DISTRICT COURT.

Timaru Herald, Volume XXXIX, Issue 2830, 18 October 1883, Page 3

DISTRICT COURT.

TlMAKU— Wednbspat, Oct. 17. (Before His Honor Judge Ward.) CIVIL CASE. Samuel Green v. New Zealand Loan and Mercantile Agency Company — Claim £173 15s lOd damages. Mr White, with Mr Clement, for plaintiff, Mr C. Perry for defondants. This case, commenced tho previous dny before a special jury of four, was resumed, Mr Perry calling tbo following ovidenco for the defence: — Edward James Pardow, Btoreman for tho defendant Company at Studholmo Junction, stated tbst from tho Bth to the 17th May, 1882, the two men Harris and Welsh delivered at tho store 235 raoks of wheat for plaintiff, and from the 3rd July to tho 28th August more -wbs delivered, making a total of 361 sacks. White was also m tho store when the lots were delivered m May. When ho tested the first dray load be asked tho carters if they considered that good wheat, and told them it was far from being good. Some was good, but some vrss damp and sprouted, chipped, and dingy m color. Ihe deliveries m July and August were n'so mixed, and some bags he did not stack with the rest, they being " next door to rotten." Was present at a conversation between tho plaintiff and Mr Seoretan m August whilo the deliveries were going on. He sampled some bags m Green's presence, and showed the samples to Secretan, who asked Groeu if he was not ashamed to put bucli stuff into tho store. Green said tho sacks had been tent by mistake, and he would take thorn away and bring others for them, but he did not do co. After giving evidence of the salo of Bomo to Messrs Meek at the September auction, witness said the remainder, 191 sacks, was reclassed and flacked ngain, on the 7th September. 184 sack a were sent to Dunedio, 10 being left 83 rotten. Them wero stacked near a pile of Danish oatß. Green's stuff was never winnowed, except about two sacks of leakage from mouso hol p s. There could bo no mistaking between GreoD's sacks and Taylor and Morton's. Groen's wero Calcutta, and Taylor and Morton's Dundeo sacks. To Mr White : Tho whole lot was shifted on September 7th, to allow Meok's sampler to get what ho wanted, and tho bags left wero removed to the lower end of the etoro. Taylor and Morton's wheat was cleaned m October. It came m dirty from the mill, aud Mr Taylor wished it to bo cleaned. He considered the sample, as good as Greon's after Meok's lot had been taken oway. The bags too damp to etack came m July and August. Did not specify on tho receipts the condition of the grain, not having been instructed to do bo by the manager, but objected to stack some bags with tho reßt, and put them m a passage alongside the staok. None of Green's sacks were emptied, but some seven or eight wero opened to be filled up, to make leakages goad, and this was done before Taylor's wheat was dreesed. Told Green during the delivery that tho wheat was not m good condition. John White stated that ha was employed m the store m May, and helped to staok Green's deliveries that month. Saw some oi it sampled by Pardew, that was damp and clammy nnd dingy m color. Mentioned it to Welsh, who said Green had sampled it and it was all right. He denied that he had ever told Harris that Green's wheat had been put through the fanners, Mobos White, accountant to defendants at Timaru, ttited that ho attended tho September auction to buy wbeat Io fulfil an order. Examined Green's wheat, as a buyer. Some of it was very good ; some of it soft, sprout ing, mouldy, and sour to tho taste. Did nol buy any. John Griffiths, storoman to Messrs Meok Oamaru, stated that he was at tho etoro ot Septembor 7th to cample wheat bought bj Meek's manager at tho auction. Took 16' bags of velvet chaff, and rejected the rest ai not equal Ij s-implo, being mouldy and mor< or lees sprung, and somo of it was warm Would cay tbo rejected lot might bo worth 3 all round then ; wheat, espocially damaged had fallen m value since. Alexander Cameron, 6alesman to tho Com pany at Dunedin, gave evidenco of the ro ceipt of 181 bags at Dunrdin iv January last and the sale of tho samo to Roy so, Stead am Co. Sampled Bomo of il, ond considered th prices obtained for the different qualitie were fair market values. Evon the best wa only second class, and most of it was mould; and Bprung. To Mr White : Having heard the descrip tion given of the wheat when stored i August, as chipped, sprung, damp, broker discolored and smelling, did not think i would necessarily bo woreo m January tha the wheat he Baw. F. LoCren was called as to the convorsalio alleged by plaintiff to have taken place m h: pretence, when he (plaintiff) placed a resen of 4s 8d on his wheat. Witness denied thi > anything of the sort had ever been said m h i presence. He would have noticed it, ha i thero been, 4s 8d being co much above th i market value, the highest prices for the ver • beat wheat then being 4s 4d to 4s 6d. 1 This closed the evidence for tho defenc ond Mr Perry addressed the jury. Tho mai i things tho plaintiff had undertaken to proi t were that ho cent his wheat to defendant • store at defendants' requoßt ; thut ho put. t reserve of 4s 8d upon it; that ho delivered 5 m good condition ; and that somehow h 3 wheat had been changed and rubbish bu

ny sliMilod for it. Tho evidence of Mr McOwi r» had proved that ho nnlly cent it at tl ?y request of the Bank, who got an order receive tho proceed?. That showed th c. plaintiff had forgotten tbo rircumstnnc n- under which ho a^nt tho grain to the stor ro Tho fixing of the rceervo was an essinti Id point, and the cvidonco of Mr Wilkin and A lg Secrotnn showed that no arrangoment wi le made about reserve, excopt for Ilio fir - auction, when no grain had been dolivere i- and for tho purposes of that sain a reeervo < j- 5s 2d was put on tho samples sent. X m LoCrrn and Mr McOwon woro stated by tl c. plaintiff to havo been present when tho roson If of 4j 81 waa put on, and both emphaticull )o denied that anything of tho kind wi !o said m their preapneo. Mr Penretan had maci r an advance upon tho groin and told Green li y would Fell at tho first fair offer, and Qrco ir mado no objection ; did not object, when >om » was cold at ■!( 4d, and even now only olaime is 4s 4d, not bis alleged reserve. As to tho cot n dition of the grain, ho pointed out that plair n tiff's witnesses wero men who hod no interer c m remembering what its condition was, nn o only ono of them epoko of tho condition of th d lato deliveries. It wai shown that tho dam d and damoged wheat — ono or two hundre >. bags, tho plaintiff aaid — was stored m th o barn, where tho good wheat not sent m Ma '. was nlso stored. Probably tliat wou!i k account for damp wheat being taken to th ? Junction m July and Aujunt — tho two lot o got mixed m the barn. Tho ovidonce of th ', jtorpmen nnd tho manager was sufficient o\ c tho point, but tho evidenco of Mr M. Whit n and Mr Griffiths was conclusive that somo o a the wheat was damp when sent m, thoy havin, found it fo a few days after tho lost deliverj t Tho chnrgo of changing tho wheat ho con 3 eidcrod wad completely disproved, and oi n every point he asked for a verdict for de 0 Pendants. J Mr Wliito followed. Tho slrong point i: » plaintiff's caso was that h ; 8 wheat was gooi > when put into etoro, and therefore th inferior stuff sold at Dnnedin could no 1 havo been hi*. By some blunder r neglioenco plaintiff's wheat had beei > changed, or mixed co that it could not bi - separated with Bomo inferior duff, and h 1 suggested that Taylor and Morton's was tha inferior stuff. Thero was plenty of room fo 1 mismanagement, ho argued, us tho ezchangi i of manngeri", and tho manager living awaj • from the store, left everything m Iho hands o , tho etoreman, who sometimes had inst.-uetioni , and sometimes had not. It wus all v>'ry we] • for tho defendants, on finding some bad wheu' f in the store, to Eay it wa< the plaintiff's. Thei had no right to do that after sampling hi 8 wheat and rejecting only ten ends, rejecting t them so completely aj to leave them out o , tho slack. They, of course, sampled foi ; their own protection, nnd no doubt rejectee ' all that deserved to bo rejected. With re sped to tho ten sacks, it was rennrkablo thai - they did not brar eilhor of Iho marks put I upon bagi of damp or damaged grain at th( I threshinp, and remarkablo that they eontninec Danish oate, when plaintiff had never had anj ■ on hia farm. He iifkeci tho jury to fay there ) had been some n iitake, and suggested thai 100 much roliunce flight not to ho placed or tho ovidenco of tho elaromnn. Tho credit of the Company had to be maintained, and il would not do to admit that such mistakes were mado. Aa (o tho value, bo submitted that if any part wns worth -U id tho whole was. Meek'a rejection of a part could not prejudice tho plaintiff, because ho was not present. Mr White concluded by offering Bn ; explanation of plaintiff's delay m bringing the action, and tho character of Mr element's first letter to tho agent. Asking for the names of tho purchapers was as clear an expression of dissatisfaction as could bo given j it was asking for information from which other information to check defendants' statement could bo obtained. Ilis Honor then summed up, briefly Btating the particulars of cluim and pleas m reply, and running over tbo principal evidenco aa to the alleged reseive price, tho condition of the grain when received into and delivered from tho etorc. As to the pricej obtained, ho *aid tho jury might take it for cranteil that, they were fair market prices. Plamt-ff't counsel asked them to supposa that tho Company had , substituted; Taylor and Morton's wheat for Green's, but what they would gain by it did not appear. This was a charge against the Company of a eerioua description, and on one sido or the other there had been .very flat perjury committed. Tho Company were charged with taking Green's wheat from the original sacks, placing rubbish m thorn, and soiling it to Borne other person as Groen's wheat. Mr White : Not intentionally your Honor. His Honor could not conceivo of its being done otherwise than intentionally if done at all. Tho defendants' storeman had sworn distinctly that the sacks wero branded. In concluding, His Honor said it was the duty of tho jury to Bay whether thero was a do> i liberate attompt at fraud on one tide, oi deliberate robbery and perjury on the other. Tho jury retired for about half an hour, when they returned with a verdict for dofondants. , Hid Honor intimated that n» usual cjst! , would follow tho verdict. Ho thanked the i jury for their attondanco, and tho Court ad- . journed.