RESIDENT MAGISTRATE'S COURT.

Timaru Herald, Volume XXXIX, Issue 2796, 8 September 1883, Page 2

RESIDENT MAGISTRATE'S COURT.

TlMAßU— Fbiday, Sbpt. 7th. (Before J. Br-awiefe, Esq., E.M.) DBUNXENNBSS. Two men, chareed for the firit time with thi» offence, were cautioned and disohargod. CIVIL CASB. P Clayton t. A. Sherratt. Claim, £52, damages. Mr C. Perry for plaintiff, Mr White for defendant. In thu cage the queition of jurisdiction had been raisod by the defence, and Hia Worship holding that he had jurisdiction, notice was given that the Bnpreme Court, wonld be appealed to stay proceedings. Mr Wnite now stated that he had been informod that the order would probably be is?ual m dua time. The case wa» proceeded wilh, and was unfinished when the Court adjourned at fire m the evening till Monday morning. The tran(action upon which the case is founded is a simple one, but the testimony receiTed yesterday was Tery conflicting, and a great deal of time w»» occupied with minute crosi-examination of the differing witnesses, with the riew on eaeb side of breaking down tha testimony of the advene witness, but each one, though hardly tried, stuck to his story. The main facts appear to be these: About the end of October or beginning of Norambsr 1882, the plaintiff contracted to erect tha Anglican Church at Geraldine, a limit of time being fixed as usual, with a penalty of £5 per week for exceeding the limit, and all the timber required, between eight and niDB thousand feet, was to be on the ground bjr the 2nd December, under a separate penalty o£ £1 per week. The contract time wu exceeded by thirteen weeks, but the building Committee compromised, and inflicted the penalty for fivo weeks only. Too plaintiff, thronfb. his aon, G. O. Clayton, who had charge of the work, arranged with dofendar b for the supply of timber. Defendant took his order, and he aocepted defendant* price* ou Norember 25th. . After gome timber hfcd be«n supplied defeniiMt'uaili brok«dows,*fld

he became unable to supply the re«t within reasonable time and plaintiff therefore sent to Southland for it at some loss of Mmc and increased ezpenta. Plaintiff alleged that defendant had committed a breach of contract, •nd claimed us dnmigrs the £25 ho had lost m penalties ; £17, as extra cost of timber obtained from Southland ; and £10, to recoup lon on extra wages and for loss of plaintiffi time. The principal points of enquiry were the nature of the contraot between the parties, and whether or not the contract had been voluntarily or otherwise set aside by plaintiff, through bis agent, G. O. Clayton. The witnesses called by Mr Perry were tho plaintiff and his sod, M. de H. Dnval, the Brchiteot for the building, W. May, foreman of the carpenters, and R. 8. Cook, a member of the church bnilding Committee ; and by Mr "White, W. Henderson, clerk of the works, and the defendant. The defendant waa still under cross-examination when the Court rose. As to the nature of the contract, it ap> peared that plaintiff's agent showed an ordei to defendant, and on receiving a quotation foi fulfilling it, he accepted the terms, and the evidence of O. O. Clayton was to the effeol tbat the order was giveß to defendant on the distinct understanding that ho could nupplj the timber within a week of the time statod m the building contract, that is by December 9tb. Defendant, however, denied that he undertook to deliver it by that date ; he only undertook to deliver it "as fast ai he could " MoreoTer, there were lome very wide boards required, 24in x 3in, 30in x 3in and 83in x Sin, which defendant stated he told plaintiff he could not supply, and the Utter •greed to reduca the sizes, but never did so, Boards of these dimensions Mr Daval said could scarcely be got m the Geraldine Bush. They might be got with some difficulty m Feel Forest, but m no other bush ia South Canterbury. Defendent supplied the timber Tery slowly, and on the 12th December, only •bout 1200 ft haviDg been delivered by that time, G. O. Clayton complained of tho delay. On the 18th they met m Timaru, and defendant said his mill bad broken down, and it would be isme time before he could complete the order. The ovidence respecting what took placa at this interview was directly conflicting. Defendant's account of it was this :— I told him (G. O. Clayton) my mill had broken down. He said, " Well then, you had better give np the order." I said "No ; I km quite willing to supply the timber, and the men- are at work repairing th» mill as fast as possible." He pressed nu to give up the order, and I »till hesitated. I asked him if it would iacopvenienco him if I gave it up, because I did not w»nt to get into any bother about it. He •aid not the least. I said then I will give it up, for it might be a week or more before the mill is ready to start again. He showed me a telegram from Southland about a mill being burned down, and he asked me if I would give him a letter saying my mill was broken down. He wanted it to show the Committee, because he did not think they would fine him if they saw such a letter. I promised to write one, and we parted m a friendly way. I wrote a letter when I got home. — The letter was pro daced, and a passage ran, "I have had an accident at my mill, and cannot possibly deliver more timber for some time." Q-. O. Clayton's account of the interview, given before defendant*, waa that he declined to listen to defendant. Defendant bad told him his mill had broken down. He declined to listen to him as they met m the itreet, and told him he must have, something definite. He saw the letter written by defendant to his father (the one just quoted from) a day or two afterwards. Other witnesses gave evidence as to the alleged waiver of contract. B. 9. Cook said Clayton told him some time m December that be had asked defendant to give up the order m writing, and he had done to. W. Henderson said Clayton told him about the 13th December that he was going to relieve defendant of his contract, bnt be wanted a letter from him giving ud tho order, for fear that he should still supply the timber, though be got it first elsewhere. Afterwards, when he saw the time for building the ohurch would be exceeded, Clayton said if any penalties were enforced, he would make defendant pay them. Witness said lust would be rather hard, as he was so late m giving the order. Clayton most positively denied having told either Cook or Henderson that defendant hod given up the order. A great deal of time was spent m questioning witnesses about the source and purpose of different lots of timber, and m questioning defendant and G. O. Olayton about the dates and purport of correspondence that passed between them, and defendant as to what had become of the original order and a note or two, which he supposed must have been lost when shifting his mill. At the close of the plaintiff's case Mr White moved for a nonsuit, on the grounds tbat the contract was waived by mutual cmlent, ss had been shown by the plaintiff's own witness, Cook ; that plaintiff by his action bad precluded himself from bringing any action by accepting the timber that was supplied and osing it after the date of the alleged breach of contract. In support of the second ground, he quoted two authorities to show that if different goods or a smaller quantity of goods than those contracted for, are delivered and accepted, the acceptance constitutes a new contract and a waiver ef the former one. Hit Worship declined to grant the nonauit. He was satisfied there was a case to answer, and a case that should be decided on its merits. - The slight consideration given to his arguments by His Worship somewhat hurt Mr White's feelings, and a scene occurred which unpleasantly interrupted the even tenor of buiines). Mr White said hs was singularly unfortunate m never being able to bring forward an argument sufficient to convince His Worship. The Utter replied that he did not think Mr White had any causa to say so ; he had often convinced him by bii arguments. He considered this was not a Court m which technicalities were to be fought over, but one m which the real merits of raises should be inquired into. He had neve:r seen a Court m which technical points were raised so frequently as m the Timaru one. Mr White said His Worship did not always distinguish between technicalities and legal maxims. He hoped His Worship did not mean that he (Mr White) was too fond ol raising technical points ? His Worship nevei said so ; but they would not pursue the sub - ject further. He would not grant the non euit at that stage. The further hearing of the case was ad- 1 ' journed till Monday at 11 a.m. I