to be. recut, hut that he could not say whether it rormed any rb of the seven truck loads referred by: the plaintiff. The witness says that; timber allowed to be espied to the sun would become warped and damaged, but that that would not .account for the shattered condition of the timber. The evidence of the defendantß and Daniel Rntter and Axel Jarlov, who were m the employ of the defendants when the timber m question was cut, is that no uncommercial timber was sent away from tlie mill during the period -that' deferidsiits were cutting, and this is confirmed by Horace Marshall and Edward Hooper, who caxted all the timber cut by the defendants to the Matawai railway siding, and they say that -plaintiff frequently saw them loading and unloading the timber an,d mad© no complaint whatever as .to. its condition. The witness Hooper says he saw -the plaintiff loading into a railway truck" part of the timber cut* by the defendants, ahd knowing tliat itf had been stacked for over four months remarked to plaintiff that there was not much damage from mildew, and that the plaintiff thereupon replied, "No, ik ia^ a fine lot of timber." Plaintiff* admits having' made this remark, but says .that he only meant it' to apply to the absence of 'the -mildew m tho timber. Tbe evidence of the plaintiff is that he did from time to time complain tn the defendants of faulty timber, which the defendants, "absolutely deny. There is no doubt that inferior timber from the -plaintiff's mill was sent to thi_ 'Poverty Bay Sash and Door Factory 'Co. To entitle plaintiff to suoeed m this action I must be . satisfied the timber referred to by Mr Hill, the yardman for the Poverty Bay Sash and Ij)oor Factory Co., was part of the timber icut by the defendants and deposited by thehi at the Matawai railway siding, t am not satisfied that •such i** the case. It is admitted' by plaintiff that It waa lying at the Matawai railway siding for over four months and that being so it is quite, po'ipible. I'that some of the good timber may 'Ka-ve been ."riemoved from th© seven ,tru/>k loads and replaced by timber of inferior quaJity. It is also possible that the uncommercial timber described by the witness Hill may have been •portion of that cut by Jarlov or whilo the plaintiff was m charge of the mill himself. If the timber cut by the de-, fendants was m the faulty cOhditiort described by the plaintiff it was clearly his duty to notify tbe defendants' of it before railing it to Gisborne. The defendants say the first intimation they had of this claim was about a week before the commencement of these proceedings., ' For the reasons given I am of the opinion, that the plaintiff is not • ejititled *to succeed m this aftioT'. Judgment will therefore be entered for the -defendants, with costs. Costs of 'ffcfjjrt 12s, witnesses expenses £5 7s, Boiieitor**. fee ,£9 1657 ■ ' ' '

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MAGISTRATE'S COURT., Poverty Bay Herald, Volume XLII, Issue 13820, 21 October 1915

Word Count

MAGISTRATE'S COURT. Poverty Bay Herald, Volume XLII, Issue 13820, 21 October 1915

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