DISTRICT COURT.

Timaru Herald, Volume XXXIX, Issue 2829, 17 October 1883, Page 3

DISTRICT COURT.

TlMAßU— Tuesday, Oct. IG. (Before Hii Honor Judge Ward.) j IX BA>iXBri>TCY. Orders of discharge were granted as fol- , lows: — To 11. Stowell, on tho application of Mr I H. L. Forster. To James Bodiliok, applied for by himself. ' His Honor criticised the documents filed by the debtor, and inquired from whom ho obi tamed the information to enablo him to pre- ■ paro them. Tho debtor said ho got a form from a lawyer's clerk m Timaru, a Mr Badj man. who gavo him other aejiehmce, all for \ nothing. |lli< Honor said Mr Badman had ; been sailing very close to the wind. There | were a great many blunders and errors m the , affidavits, but ho would grant the order. I To D. Munroe, on tho application of Mr I Knubley. , To V. McC&skill, ou the application of Mr , Hamereley. To G. W. Creamer, on the application of ', Mr White. 3 CITIL CASE. Samuel Green t. New Zealand Loan and 1 Mercantile Agency Company — Claim £173 15« lOd damages. ,' Mr White, with Mr Clement, for plaintiff, j Mr O. Perry for defendants. , Tha ca§e was heard before the following as , a special jury : — J. Anderson, W. Annand, T. t, Arscott, and H. K. Anderson. r The broad facts of the plaintiff's caiu wero B stated m the particulars of claim, and orI plained by Mr White as follows : In the middle of 1882, the plaintiff, a farmer at i Deep Creek, near Waimate, had a quantity o( i good wheat stored m defendants' store at „ Studholme Junction, and had obtained on tho 2let July an advanoe of £140 on it, delivery continuing after that date. Defendants' 0 Bgent at Waimate was authorised to cell the „ wheat, but not undor it 8d per bushel, this 8 arrangement being mado m May. At an auction sale m this storo m Brptomber, 161 ir bags were sold to Messrs Meok at 4s 4J. The |. plaintiff did not objoot to the sale »t thnt price, ( f though it wos lees than his reserve, because II wheat was falling m price then. Tho baluico v remained m the storo, and tho next plaintiff heard of it was from receiving account sili-a showing it had been cold m Dunedin without his knowledge, 143 sacks at 2»6d per bushel, 112 ot 3i, 28 at 3s 2d, and 6at;ii4d, notwithstanding that he had placed the reeorvo of 4* 8d upon the whole. 10 sucks were not sent to Dunedin, as being so much damaged ub tobounealeable.and fcbeaa plaintiff took possession of again. It being asserted by defendant! that the grain or much of it was damaged, and the prices realised wero fair, tho plaintiff charged thorn with negltoting to take proper care of it, whereby it becamo spoiled, and further allegod that by some inistako or carelessness tho grain had boen ohanged m tho bags, and other people's wheat, of inferior quality, had boen substituted for plaintiff's, and ho had theroforo been required to accept payment for rubbish sold which was not really bis. Ho claimed as damages tho difference between tho prices obtained, and 4s 4d per bushel, tho prico obtained for a parcel of tho wheat. The defendants' pleas asserted that no reserve was placed upon the grain when it was placed m their hands for sale, thoy being authorised to sell to the best advantage ; that the grain sold at tho prices above quoted was plaintiff's, and that those prices wore fair pricos for tho grain according to its condition ; that the grain was damaged before it was received into tho etore, and the store being a sound one, it could not possibly have 1 received injury therein. Samuel GreeD, plaintiff, stated that m 1882 1 ho had about 1(10 acres of red chaff and 1 velvet chaff wheat. He threshed it m May. The bags, which b. 9 got from defendants, wero branded "S. Green " with a ttoncil plate, eomo oontoining damaged grain from r the top of the stacks woro further marked "D," f others loss damaged with a ruddle cross or streak. Some of the wheat was stored m o ' barn on the farm, and some token to defen^ f dant's store at the Junction, ull tho bagf i marked Dor with the tuddlo going to tin barn. Moat of tho damp wheat was sold foi 1 seed soon after threshing, at 4» a bushel, am ■ he sowed some himself. Tho bulk of thi f grain was eound and bright (samples pro il duced). Two bugs, one of each kind, wen '• sent to the Btoro as samples for tho auctioi r salos of May, before any had been stored None was cold at the auction, but ho wa

offered i% 6d by Mr Stegal] after the sale, on tho Bamplee. He had obtained an advance on t)in grain, nnd was pr. s-ed to sell by Mr SeiTctim, I lit- defenilaitß* iigent at Waimato, but, he refused to sell at less than 4s Bd, and referred to his refusal of Mr Stegall'a offer of 4< fid. A quantity waß afterwords Bold to Men-re Alefk at 4* 4d, and ho did not demur, an wheat was falling. Later he was told thai more hod been sold, and he got the account sales of the wheat, sold m Dunedin. (Tho prices are given above.) He went to Mr Becr»lan and told him it could not be his wheat to go at such prices. Mr Secretan eaiil a lot of it was damaged and ten bags were not fit to send at all — were only fit for pig feed. Plaintiff was Buro hia wheat was nil good when put m tho Btore. Ho saw the ten bags left m the store, and was certain it was not hiß wheat that was m them. The bags had hia nntne on, bul neither D nor a rudrtle mark, by which he had distinguished his damaged and darr.p wheat, and tho bags appeared to havo beon re-sown. Purdew, the Btoremnn, said tho bags had not beon touched, but he (plaintiff) was sure they had been reBewn. ile took them homo and had krpt them carefully. (3ample produced, grain quite brown and mouldy.) There were Danish oats among tho wheat m them bags, s.n(l he had never had Danish cats on his farm till the last season, and hio wheat m> freo from oats of any kind. He got " clean " receipts for tho gruiri dolivered, hik! he tU'W it wns the practice of tho ('ompany to indicate on tlio receipts if deliveries wero not m proper order. In reply to Mr Perry, plaintiff said he could not remember how much wheat was damaged or damp — " from one to two hundred eacks." He sent 361 sacks to tho company, and shipped 600 Home through Miles, Archer, and Co., getting an advanco on this. When ho nmdo the arrangement with Mr Secretan about the 4j 8d Mr McOwen was present, and pressed him to tell — he "mint have the monry." Mr LeCren was there too, md mid something about shipping the wheat Home if thoy cnuld not get a good price for It. Mr McOwen asked him to put, the wheat, ti defendants' store, and he gave him an order 0 recoive the proceeds. Thij satisGed Mr McOwen, but Mr Secretan pressed him to ■ell when it was m the store. Ho had an idva»ce from him of £110. Tho gotid 'amples shown represented tho good wheat >ent to tho Junction, and a'so that cent to Vtilos, Archer, and Co. — it was all alike good, tlo held out for is 81, and nover gave initructions to reduce tho reserve, but. he did lot expect to get 4*Bd after the sale to Meek, md would have been antisfied with 4a 4d. To Mr Clement : Did not demur at the fale ,o Meek at 4s 4d, because he did not know whoßß stuff was being knocked down, the 'ales being from ca'alogue by numbers. Ke md nothing to do with the delivery to Meek, md did not know whoso wheat ho got. The en sacks taken back had not got any Danish sats mixed with them m the barn since. He jad kept them very carefully covered up. Michai'l Welsh Btated that he was m plainlifl'a employ m 1882. and with another named Harris, ho carted boibo 300 sacks of wheat to the difendnnts' store, m May, 1882, :rom the threshing machine m the paddock, uid xiii carting, off and on, about two month*). Die grain was all m good condition, and limilnr to tho good samples produced. What ivas not taken to tho Junction was taken to plaintiff's barn, and it remained tboro till ho eft plaintiff's service. Did not recollect the itoreinau saying that any of the grain was 3amp. Xborras Harris gave similar evidence as to the carting and the quality of the grain. He ldded that about Christinas of last year, While, a man employed m tho store, told him they were putting Green's wheat through iho fanners to clean it. He did not think \ny of Grcen'9 wheat needed cleaning again. Ihere was a little cockle m it, but no oate. Cornelius Ryan stated that he helped to Qll, weigh and carry tho bags from the machine at the threshing. The damp wbout was marked D, and kept separate from tho good, and a stroke of ruddle was put on teeond-clußs, and both this and tho damp were takon to the barn, Welsh and Harris carting the good to the Junction. Was sum there were no outs m Green's wheat. Had recently been shown ton bags of whoat m Green's barn. Tho bags wero marked "S. Green," but had no other mark, as they would have had if they had been tiled with dump corn at the threshing. He did not know what was carted to tho Junction after the machine left, however, and when they left, sotno wheat remained stacked m tho paddock, covered with straw. Michael Cavanagh Btated that ho sewed the bags at tho threshing. The tops of the stacks had been damagod by wet. The growing stuff was thrown aside, and the damp merely was put through the machine, and tho bags marked D, or with a stroke. Went with Green to the store m May laet, and looked at romp ten bags left there. One of them had one md rotted out, and ho put a patch over it, and marked it so that bo should know it again. The wheat mit was very bad, mouldy and black, not at all like Green's at tho time of threshing. Kxamined tho sewing of tho bagfl, and was sure they had been opened and ri'-scwn sincn he eewpd them nt the threshing mill. The seconds wheat had been put into old bags. Thomas Bean and George Bean, respectively feeder and driver of a threshing machine, stated that they threshed a quantity of grain for Taylor and Morton, of tho Hook, m 1882. It was all very much damaged by wet, and had a quantity of Danish oats m it. Ihe samplo of bud wheat ehown (taken from the ten bags returned from tho store) resembled Taylor and Morton's wheat very much. Their bags wero not marked at all that they wero aware of, and the grain was sent to defendants' store »t the Junction. Robt. Forest, farmer, stated thut he bought 20 bags of tho damp wheat for seed at 4s. Tho plaintiff's crop m 1882 was very good, whon growing and when threshed. Saw ten eaoks shown him by plaintiff. They were full of all sorts of rubbish. This closed tho plaintiff's case. Mr Perry having stated tbo caea for the defence called tho following witnesses. In concluding his statement ho directed the attontion of tho jury to the fact that plaintiff's i witnesses had ali spoken of tho condition of tho grain carted direct from tho threshing mill to the store m May. Thera wero other deliveries m July and August, but no evidence of tho quality of these deliveries had been given. R. McOwen, manager of the Bank of Now Z'aUiid at Waimate, stated that m May, 1882, Green was indebted to tbo bank m £120. Ho prossed him for psymont, and eventually arranged to give him time if he would deliver enough grain to the defendants' store at the Junction to cover hia indebtedness. About tho end of May he met Green, who told him ho had dolivered tho grain, and gave him an order (dated 20th May) to receivo the proceeds whon tho wheat was sold. Witness received tho money £140, m July following. Georgo Wilkin, manager for dofendantß at Aahburton, stated that he was temporarily m charge of the company's agency at Waimate m May, 1882, during the absence of Mr Secretan. He went and saw Green about sending wheat to a salo at the Junction, and Green agreed to Bend down a sample of 3000 bushels, on which ho placed a reserve of 5s 2d exclusive of bags, the highest prico current being 4s 4d. Two sample bags wero sent, and being offered for sale wero passed m. Green sent iomo 220 packs m, to be stored, merely on the 7th and three following days. Witness never saw it, and never made any arrangement about tolling. Green told him most of his wheat was damaged. It was not a oorrmorj praotioo m his exporienoe to sample grain re> ceived for storage merely, except for one'f own information, but if grain waa received for storage plainly damp, the fact would b< noted on the receipts, and if dangerously wel would bo rejected. Henry H. Secretan, agent for tbedefendan! company at Waimate, eaid he was absent fo: about a month, from April 24th, 1882. Whei ho returned there win some wheat of pain tiff's m store, and mare came m during Jul; mid August. On the 20th July there wor 280 sacks m etore, and he made an advanc of £140 againot them. Ho was not then, no at any time afterwards, instructed by Gree not to sell at Ics3 than 4s 8d per buibel. A the September auction 1300 bushels of velvt chaff and 150 of red chaff were offered o Greon's account, by a sample bag taken i random from each pile. The velvet chaff wt knocked down to Meek at 4s 4d, and the re chaff was passed mat about 3s lOJd. Meek 19 sampler carao up a few days aftorwards at

rejected about half the, 1300 bushols of wheat as damaged, discolored, chipped, sprung and grown, nnd the quantities of each kind a! furniehed by Green were found to be very incorrect, there being more red chaff and lese velvet Mian ho stated. Meek took Ifi7 sacks, ami the account sales were furnished to Qre-n on October Otlr. Green frequently called at the office to aak if the rest of the wheat was iold, and witnesi lold him not yet, but he would sell at the first favorable opportunity, and Green mode no objection. Sample! were Bent. toDunedin of the different qualities, Bnd 184 nicks sent down, 10 being left behind as only fit for pig feed. The prices obtained were the full value of the wheat sent. Grern'a wheat wa? not mixed with anyone eleo'e. It was Btacked m a pile by itself. Grron had said he came to witness with the account pales from Dunedin j he never did. He had a conversation with Green m the et.orc, Pardew being present. A number of bigs were so damp that they were not piled with the rest, but were left m the gangway. Witness told Green he ought to be ashamed of himself for rending such stuff to the store, and he said they hud been brought by mistake j he would have them taken away at one?, but ho did not. He took them away on the 10th May IbbL In the conversation between witn»a», McOwen, LeCren, nnd Green at the sale, no limit of price was fixed by Green. After the account sales from Dunedin had been given to Green he made no complaint whatever till August of this year. A letter waa reccivod from Mr Clement, on Greon's behalf m March, asking for the names of (he purchasers merely. This sample (one of the good ones) contains both D.inish and Tartarian oats. I picked some out myself this morning. To Mr White : There has never been any mistakes or confusion of ownership m our Btore. Kach owner's grain ia stacked separately, whether a large or small lot, which ia easy enough to do. When grain is sampled on being brought into store, it is usual to note Dn the receipt anything very wrong. Our tickets do not contain the words "received m good order and condition," so that it vras not important to note the actual condition of s;rain received. I received J. H. Taylor'» (called Taylor & Morton's by other witnesses) wheat. It wa» not stored near Green's. I Imd it cleaned because it wbb badly cleaned m threshing, and had beon dried on the floor. Cannot say whether it had Danish oats m it. Sreen'a wheat was not cleaned. At 5.30 p.m. the Court adjourned till 11 a.m. to-day.