SUPREME COURT.

Taranaki Herald, Volume LXVII, Issue 16612, 11 December 1919, Page 6

SUPREME COURT.

WEDNESDAY’S PROCEEDINGS. (Before the Chief Justice Sir Robert Stout.) RACEHORSE CASE. JURY FINDS FOR DEFENDANT.' After a retirement of 3i hours the jury in the case of Laurent v. APGinty, returned with answers to the questions submitted to it as follows: Did the plaintiff lease to the defendant two racing mares by the agreement set out? —Yes. Did plaintiff and defendant agree to rescind the contract and, if so, when? —Yes. At ITawera. Were the iiorses when leased fat, tor racing-'—No. Did Haversack become lame because of an injury suffered by her before January 11, 1919?—Yes. Did Haversack become, through lameness, permanently unfit for racing? What damages, if any, is tho plaintiff entitled to recover?—Nil. His Honour gave judgment accordingly, with certain costs against plaintiff:. SALE OF FARM AND CATTLE. CLAIM FOR SPECIFIC PEEFORMAAEEa. William Holman Claris, of Haweia, Emily Aim Elans, ins w.ie, and Franz BiaUier, of Mauaui (plauiuns; v. Harry Element, Eliza ucta S. Element (wile of \V. C. W. Clement), and \v. Clement, all of Elcnam (aeieiulants)—■ Claim lor speciuc pc-rlormance, or, in the alteinative, damages of £2OOO ior uoii-coiupie-uon oi contract. -Ur. E. n. la.noi (Hawera) appeared for plaintiff and -Ur. G. D. Gow iSllliam) ior delendaut. Tlie statement of claim sot out that by an agreement dated duly 20, 1919, Elans and Ins wile, partly lor themselves and partly on account ot ijlatileij undertook to sell to Harry and Euzabetli Element their leasehold interest in certain sections at ie Kiri and that the sale of certain cattle and otucr chattels for the sum of £1483 10s was also agreed on. Walter Clement agreed in writing to .guarantee the due pciloiinanco of this contract by the other two defendants. Defendants accepted possession of the laud and chattels on August 1, according to tho agreement, ami sold the chattels. Within seven days from the date of the contract delcndants wore required to hand to plaintiffs sufficient duty to stamp the contract and statutory declarations of their eligibility to bold the leases together with transfers of tho leases in favour ot the defc'iutaftts. alleged tluit dcfondants had refused or neglected to pay the duty and had not until September S handed over tho declarations and transfers. On completion of the contract thpre was payable by defendants £1250 in respect of the laud and £l4bJ 10s in respect of the chattels and ol these two amounts only £IOO9 bud been paid. Plaintiffs sought performance of tho contract by payment of all duties and fines (if any) payable on the contract and all other moneys payable under tho contract by tho defendants accepting transfers of tho leases and giving to the plaintiffs tho mortgages mentioned in tho contract. In the statement of defence* it was set out that the defendants in entered into negotiations with Blattlei (who had bought the leases from Elans but without the transfer or the moi t-ga-rc from Blattler to Clans being registered) for the purchase of tho land, but was informed that the title was m the nanms of W, H. and E. A. Clans and thereupon entered into negotiations wkli W. H. Claris which ended m the agreement being entered into. I bo defendants claimed that _ the chattels comprised, among other tilings, oG dairy cows and seven heifers. i-hey denied that formal delivery ot tho stock. \\as made on August 1. They said it was agreed between them and plaintiffs that the stock should be sold on August <, an arrangement being made witu tho auctioneer that out of the piocoedsa sum of £IOOO should be paid to AV. H. and E. A.' Claris. On the day oi the sale the defendants entered upon the laud for the purpose of taking delivery of the stock, but found that the stock had not been mustered prior to thenarrival. The stock was mustered by Blattler, as agent for plaintiffs, as tho sale proceeded. Only 44 dairy cows and two heifers were produced and sold; die balance of 12 dairy cows and five heifers had never been delivered to the defendants. In addition to the stock sot out in tho agreement 12 cull store rows wore produced and sold. The proceeds of the sale (including tho culls) amounted to £862 16s 6d. The auctioneers paid to the plaintiffs ns agreed £IOOO and, after allowing for their commission, debited defendants with the balance of £lB2 17s. The defendants hail at first overlooked their obligations regarding the stamping of the agreement of tho handing over of the declarations. but had carried them out before the issue of the- writ in, the pio-cecclino-s. They had paid £IOB 11s 3d in stamp duty and £27 2s lOd in fines. They had also paid to plaintiffs the sura of £1250. The defendants claimed that the sale of the land was subject to obtaining the consent of tho Public Trustee to the transfer of the lease and that the plaintiffs had refused and failed to obtain this consent; they had refused to complete the land transaction unless the sale and purchase of the goods was completed contemporaneously. By way of counter-claim tho defendants said that the plaintiffs had failed to deliver 12 dairy cows and five heifers and defendants therefore claimed £3OO for damages, It was' mentioned that the land was bought, not as a dairy farm, but for the milling timber that was on it and the purchasers agreed to take tho cows because otherwise they could not get the land. For the plaintiffs evidence was given by Franz Blattler and John C. Hobbs, of Hawera, auctioneer for the Farmers’ Co-operative Organisation Society, Ltd. Tho latter deposed that the sale was conducted for Clement and the account made out to him. Fifty three dairy cows and one heifer were sold. The latter witness was questioned as to whether all tho cows might ho described as dairy cows, and he said that several of the cows were threo-teaters and others did not appear to bo in calf. His Honour said lio supposed a cow did not need to be in calf to be called a dairy cow. Mr. Gow agreed that the evidence of -the auctioneer reduced the number of the dairy cows not delivered from 12 to three. For the defendants evidence was given by Walter Clement, sawmiller and farmer, who said that when lie went to the farm on August 7 the cattle had not been mustered separately and he could

not count them because there were other cattle about. Since the sale another cow had been found on the property. This reduced tjje number of missing to two. His Honour asked what had become of the missing heifers. Mr. Gow replied that that had been the trouble ail through. They had not been traced and plaintiffs had refused to agree to any allowance respecting them. The land was partly in bush and partly in grass. His Honour remarked on the slipshod and unbusinesslike manner in which the delivery and sale of the cattle had been conducted. Mr. Taylor said that one of the cows had died after August 1 and plaintiffs had always been willing to allow £l7 10s on that account. The number of missing cows was thus reduced to one. Regarding the transfer of the leases Mr. Taylori suggested that the matter should bo referred to the registrar to show that the vendor had a correct title. His Honour deferred giving his decision. DIVORCE. CUSTODY OF A CHILD. As the sequel to a defended divorce action —D. J. Hepburn v. Mary Hepburn and J. 'E. Sole (co-respondent)— in which the court made a decree nisi which became absolute, the father petitioned for the custody of a child which was in the care of the mother. Mr. D. Hutchcn appeared for petitioner and Mr. L. A. Taylor for respondent. His Honour said there was no necessity for an order of the court as the guardianship of the father had not been alienated.