District Court.

Southland Times, Issue 9280, 27 July 1886, Page 2

District Court.

Monday, 26th July. (Before His Honour Judge Ward.) CIVIL BUSINE3F. His Honour took his seat at 11 a.m. DUNEDIN IRON AND WOODWABE COMPANY V J. F. BRUNTON. Claim, Llso.— Mr Russell appeared foi the plaintiffs, and Mr Finn for the defend ant. — Mr Russell having objected that dc defence had been filed, Mr Finn stated that h>'s instructions were merely to sot that the plaintiffs proved their case. Mr Ruseell stated (hat the plaintiffs were James Williamson and John Murray, trading under tha stylo of the Dunedm Iron and Woodware Coinpauy, They sned tc recover the sum of Ll5O undor the following circumstances : On or about the 10th September, 1885, tha defendant, Johu Frederick Brunton, made and gave to the plaintiffs an instrument by which he agreed, in consideration of the plaintiffs supplying Mrs G. F. Richardson with furniture and goods to tbe value of L2OO, to guarantee payment thereof in terms of arrangement with her, namely, in three monthe, The time had elapsed, and with the exception of LSO the price of the furniture had not been pai'J. Evidence would bs adduced to prove the plaintiff's claim, the guarantee would be produced, and it would be ahown that furniture and goods had been supplied to the value of nearly L3OO. Instead, however, of deducting the LSO from the total amount due, it had been agreod, as a concession, to reduce the amount of the guarantee by that sum. James Cox Thomson, accountant and assistant manager to the plaintiffs, gave evidence in support of the claim. Ho had not actually seen the goods delivered to Mrs Richardson, but she had admitted receiving them, and on the 9th Juno lav the defendant, Brunton, had ciilod at, the Company's uffi'jes and offered to give his own bills at six, twelve and eighteen months in payment of the amount due. Witness suggested that he (Brunton) should get an endorsement to the bills, and he consented to do so and also to pay the costs which had been incurred. Mrs Richardson had paid tho LSO on account with Brnnton's cheque.— By Mr Finn : The Company was not registered. One of tbe partners was Johu Murray, of Auckland, Inspector of tho Bank oii i^ew Zealand, aud tUe other

the Hon. James Williamson, of Auckland. He could not say that the business actu- '■ ally belonged to the Bank of New Zealand. Mr Rassell went into the witness box i and tcndeted his own, evidence. In June last Brnnton called on him at his office and [ presented three bills, representing the & g£ te FM Q amount now sued for. Brunton stated that the Company had agreed to take these bills in settlement of* their claim, and he added that it* was hard lines to have to pay the account, Mjs Richardson having disposed of the furniture and gone away. Witness said "You signed the guarantee, ahd you ought to knowby this time that when one signs a thing liko that toe generally has to pay." Brunton then replied, "I bad no idea of that, but thought it was a .very different matter. 1 thought I was doing no more than representing that Mrs Rich. ardson was a respectable person." Along with the bills Brunton handed the witness the Company's account corresponding with the amount, aad stated that he had lost tbe letter which had accompanied the account. He (Brunton) eaid he could, however, assure witness that ho had nothing more to do than hand the bills to him. Witness told'Brunton that he hai no instructions to receive tbo bills, and would only take them on condition that the Company would accept them as satisfactory,- Witness took no responsibility, but told Brunton that he would telegraph to Dunedin informing the Company that he had received tbe bills subject to their approval, and that he (Srunton)bad undertaken to pay (O3ta to the extent of Lls. Later on in the samo day Brunton came back and said : " You bad better give me back those bills, as I was to get an indoraeniant which I am unable to obtain." Mr Morrah, solicitor, was with the defendant on thig occasion, and confirmed Brunton's statement, This closed the case for the plaintiffs. Mr Finn submitted that the plaintiffs must be non-suited. There had been no guarantee aa to the parties, but only to the manager, whoever he was. His Honour said that the guarantee given to the manager was practically to the Company, especially as the agreement had been acted upon and the defendant had offered to give bills. Mr Finn then submitted that the delivery of the goods had not been proved beyond all doubt. His Honour said they had the acknowledgment of the defendant that the amount was due. Under the circumstances hfe had no choice but to give judgment for the amount claimed and costs. B. AND N.Z. COMPANY V, JAMES MILNE. Mr Rassell appeared for the plaintiffs ; there was no appearance of or on behalf of tho defendant—Claim, Ll7B, on a promissory note. Tho evidence of George Todd, assistant manager to the plaintiffs, having been taken, judgment was given for the amount claimed with costs. ALEXANDER NICHOLSON V. JAMES B. POB" TEOUS. Claim, L2oo.— Mr Wade for the plaintiff and Mr Russell for the defendant. Mr Wade eaid the plaintiff was Alex. Nicholson, a bushman, occupying eection 2, block 2, East Winton, and the defendant^ James Bowie Porteous, a. farmer owning land adjoining the said section. The action was brought to recover damages for injuries which, it was alleged, the plaintiff had sustained through the negiigenco and carelessness of tne defendant in lighting a fire on his property and allowing it to spread to the plaintiff's section. It was further claimed that the defendant had agreed to refer the matter to arbitration, and that expense had consequently been incurred to a considerable extent. The plaintiff claimed Ll5O for the damage done to the timber on his section, and LSO for breach of the agreement to refer the matter to arbitration. Toe defence filed admitted the agreement but denied that the defendant had refused or neglected to carry it out. The other material allegations were denied and the Statute of Frauds and the Land Transfer Act were pleaded. The facts were that on the 12th February the defendant appeared to have set fire to some cut timber, lying-on his land near the boundary of the plaintiffs section, and that the fire spread until it destroyed some valuable manuka timber on the property of the plaintiff. The defendant had not been seen to start the fire -but he had been seen to feed it. Besides the growing timber a quantity of posts and rails which had been cut and were lying on the plaintiff's ground were destroyed. Alexander Nicholson gave evidence, from which it appeared that the lease of tho section had been sold by the Otago School Commissioners through their agent Mr J. 0. McArdell, to a man nfmed McArthur, and that McArthur had transferred it to him, the plaintiff, Mr Russell contended that as the transfer from McArthur to Nicholson had not been sanctioned by the lessors, the plaintiff w&b not m legal possession of the land. At any rate, the leaße not having been registered in accordance with the Land Transfer Act, the occupant had only a tenancy at will, and had no right to claim for damage done to the timber on the land. Mr Wade argued that as the plaintiff had been the occupant of the section, and as the School Commissioners knew that he was, and had accepted rent from him, he was .entitled to the timber on the land. The conditions of his lease were that he should clear the land within a given time, and his object in taking up the section had been to obtain the timber. His Fodoiu said it would be necessary for Mr Wade to show that the present plaintiff was not only the occupant but the person entitled to claim for any damage done to the timber. The documents in the case did not appear to amount to a complete title under the Land Transfer Act and a tenancy-at-will would not give the occupier the right to c!aim for damage done to the timber. After argument at length, Mr Wade said that after the expression of opinion which had fallen from his Honour it was obvious that the case must fail. He had therefore agreed with Mr Russell, subject to his Honour's approval to accept a non-suit without costs. His Honour thought Mr Wade was quite right in adopting this course, and entered a non-suit accordingly.