RESIDENT MAGISTRATE'S COURT.

Timaru Herald, Volume XXXIX, Issue 2798, 11 September 1883, Page 3

RESIDENT MAGISTRATE'S COURT.

TIMARU.— Monday, Sept. 10th. (Before J. Beswiek, Esq., E.M.) DBUHKBNNBS3. Three men were charged with this offence. One first offender was fined ss, another 10i, because be did not appear punctually m answer to the summons, and the third, named Brant, was also fined 10s, he having been up before. CATTLB AT LABQE. Hugh De-Tine was fined 5s a bead on seyen head of cattle astray on tho 3rd injt, on the Wasbdyke road, with costs 10a. LABCBK7. Samuel Mnrtin, a youth, was charged with stealing £5 16s and a portion of a gold ring, 4he property of Henry Bcarfe, at Timaru, on tbs sth init. At the request of Inspector Broham, he was remanded till Wednesday. CIVIL OASES. P. Clayton t. A. Sberratt— Claim, £52, damages. Mr Perry for plaintiff ; Mr White for defendant. Ibis case, adjourned from Friday, was re' tamed, the defendant going into the box foi re-examination by Mr White. In referonct to the loss of some of the memoranda con' neoted with this case, defendant explained that m shifting his mill a number of paperi loit. The first intimation be bad thai

plaintiff intended to take proceedings against him tt*B given m March, plaintiff then telling him, on being asked for pavmont for the timber delivered, that if ho had any legal ground at all he would iim him for damages and the next he h?ard of proceedings was by letter from Messrs Perry and Perry, on the 15th June. Mr Duval was recalled by the Bench, and asked what was Hie cause of the delay m completing the building. It was, he said, owing to the want of timber. Plaint'ff went on with the work as fast as ho possibly could under great disadvantage. This cloaed the defendant* case, and Mr White then addressed t'i-' Benoh. He submitted that there was n> binding contract entered into between the parties, or that if there were it waß net asido by mutual consent. Where a contract was mado by correspondence, there muit be an explicit statement of terms, and an explicit acceptance of the terras stated. An imperfect, equivocal, or unqunlified acceptance by one party of the terma proposed by the other party, was not sufficient to make a binding contract. (Leate on Contruct?, p. 2fi, et seq). Mr White quoted from the evidenco to fhow that the contract m question was inperfeet, the terms stated by neither side being fully aooeptcd by the other. The same authority (p 788) shewed that such contracts a? "this purported to be could be disdnrged by mutual consent, or any alteration of the terms of the original agreement would discharge that agreement, and both tho alteration had been made and the mutual consent expressed, therefore the contract wa« void and tho defendant not liable for breach of it. Mr Perry, m reply, commented srverrly upon tho evidenco given by defendant, and witnesses Henderson and Cook, of the defendant m his aocount of the interview with Q. O. Clayton regarding his giving up the contract, and of the two witnesses m »tating that Clayton told them ho had reteas»d or would release defendant from the contrant. As to the existence of a contract, h» submitted that the oral evidence and the documents produced proved th»r, particularly the defendant's having booked ihe order showing ho had accepted it. and his delivering some timber m accordance with- it was conoluiive proof. As to the waiver of the contract, urged by Mr White, he quite admitted all that his learned friend advanced, bat his arguments referred to his setting aside of contracts before breach, and m this case the contract was broken on the 9'h Pecember, the tunbfr not being then delivered, while the steps supposed to have set the contract aside were not taken till the 18th and following days, and (he evidence nf Henderson and Cook relative to this point referred to dates subsequent to the 9th. Mr Perry quoted from Chitty and from Addis >n on Contracts to show that whilst a parole agreement could ba set aiide by consent before breach, it could not bo to simply discharged after breach. He denied that his client had ever waived tho coniraet. His Worship reserved his decisinn, saying he would probably give it on Friday.